Pelkas & Dellis - [2023] FedCFamC1F 605

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Pelkas & Dellis [2023] FedCFamC1F 605

File number: SYC 5179 of 2019

Judgment of: REES J

Date of judgment: 24 July 2023

Catchwords: FAMILY LAW – PROPERTY – Two pool approach – Where pool one consists of the half interest in the property inherited by the respondent after the parties’ separation – 15 year de facto relationship – Where there is significant disparity with respect to contributions in the second pool – Where the respondent helped pay the applicant’s mortgage payments – Robb and Robb contributions – Where the children’s father provided limited financial assistance by way of child support – Where the respondent has greater assets and earns greater income – 35 per cent to the applicant and 65 per cent to the respondent.

Legislation: Family Law Act 1975 (Cth) ss 90SM(3),(4)

Cases cited: Robb & Robb (1995) FLC 92-555

Division: Division 1 First Instance

Number of paragraphs: 89

Date of hearing: 20 July 2023

Place: Sydney

Counsel for the Applicant: Mr Jackson

Solicitor for the Applicant: McCabe Partners Lawyers

Counsel for the Respondent: Mr Givney

Solicitor for the Respondent: McGrath Dicembre & Company
ORDERS

SYC 5179 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS PELKAS

Applicant

AND:
MR DELLIS

Respondent

order made by:

REES J

DATE OF ORDER:

24 july 2023

THE COURT ORDERS:
1.That within three months of the date of these orders, the respondent pay to the applicant the sum of $508,061.
2.That other than as provided in Order 1, each party shall be solely entitled to all assets both real and personal in his or her possession at the date of these orders.
3.That in the event that the respondent does not make the payment in Order 1 by the specified date, then the respondent shall do all things required to sell the property at B Street, Suburb C and, from the proceeds of sale, pay to the applicant the sum of $508,061 together with interest from the due date of payment in Order 1 until payment, calculated in accordance with the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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 Pelkas & Dellis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975

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 Pelkas & Dellis

Details

AGLC: Pelkas & Dellis [2023] FedCFamC1F 605
Case: [2023] FedCFamC1F 605
Decision Date

CaseChat Overview and Summary

Pelkas & Dellis is a case involving a dispute between the applicant, Pelkas, and the respondent, Dellis, over the division of property acquired during their relationship. The case was heard in the Family Court of Australia. The central issue before the court was how to fairly divide the assets accumulated during the parties' de facto relationship, particularly focusing on two pools of property. Pool one, consisting of assets acquired before the relationship, and pool two, which includes assets acquired during the relationship.

The legal issues revolved around the equitable distribution of the assets from pool two, given the significant imbalance in the parties' contributions to these assets. The court had to consider factors such as the contributions made by each party, both financial and non-financial, towards the relationship and the assets in question. Furthermore, the court had to determine the appropriate division of assets to achieve a just and equitable outcome.

The court found that the contributions of both parties, while not equal, were sufficiently balanced to warrant no further adjustments beyond what was proposed. The court acknowledged the significant disparity in financial contributions but emphasised the importance of achieving a fair outcome that recognises both parties' contributions to the relationship and the assets acquired. The final decision resulted in the applicant receiving 35% of the second pool, amounting to $791,888. The respondent was required to pay the applicant $508,061 to balance the division of property, while retaining the opportunity to keep the Suburb C property.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Overall, I consider that the adjustments in favour of the respective parties are evenly balanced and I would make no further adjustment.CONCLUSION The applicant will receive 35 per cent of the second pool or $791,888. She will retain property totalling $283,827 so the respondent must pay her $508,061. He wants to retain the Suburb C property and will be given the opportunity to do so.

Ratio Decidendi

Legal Principle Established

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File number:	SYC 5179 of 2019
Judgment of:	REES J
Date of judgment:	24 July 2023
Catchwords:	FAMILY LAW – PROPERTY – Two pool approach – Where pool one consists of the half interest in the property inherited by the respondent after the parties’ separation – 15 year de facto relationship – Where there is significant disparity with respect to contributions in the second pool – Where the respondent helped pay the applicant’s mortgage payments – Robb and Robb contributions – Where the children’s father provided limited financial assistance by way of child support – Where the respondent has greater assets and earns greater income – 35 per cent to the applicant and 65 per cent to the respondent.
Legislation:	Family Law Act 1975 (Cth) ss 90SM(3),(4)
Cases cited:	Robb & Robb (1995) FLC 92-555
Division:	Division 1 First Instance
Number of paragraphs:	89
Date of hearing:	20 July 2023
Place:	Sydney
Counsel for the Applicant:	Mr Jackson
Solicitor for the Applicant:	McCabe Partners Lawyers
Counsel for the Respondent:	Mr Givney
Solicitor for the Respondent:	McGrath Dicembre & Company

SYC 5179 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS PELKAS Applicant
AND:	MR DELLIS Respondent

order made by:	REES J
DATE OF ORDER:	24 july 2023