Pardoe & Pardoe - [2023] FedCFamC2F 767

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Pardoe & Pardoe [2023] FedCFamC2F 767

File number: MLC 10688 of 2021

Judgment of: JUDGE BLAKE

Date of judgment: 23 May 2023

Catchwords: FAMILY LAW – Property - application to proceed undefended – application granted – just and equitable property orders sought – application granted.

Legislation:
Family Law Act 1975 (Cth) ss 75(2), 75(2)(o), 79, 79(1), 79(2), 79(4).

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.33, 1.34, 1.34(2).

Cases cited:
Bevan v Bevan [2013] FamCAFC 116

Deng & Galinski [2021] FCCA 843

Dickons & Dickons [2012] FamCAFC 154

Eufrosin & Eufrosin [2014] FamCAFC 191

Lovine & Connor [2012] FamCAFC 168

Morgan & Valverde [2022] FedCFamC1A 133

Saso & Saso [2023] FedCFamC1A 65

Stanford v Stanford [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 39

Date of hearing: 22 & 23 May 2023

Place: Melbourne

Counsel for the Applicant: Mr Lovering

Solicitor for the Applicant: Heinz Law

Advocate for the Respondent: In Person
ORDERS

MLC 10688 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PARDOE

Applicant

AND:
MS PARDOE

Respondent

order made by:

JUDGE BLAKE

DATE OF ORDER:

23 MAY 2023

THE COURT ORDERS THAT:
1.The Applicant Husband has permission to pursue his application for property orders on an undefended basis as contemplated under rule 1.33 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (‘Rules’).
2.The matter proceed solely on the basis of the evidence filed by the Applicant Husband for trial.
3.Within 7 days of the date of these Orders, the Applicant Husband do all such acts and things to serve upon the Senior Master of the Victorian Supreme Court, a copy of these Orders.
4.IT IS REQUESTED THAT the Senior Master of the Victorian Supreme Court pay the funds invested in the name of Ms Pardoe, account number … and account number … totalling approximately $300,000 as follows:
(a)The sum of approximately $40,000 to B Accountants;

(b) The sum of approximately $160,000 to the Applicant Husband; and
(c)The sum of approximately $120,000 to the Respondent Wife.

5.The parties have liberty to apply in respect of the payment of funds as outlined in Order 4 above.
6.The Applicant Husband retain in law and in equity to the absolute exclusion of the Respondent Wife, the following:
(a)His share of the funds pursuant to Order 4 above;
(b)His Motor Vehicle 1;
(c)His Motor Vehicle 2;
(d)His Motor Vehicle 3;
(e)His Motor Vehicle 4;
(f)The recreational vehicle;
(g)The funds in all bank accounts in his sole name;
(h)His cash savings;
(i)His personal items and effects;
(j)His superannuation interests (if any);
(k)All liabilities in his sole name and he shall indemnify the Respondent with respect to such liabilities.

7.The Respondent Wife retain in law and in equity to the absolute exclusion of the Applicant Husband, the following:
(a)Her share of the funds pursuant to Order 4 above;
(b)Her Motor Vehicle 5;
(c)The funds…

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 Pardoe & Pardoe

Details

AGLC: Pardoe & Pardoe [2023] FedCFamC2F 767
Case: [2023] FedCFamC2F 767
Decision Date

CaseChat Overview and Summary

This matter, Pardoe & Pardoe, involves a property settlement application made by the husband under section 79 of the Family Law Act 1975 (Cth). The wife, who was unrepresented, had consistently failed to comply with procedural orders, leading to the husband seeking to proceed undefended. The legal issues before the court were whether the husband should be permitted to proceed undefended due to the wife's non-compliance, and if so, whether the court should grant property orders in light of the parties' contributions and section 75(2) factors. The court granted the husband's application to proceed undefended and found that it was just and equitable to alter the property interests of the parties. The wife elected to proceed based on the husband's evidence only, waiving her right to adduce any evidence or cross-examine the husband.

The court found that the husband and wife made equal contributions to the marriage, despite the wife's misuse of business funds and non-disclosure of her financial position. The court considered the husband's age, health, and the costs incurred due to the wife's non-compliance under section 75(2)(o) of the Act. The court ordered the funds held by the Supreme Court of Victoria to be split equally between the parties, with the wife responsible for paying the debt to B Accountants. The husband and wife were to retain their respective personal assets, resulting in an overall split of approximately 60% to the husband and 40% to the wife. This reflected a 10% adjustment in favour of the husband under section 75(2) of the Act, which the court deemed appropriate.

Orders