Pelley & Pelley - [2022] FedCFamC2F 933

Federal Circuit and Family Court of Australia
(DIVISION 2)
Pelley & Pelley [2022] FedCFamC2F 933

File number(s): NCC 2928 of 2020

Judgment of: JUDGE CARTY

Date of judgment: 14 July 2022

Catchwords: FAMILY LAW – PROPERTY – final property proceedings –damages for workplace injury received by husband post separation – failure to make proper financial disclosure – non-compliance with injunction – consideration of proposed add backs – assessment of contributions-consideration of waste – consideration of whether husband engaged in a course of violent conduct towards the wife during the marriage – consideration of whether husband’s conduct had a discernible impact upon the wife’s contribution as homemaker and parent – consideration of relevant matters in s.75(2) – consideration of what orders are just and equitable

Legislation:
Family Law Act 1975 (Cth) ss 4AB, 75(2), 79, 114

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth) r 12.06(2)

Cases cited:
Aleksovsky & Aleksovsky (1996) FLC 91-705

Clauson (1995) FLC 92-595

Collins (1990) FLC 91-144

Dickons & Dickons (2012) 50 FamLR 244

Friar v Friar (2015) 52 FamFLR 275

In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Kowaliw (1981) FLC 91-092

Keating & Keating [2019]FamCAFC 46

Kennon & Kennon (1997) FLC 92-757

Kite & Kite [2011] FamCAFC 13

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513

AJO and GRO (2005) FLC 93-218

Parshen.L v Parshen.JF (1996) FLC 92-720

Standford & Stanford (2012) FLC 93-495

Weir & Weir [1992] FamCA 69

Division: Division 2 Family Law

Number of paragraphs: 194

Date of last submission/s: 25 February 2022

Date of hearing: 24 & 25 February 2022

Place: Newcastle

Counsel for the Applicant: Mr Schonell

Solicitor for the Applicant: Countrywide Legal & Business Services

Counsel for the Respondent: Mr Bithrey

Solicitor for the Respondent: R J O’Halloran & Co Solicitors & Attorneys
ORDERS

NCC 2928 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS PELLEY
Applicant

AND:
MR PELLEY
Respondent

order made by:

JUDGE CARTY

DATE OF ORDER:

14 july 2022

THE COURT ORDERS ON A FINAL BASIS THAT:
1.Within 14 days from the date of these orders the parties do all things and sign all documents to transfer the funds held in the trust account of Fox & Thomas Solicitors to be paid to the husband.
2.Within 14 days from the date of these orders the parties do all things and sign all documents to transfer the funds held in the trust account of RJ O’Halloran Solicitors to be paid to the husband.
3.Within 14 days from the date of these orders the parties do all things and sign all documents to transfer the funds held in the trust account of Countrywide Legal & Business to be paid in the following manner:
(a)The sum of $70,574.00 to the wife; and
(b)The balance to the husband.

4.Within 28 days of the date of these orders the husband will vacate the property situate and known as B Street, Suburb C in the state of…

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 Pelley & Pelley

Details

AGLC: Pelley & Pelley [2022] FedCFamC2F 933
Case: [2022] FedCFamC2F 933
Decision Date

CaseChat Overview and Summary

The applicant wife and the respondent husband, married for 20 years, have two children. The wife seeks final financial orders which would entitle her to receive property with a value equivalent to 85% of the net assets, while the husband contends for his entitlement to property with a value equivalent to 75% of the net assets. The court identified the assets, liabilities and financial resources of the parties and found that the husband had failed to make proper financial disclosure, and had failed to comply with court orders. The court considered the contributions of the parties and found that the wife’s contributions as the primary homemaker and parent were each made significantly more arduous as a direct result of the husband’s violent conduct. The court considered the relevant matters in s.75(2) of the Family Law Act and found that there should be no adjustment to either party. The court considered what orders are just and equitable in the circumstances of this case, and found that the orders set out in the Reasons for Judgment were just and equitable. The court ordered that the husband vacate the former matrimonial home, and that the wife have the sole use and occupation of the property in order to prepare it for sale at the first opportunity. The court ordered that the wife receive property with a value equivalent to 40% of the net pool, and that the husband receive property with a value equivalent to 60% of the net pool.

Orders