Pandelis and Pandelis - [2016] FCCA 2530

FEDERAL CIRCUIT COURT OF AUSTRALIA

PANDELIS & PANDELIS

[2016] FCCA 2530

Catchwords:
FAMILY LAW – Property – long marriage –assessment of contributions made by each party’s parents to assets and family– treatment of significant debt acquired post separation by each parent in order to maintain lifestyle for children – assessment of wife’s future needs.

Legislation:

Family Law Act 1975 (Cth) ss.75(2), 79

Cases cited:
Pierce & Pierce (1998) FamCA 74
Ferraro & Ferraro (1993) FLC 92-335

Applicant:

MS PANDELIS

Respondent:

MR PANDELIS

File Number:

SYC 6905 of 2013

Judgment of:

Judge Henderson

Hearing dates:

15-16 August 2016

Date of Last Submission:

16 August 2016

Delivered at:

Sydney

Delivered on:

10 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr Schonell

Solicitors for the Applicant:

Croker Edwards

Counsel for the Respondent:

Mr Lloyd SC

Solicitors for the Respondent:

Slater & Gordon Lawyers

ORDERS

By way of property alteration under s 79 of the Family Law Act 1975 the wife be entitled to the sum of $1,213,834 and the husband $624,033 of their total asset pool excluding superannuation being a split of 65% to the wife and 35% to the husband.
To bring into effect Order 1 the wife has 30 days to advise the husband in writing if she is able to retain the Property H property on the basis that the property at Property C is sold for no less than $1,325,000, the debts specified in order 4(a) to (f) are discharged and she pays to the husband 35% of the net proceeds of sale.
Upon the wife giving the husband such notice the property at Property C is to be forthwith placed on the market for sale at a reserve of no less than $1,325,000 by way of auction with the husband to have conduct of the sale.
Upon sale of the Property C property the proceeds to be paid as follows:
(a)To discharge all current mortgages;
(b)To discharge the current line of credit;
(c)To pay Ms M $87,000;
(d)To pay the wife’s (omitted) debt of $7,922;
(e)To pay Capital Gains Tax on the sale on the sale of Property N of $57,906;
(f)Payment of the costs of sale and the usual adjustments including solicitor’s fees;
(g)Pay the husband $624,033; and
(h)The balance is to be divided 65% to the wife and 35% to the husband.
The husband to pay school fees of $53,000 from his share of the sale proceeds.
In the event Property C sells for more than $1,325,000 the husband and wife to receive the additional sale proceeds on a 65/35 split in favour of the wife.
Simultaneously with the payment to the husband specified in Order 5 the husband transfer all his right title and interest in the home at Property H to the wife.
In the event the wife is unable to comply with order 2 then the husband is place the property at Property C on the market for sale by way of action at a reserve of no less than $1,325,000 and is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pandelis and Pandelis

Details

AGLC: Pandelis and Pandelis [2016] FCCA 2530
Case: [2016] FCCA 2530
Decision Date: 10 October 2016

CaseChat Overview and Summary

In the matter of Pandelis and Pandelis, Judge Henderson of the Federal Circuit and Family Court of Australia made orders concerning the property interests of the parties. The dispute involved the division of a pool of assets, including real estate and superannuation, and the allocation of debts.

The court was required to determine the appropriate property adjustment under section 79 of the *Family Law Act 1975* (Cth), considering the parties' contributions, financial resources, and future needs. Specifically, the court had to decide how to divide the net proceeds from the sale of certain properties, discharge various debts, and address the parties' respective superannuation entitlements and other miscellaneous assets.

Judge Henderson ordered a property alteration that entitled the wife to 65% of the total asset pool (excluding superannuation) and the husband to 35%. This was to be achieved through a complex series of steps involving the potential sale of two properties, Property C and Property H, with specific reserve prices and conduct of sale provisions. The orders detailed the order of priority for discharging mortgages, lines of credit, specific debts owed to third parties and the parties themselves, capital gains tax, and sale costs. The husband was also ordered to pay school fees from his share of the sale proceeds. Provisions were made for scenarios where the wife retained Property H, or if either party was unable to comply with the initial proposed property division, leading to alternative sale arrangements and distribution of proceeds. Furthermore, the court made specific orders regarding the husband's superannuation, directing a payment to the wife from his entitlement, and also ordered the equal division of frequent flyer points converted into vouchers.

