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Pavlic & Pavlic (No 2)

Pavlic & Pavlic (No 2)

Case [2022] FedCFamC2F 1453 28 October 2022

Adjustment of Property

Superannuation

Family Law

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Federal Circuit and Family Court of Australia
(DIVISION 2)
Pavlic & Pavlic (No 2) [2022] FedCFamC2F 1453

File number(s): MLC 6470 of 2020

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 28 October 2022

Catchwords: FAMILY LAW – PROPERTY – Application for an adjustment under s 79 of the Family Law Act 1975 (Cth) – Where the parties own multiple properties and a family business – Where the parties agree that contributions during the relationship and post-separation are equal – Husband’s earning capacity considerably greater than that of the wife – adjustment of 7 per cent made in favour of the wife – Wife afforded opportunity to purchase the husband’s interest in the former matrimonial home.

Legislation:
Corporations Act 2001 (Cth) ss 181, 182

Evidence Act 1995 (Cth) ss 76, 79, 140(2)

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 12.3

Cases cited:
Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

C & C (2005) FLC 93-220; [2005] FamCA 429

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

DJM v JLM (1998) FLC 92-816; [1998] FamCA 97

Dovgan & Dovgan [2021] FamCA 306

Hickey and Hickey and Attorney-General (Cth) (2003) FLC 93-143; [2003] FamCA 395

Jabour & Jabour (2019) 59 Fam LR 475; [2019] FamCAFC 78

Kildea v Kildea (2007) 38 Fam LR 347; [2007] FamCA 1524

Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Manolis v Manolis (No 2) [2011] FamCAFC 105

AJO & GRO (2005) FLC 93-218; [2005] FamCA 195

Perrin & Perrin (No 2) [2018] FamCAFC 122

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Townsend & Townsend (1995) FLC 92-569; [1994] FamCA 144

Trevi and Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Division: Division 2 Family Law

Number of paragraphs: 170

Date of hearing: 26–28 April 2022

Place: Melbourne

Counsel for the Applicant: Mr McIvor

Solicitor for the Applicant: Coote Family Lawyers

The Respondent: Litigant in person
ORDERS

MLC 6470 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PAVLIC

Applicant

AND:
MS PAVLIC

Respondent

order made by:

DEPUTY CHIEF JUDGE MCCLELLAND

DATE OF ORDER:

28 OCTOBER 2022

THE COURT ORDERS THAT:
B Pty Ltd
1.The parties forthwith do all acts and things and sign all documents necessary to list the business operated by B Pty Ltd ("B Pty Ltd") for sale with a selling agent, with all plant and equipment and motor vehicles owned by the business to be included in the sale, namely:
(a)The Motor Vehicle 1;
(b)The Motor Vehicle 2 ;
(c)The Motor Vehicle 3; and
(d)The Truck;

2.The selling agent is to be as agreed by the parties or, in the absence of agreement:
(a)Within 14 days, the Husband is to nominate three (3) selling agents; and
(b)Within 7 days of receipt of those agents’ details, the Wife is to select one agent from that list to sell the business.

3.The parties follow…

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 Pavlic & Pavlic (No 2)

Details

AGLC: Pavlic & Pavlic (No 2) [2022] FedCFamC2F 1453
Case: [2022] FedCFamC2F 1453
Decision Date

CaseChat Overview and Summary

Pavlic and Pavlic is a case concerning property adjustment orders following the breakdown of the parties’ 24 year relationship. The husband and wife own multiple properties and a family business. The parties agree that their financial and non-financial contributions during the relationship and in the period subsequent to their separation were equal. The husband’s earning capacity is considerably greater than that of the wife. The wife wishes to retain the former matrimonial home and the husband agrees to orders that will permit that to occur in the event that she is able to raise sufficient funds to acquire his adjusted interest in that property. The court found that the disparity in the parties’ earning capacity and the husband’s access to a financial resource in the form of an ability to obtain directors loans in his capacity as a director of his brother’s business, to be such that the wife should obtain an adjustment, pursuant to s 75(2) of the Family Law Act 1975, of 7 per cent. The court orders that the business, B Pty Ltd, be sold and the net proceeds applied in accordance with the order. The wife is afforded the opportunity to purchase the husband’s interest in the former matrimonial home. If the wife is unable to raise the funds necessary to acquire the husband’s interest, the husband is to purchase the former matrimonial home. In the event that the husband is unable to pay the wife the amount necessary to acquire the former matrimonial home, the property is to be sold and the net proceeds applied in accordance with the order.

Orders