Pavlic & Pavlic (No 3) - [2022] FedCFamC2F 1550

Federal Circuit and Family Court of Australia
(DIVISION 2)
Pavlic & Pavlic (No 3) [2022] FedCFamC2F 1550

File number(s): MLC 6470 of 2020

Judgment of: DEPUTY CHIEF JUDGE MCCLELLAND

Date of judgment: 10 November 2022

Catchwords: FAMILY LAW – PROPERTY – Where the applicant sought variation of final orders pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Applicant contends that the orders do not account for certain liabilities and therefore do not reflect the 43 per cent adjustment made to the applicant in the substantive proceedings – Where applicant contends that his indemnifying the respondent in respect of taxation liabilities has not been considered in the orders – Liabilities were appropriately considered in deducting liabilities from the assets to assess the net matrimonial property pool – Where counsel for the applicant agreed with the methodology of calculating the property pool in the substantive proceedings – Application dismissed.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13

Cases cited:
Halstron & Halstron [2022] FedCFamC1A 65

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

Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61

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

Division: Division 2 Family Law

Number of paragraphs: 26

Date of hearing: 10 November 2022

Place: Melbourne (via videolink)

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:

10 NOVember 2022

THE COURT ORDERS THAT:
1.The applicant husband’s application to vary final orders pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pavlic & Pavlic (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENT
DEPUTY CHIEF JUDGE MCCLELLAND:

By way of letter initially sent to my chambers on 7 November 2022, the solicitors for the applicant husband made submissions as to purported errors which they contend were made in my decision dated…

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 3)

Details

AGLC: Pavlic & Pavlic (No 3) [2022] FedCFamC2F 1550
Case: [2022] FedCFamC2F 1550
Decision Date

CaseChat Overview and Summary

The case of Pavlic & Pavlic (No 3) involved the applicant husband seeking to vary final orders made pursuant to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The husband contended that the orders did not account for certain liabilities and therefore did not reflect the 43 per cent adjustment made to him in the substantive proceedings. Specifically, the husband argued that his indemnifying the wife in respect of taxation liabilities had not been considered in the orders. The court had to determine whether the liabilities were appropriately considered in deducting liabilities from the assets to assess the net matrimonial property pool and whether the orders reflected the intention of the court.

The court found that the liabilities were appropriately considered in deducting liabilities from the assets to assess the net matrimonial property pool. The court noted that the husband's counsel had agreed with the methodology of calculating the property pool in the substantive proceedings. Additionally, the court found that the orders correctly reflected the intention of the court, having regard to the manner in which the husband presented his case and the orders proposed by the husband. The court dismissed the husband's application to vary the final orders.

The court's decision was based on the relevant legal principles and authorities, including the methodology of calculating the property of the parties and the effect of including a liability on the balance sheet. The court confirmed that including a liability on the balance sheet has the effect of the parties being assigned a portion of that liability, to the extent of the proportion of the adjustment of the parties' property that the court determined to be just and equitable on the facts of the particular case. In this case, the court found that the husband's indemnifying the wife in respect of taxation liabilities had been considered in the orders, and that the orders correctly reflected the intention of the court. Therefore, the husband's application to vary the final orders was dismissed.

Orders