FAMILY COURT OF AUSTRALIA
| PAVONE & PAVONE AND ORS | [2015] FamCA 100 |
| FAMILY LAW – PRACTICE & PROCEDURE – Procedural fairness – Where the husband gave short notice of his inability to attend the trial – Where the husband was content for the trial to proceed in his absence and did not seek an adjournment – Where the trial proceeded – Where in the circumstances the husband was not denied procedural fairness FAMILY LAW – PROPERTY SETTLEMENT – Where the applicant wife and first respondent husband sought property settlement orders as between themselves – Where the spouses created two private corporations, a self-managed superannuation fund and a partnership; the two corporations being joined to these proceedings – Where substantial uncertainty remains about the current financial affairs of the spouses and the various entities they created – Where it is impossible to fairly adjust the spouses’ property interests in ignorance of the comparative values of their property interests – Where none of the spouses’ assets are jointly owned and they are not jointly indebted – Where, in the circumstances, it is not just and equitable to adjust the spouses’ property interests FAMILY LAW – PROPERTY SETTLEMENT – Spousal maintenance – Where refusal to make a property adjustment order does not preclude the court from making a spousal maintenance order – Husband to conditionally pay to the wife weekly spousal maintenance FAMILY LAW – PROPERTY SETTLEMENT – Third party orders – Where the Commissioner of Taxation intervened and sought to recover all outstanding assessed taxation liabilities due to him by all the parties – Where the intervener proposed that one of the spouses’ corporations should use its assets to pay the liabilities on behalf of all other parties, even though it has no liability of its own to the intervener – Where the rights of some other creditor of the corporation could be trammelled if such orders were made – Discussion of ss 79 and 90AE of the Family Law Act – Where, in the circumstances of this case, no orders are to be made under s 79, then no occasion arises to invoke s 90AE – Where, pursuant to s 78, it is declared that the spouses are indebted to the intervener and they are ordered to pay those debts |
| Corporations Act 2001 (Cth), ss 459A, 461, 1337C Family Law Act 1975 (Cth), ss 75, 78, 79, 81, 90AA, 90AE, 90AK Judiciary Act 1903 (Cth), s 79 Partnership Act 1892 (NSW), s 35 Supreme Court (Corporations) Rules 1999 (NSW), rr 1.3, 1.7, 2.2, 2.4, 2.6, 2.7, 2.13, 5.4, 5.5, 5.6 |
| AC and Ors v VC and Anor (2013) 49 Fam LR 276 Allesch v Maunz (2000) 203 CLR 172 Atco Controls Pty Ltd (in liq) v Newtronics Pty Ltd (recs and mgrs appt)(in liq) [2009] VSCA 238 B Pty Ltd and Ors v K and Anor (2008) FLC 93-380 Balfour v Balfour [1919] 2 KB 571 Biltoft v Biltoft (1995) 19 Fam LR 82 Cohen v Cohen (1929) 42 CLR 91 |
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- AGLC
- Pavone and Pavone & Ors [2015] FamCA 100
- Case
- [2015] FamCA 100
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the husband had been denied procedural fairness by the trial proceeding in his absence, given he had provided short notice of his inability to attend but had not sought an adjournment. Furthermore, the court had to consider whether it was just and equitable to adjust the spouses' property interests, given the lack of jointly owned assets or debts and the significant financial uncertainties. The court also had to assess the appropriateness of making third-party orders, specifically concerning the Commissioner of Taxation's claim and the proposed use of a corporation's assets to satisfy those liabilities, and whether spousal maintenance should be ordered.
Austin J found that the husband had not been denied procedural fairness, as he was content for the trial to proceed in his absence. Regarding property settlement, the court determined that it was not just and equitable to make any adjustment orders under s 79 of the *Family Law Act 1975* (Cth) due to the impossibility of fairly assessing the parties' interests in ignorance of their comparative values. Consequently, the court found no occasion to invoke s 90AE of the Act in relation to the Commissioner's claim. However, the court did make orders for spousal maintenance, requiring the husband to pay $800 per week to the wife, with the payments to cease upon specific events related to the sale of property and cessation of business activities. Pursuant to s 78 of the Act, the court declared the wife indebted to the Commissioner for $115,417.23 and the husband indebted for $196,491.01, ordering them to pay these amounts within two months.
Orders
Orders of the court
1.
Order 2 made on 14 March 2013 is discharged.
2.
The husband shall pay to the wife spousal maintenance of $800 per week on the following conditions:
(a) The first payment is due seven (7) days from the date of these orders.
(b) The wife shall forthwith notify the husband in writing of the banking account into which payments are to be made.
(c) The husband shall deposit the payments directly into that account.
(d) This order is discharged upon the occurrence of the last of the following events:
(i) Completion by Pavone Pty Ltd of the sale of the two parcels of real property known as 1 and 2 C Street, Suburb C;
(ii) Completion by the husband of the sale of the business known as “D Pty Ltd”;
(iii) Cessation of the husband’s conduct of the business known as “D Pty Ltd” and the termination of the husband’s use of the ABN associated with his conduct of that business.
3.
Pursuant to s 78(1) of the Family Law Act it is declared that:
(a) The wife is indebted to the Commissioner of Taxation in the sum of $115,417.23.
(b) The husband is indebted to the Commissioner of Taxation in the sum of $196,491.01.
4.
Pursuant to s 78(2) of the Family Law Act:
(a) The wife shall pay the amount due to the Commissioner of Taxation pursuant to Order 3(a) hereof within two months of the date of these orders.
(b) The husband shall pay the amount due to the Commissioner of Taxation pursuant to Order 3(b) hereof within two months of the date of these orders.
5.
Costs are reserved for 28 days.
6.
Any and all other outstanding applications are dismissed.
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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