Pandelis & Pandelis

Case [2018] FamCAFC 66

FAMILY COURT OF AUSTRALIA

PANDELIS & PANDELIS [2018] FamCAFC 66

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Primary judge adopted a “two pool” approach – Husband argued the determination of contributions in relation to the main “pool” was against the weight of the evidence – Proper approach to assessment of contributions – Zyk and Zyk (1995) FLC 92-644 and Dickons v Dickons (2012) 50 Fam LR 244 considered – Husband contended the primary judge gave insufficient weight to his pre-separation contributions – Held primary judge erred in principle in assessing a particular contribution, but appellate interference was not warranted – Wife received a 10 per cent adjustment on account of s 75(2) factors – Held adjustment was not manifestly excessive – Primary judge understood the real impact of the assessment made – Clauson and Clauson (1995) FLC 92-595 considered – Inconsistency in reasons regarding husband’s tax liability – Found the primary judge erred by leaving the husband entirely responsible for the tax debt – Primary judge inappropriately differentiated between “matrimonial” and “non-matrimonial” debts – Miller and Miller (1984) FLC 91-542 considered – Appeal allowed – No order as to costs – Costs certificates issued.

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Superannuation – Form of orders – Neither party sought a superannuation splitting order at trial – Primary judge ordered an “equal division of superannuation” – No appeal against this decision or the form of the splitting order – Held the order does not achieve the outcome intended and does not comply with s 90MT(4) of the Family Law Act 1975 (Cth) – Procedural fairness appears not to have been given to the trustee – Necessary to afford the parties an opportunity to consider the form of orders the Full Court considers appropriate and to ensure notice is given to the trustee.

FAMILY LAW – APPEAL – Re-exercise of discretion – Primary judge’s orders set aside and timetable set out for the filing of minutes regarding the re-exercise of the discretion.
Family Law Act 1975 (Cth) ss 79, 75(2), 90ME(2), 90MT(4), 90MZD
Family Law (Superannuation) Regulations 2001 (Cth) reg 12
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124
Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
Clauson and Clauson (1995) FLC 92-595; [1995] FamCA 10
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Elford & Elford (2016) FLC 93-695; [2016] FamCAFC 45
G & G [2004] FamCA 1179
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
Miller and Miller (1984) FLC 91-542; [1984] FamCA 31
Norman & Norman [2010] FamCAFC 66
Prince and Prince (1984) FLC 91-501; [1984] FamCA 7
Zyk and Zyk (1995) FLC 92-644; [1995] FamCA 135
APPELLANT: Mr Pandelis
RESPONDENT: Ms Pandelis
FILE NUMBER: SYC 6905 of 2013
APPEAL NUMBER: EA 186 of 2016
DATE DELIVERED: 11 April 2018
PLACE DELIVERED: Newman
PLACE HEARD: Sydney
JUDGMENT OF: Thackray,…

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AGLC
Pandelis & Pandelis [2018] FamCAFC 66
Case
[2018] FamCAFC 66
Decision Date

CaseChat Overview and Summary

In the case of Pandelis & Pandelis, the appeal was brought before the Family Court of Australia, focusing on a property settlement dispute between the parties. The husband contested the primary judge's "two pool" approach in determining the contributions, arguing it was against the weight of the evidence. He also took issue with the assessment of his pre-separation contributions and the division of the superannuation. The wife, on the other hand, argued that the primary judge's determination was fair and appropriate.

The court needed to decide whether the primary judge's assessment of contributions was erroneous, whether the division of superannuation was correctly ordered, and if the tax liability distribution was just. The husband's argument about the pre-separation contributions was scrutinised against the cases of Zyk v Zyk and Dickons v Dickons. Additionally, the court evaluated the wife's 10% adjustment under s 75(2) factors and the consistency of the primary judge's reasoning.

The court found that the primary judge erred in principle when assessing a specific contribution but determined that appellate interference was not warranted. The court also held that the 10% adjustment was not manifestly excessive and that the primary judge understood the real impact of the assessment. However, the court found an error in leaving the husband entirely responsible for the tax debt and in differentiating between "matrimonial" and "non-matrimonial" debts. The court ordered the appeal to be allowed, the original orders to be set aside, and a new timetable set out for the filing of minutes regarding the re-exercise of the discretion.

The final orders included allowing the appeal, setting aside the primary judge's orders, issuing costs certificates to both parties, and adjourning the pronouncement of new orders until the parties complied with certain conditions. The form of the final orders was subject to the entry of the order in the Court's records.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders of Judge Henderson made on 10 October 2016 be set aside.

3.

There be no order as to costs.

4.

The Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

5.

The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

6.

The pronouncement of orders of this Full Court in substitution for the orders of Judge Henderson be adjourned to a date to be fixed being a date not later than 28 days after the parties comply with Order 7.

7.

Within 28 days of the date of these orders, the appellant husband and respondent wife provide to the Eastern Appeals Registry:

(a) A minute of order containing the orders foreshadowed at [81] of the reasons for judgment delivered herewith; and

(b) Evidence of compliance with s 90MZD(1)(a) of the Family Law Act 1975 (Cth).

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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