Orders

Orders of the court

By way of property alteration under s 79 of the Family Law Act 1975 the wife be entitled to the sum of $1,213,834 and the husband $624,033 of their total asset pool excluding superannuation being a split of 65% to the wife and 35% to the husband.

To bring into effect Order 1 the wife has 30 days to advise the husband in writing if she is able to retain the Property H property on the basis that the property at Property C is sold for no less than $1,325,000, the debts specified in order 4(a) to (f) are discharged and she pays to the husband 35% of the net proceeds of sale.

Upon the wife giving the husband such notice the property at Property C is to be forthwith placed on the market for sale at a reserve of no less than $1,325,000 by way of auction with the husband to have conduct of the sale.

Upon sale of the Property C property the proceeds to be paid as follows:

(a) To discharge all current mortgages;

(b) To discharge the current line of credit;

(d) To pay the wife’s (omitted) debt of $7,922;

(e) To pay Capital Gains Tax on the sale on the sale of Property N of $57,906;

(f) Payment of the costs of sale and the usual adjustments including solicitor’s fees;

(g) Pay the husband $624,033; and

(h) The balance is to be divided 65% to the wife and 35% to the husband.

The husband to pay school fees of $53,000 from his share of the sale proceeds.

In the event Property C sells for more than $1,325,000 the husband and wife to receive the additional sale proceeds on a 65/35 split in favour of the wife.

Simultaneously with the payment to the husband specified in Order 5 the husband transfer all his right title and interest in the home at Property H to the wife.

In the event the wife is unable to comply with order 2 then the husband is place the property at Property C on the market for sale by way of action at a reserve of no less than $1,325,000 and is to have conduct of that sale and the wife is to place the property at Property H on the market for sale by way of auction at a reserve of no less than $1,800,000 and she is to have conduct the sale of that property. This order is to be complied with by the parties within 30 days of the wife electing not to retain the Property H property.

The following debts be discharged from the proceeds of sale of the properties as followed:

(a) Current mortgages;

(b) Line of credit up;

(d) Wife's (omitted)HELP debt of $7,906;

(e) Capital Gains Tax of $57,906;

(f) Usual conveyancing costs and costs of the sale;

(g) The balance is to be divided 65% to the wife and 35% to the husband with the husband to pay school fees of $53,000 from his share;

(h) If either Property C or Property H sell for more than the specified price the parties are to divide the increased sale proceeds on a 65/35 split in the wife’s favour.

10.

The parties may agree to vary these orders in the event the wife is unable to buy the Property H property and the husband chooses to either:

(a) Retain the Property C property and sell the Property H property with the wife to have carriage of the sale by way of auction;

(b) Retain the Property H property and sell the Property C property with the husband to have carriage of the sale by way of auction; or

11.

In either event the husband is to pay the wife $1,213,834 and the debts specified in Orders 4 (a) to (f), Order 5 and 65% of the sale price of Property H above $1,800,000 or of Property C above $1,325,000.

12.

This order is to be complied with within 60 days of the wife electing not to retain the Property H property

Superannuation

13.

Pursuant to s 90MT of the Family Law Act 1975 whenever a payment of the husband’s (omitted) Superannuation becomes payable the wife is to receive the amount of $122,922.50 and the husband’s entitlement in that fund is reduced accordingly.

14.

This order is binding upon the Trustee of the husband’s (omitted) Superannuation Fund after 30 days of the issue of these orders.

15.

Otherwise both parties retain all assets in their control and be liable for all debs or name.

16.

The husband is to do all acts and things to cash in his Qantas Frequent Flyer points into Woolworth’s vouchers and the parties are to divide those vouchers equally.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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