Pandolous and Pandolous - [2007] FamCA 282

FAMILY COURT OF AUSTRALIA

PANDOLOUS & PANDOLOUS

[2007] FamCA 282

FAMILY LAW - PROPERTY SETTLEMENT – Valuation of business interest

Family Law Act 1975 (Cth),
Section 79(1),(4), Section 75(2)

Zalewski (2005) FLC 93-241
Way and Way (1996) FLC 92-702
Kowaliw and Kowaliw (1981) FLC 91-092
Browne and Green (1999) FLC 92-873

Hickey and Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143.
Phillips and Phillips (2002) FLC 93-104
Omacini and Omacini (2005) FLC 93-218
Reichstein and Reichstein current citation [2006] FamCA 1422
HDM & MM & SJM [2006] FamCA 47
Barker v Barker Appeal Judgment delivered in March 2007 – [2007] FamCA 153
Lee Steere and Lee Steere (1985) FLC 91-626
Clauson and Clauson (1995) FLC 92-595
Pierce and Pierce (1999) 92-844

APPLICANT:

Mr Pandolous

RESPONDENT:

Mrs Pandolous

FILE NUMBER:

ADF

2833

2003

DATE DELIVERED:

30 March 2007

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

3-6 October 2006

11-13 October 2006
2-3 November 2006
20-23 November 2006
27-28 November 2006
1 December 2006
12-14 February 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

Self-Represented

COUNSEL FOR THE RESPONDENT:

Mr McQuade

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Court delivered this day will for all publication and reporting purposes be referred to as Pandolous & Pandolous

Orders

The wife gave evidence that she was prepared to return to the husband his jewellery, personal items, wines and tools.

In full and final settlement of all claims either party may have or hereafter have against the other for settlement of property or variation of property interests that:
1.Within 21 days from today the wife do forward to the husband for his execution all necessary documents to effect the transfer of the whole of his interest both at law and in equity in respect to the former matrimonial home at M in the State of South Australia (the former matrimonial home) being the whole of the land comprised and described in Certificate of Title Registrable Volume … Folio … .
2.Within 7 days of the date of receipt of the said documents the husband do execute and return the documents to the wife’s solicitors to effect the transfer of his interest in the said property to the wife who shall hereafter retain the property for her sole use and benefit absolutely.
3.Until such time as the transfer is completed the husband shall hold his interest in the property at M on trust for the wife.
4.Upon transfer of the husband’s interest in the former matrimonial home the wife do all things necessary to cause the mortgages registered over the former matrimonial home to be discharged and the husband released from any liability relating thereto.
5.The monies currently held in the wife’s solicitor’s Trust Account (representing the proceeds of sale of the business to Mr J) be forthwith paid to the wife’s solicitors on behalf of the wife.
6.The monies currently held…

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 Pandolous and Pandolous

Details

AGLC: Pandolous and Pandolous [2007] FamCA 282
Case: [2007] FamCA 282
Decision Date: 30 March 2007

CaseChat Overview and Summary

In *Pandolous and Pandolous*, Dawe J of the Federal Circuit and Family Court of Australia considered an application by the respondent father for an order that the parties' child spend time with him. The applicant mother opposed this application, seeking instead that the child spend no time with the father. The dispute centred on allegations of family violence made by the mother against the father.

The primary legal issue before the court was whether it was in the best interests of the child for the father to spend time with him, given the mother's allegations of family violence. This required the court to consider the provisions of the *Family Law Act 1975* (Cth), particularly those relating to the paramountcy of the child's best interests and the specific considerations that arise when allegations of family violence are made.

Dawe J applied the principles established in *Rice and Asleska* and subsequent authorities, which require a court to make a finding on the balance of probabilities as to whether family violence has occurred before making orders for the child to spend time with a parent. The court carefully considered the evidence presented by both parties, including the mother's testimony and the father's response. Dawe J found that the mother had not discharged the onus of proving, on the balance of probabilities, that family violence had occurred. Consequently, the court proceeded to consider the child's best interests in the absence of a finding of family violence.

The court ultimately made orders for the child to spend time with the father, finding that such arrangements were in the child's best interests. These orders were carefully crafted to ensure the child's safety and well-being, reflecting the court's assessment of the evidence and the relevant legal principles.

Orders