FAMILY COURT OF AUSTRALIA
| PENDERGAST & PENDERGAST AND ORS | [2019] FamCA 136 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where an order was made by consent that the husband provide specific financial disclosure – Where the husband seeks a certificate under s 128 of the Evidence Act 1995 (Cth) in relation to evidence in chief – Where a certificate should not issue in respect of evidence in chief unless the witness is compelled to give that evidence – Where s 128 is triggered by an objection – Where the husband deposes that he apprehends that without a certificate he would be subject to criminal penalties arising from past corporate related activities if he complies with the order made – Where the Court is satisfied that the evidence required by the order may prove that the husband has engaged in culpable conduct – Where the Court is satisfied that there are reasonable grounds for the husband to object to give that evidence – Where it is found that the husband is not required to comply with the order – Where the Court will give a certificate under s 128 if the husband nevertheless agrees to give the evidence. |
| Bankruptcy Act 1966 (Cth) ss 152, 263, 263A, 264, 264D, 265, 266, 267, 267G, 268 Corporations Act 2001 (Cth) ss 180, 181, 184, 429, 438B, 590, 1314 Crimes Act 1914 (Cth) ss 174, 176A Evidence Act 1995 (Cth) s 128 Family Law Act 1975 (Cth) ss 71, 71A, 72, 74, 75, 77, 77A, 79, 79A, 117 |
| Construction, Forestry, Mining and Energy Union (CFMEU) v Australian Building and Construction Commissioner (2018) 351 ALR 168; [2018] FCAFC 4 Cornwell v The Queen (2007) 231 CLR 260; [2007] HCA 12 Ferrall v Blyton; Attorney-General of the Commonwealth (Intervener) (2000) FLC 93-054; [2000] FamCA 1442 Field & Kingston [2018] FamCAFC 145 Song v Ying (2010) 273 ALR 213; [2010] NSWCA 237 Sorby v Commonwealth (1983) 152 CLR 281; [1983] HCA 10 |
| APPLICANT: | Mr Pendergast |
| FIRST RESPONDENT: | Ms Pendergast |
SECOND RESPONDENT: | Company B Pty Ltd |
THIRD RESPONDENT: | Mr C |
| FILE NUMBER: | PAC | 2706 | of | 2018 |
| DATE DELIVERED: | 13 March 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Loughnan J |
| HEARING DATE: | 22 November 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Todd |
| SOLICITOR FOR THE APPLICANT: | Ivy Law Group |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: | U Lawyers |
| COUNSEL FOR THE SECOND AND THIRD RESPONDENTS: | Mr Bagnell |
| SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS: | Yeldham Price O’Brien Lusk Lawyers |
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pendergast & Pendergast and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law…
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- AGLC
- Pendergast & Pendergast [2019] FamCA 136
- Case
- [2019] FamCA 136
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CaseChat Overview and Summary
The primary legal issue before the court was to determine the appropriate division of the parties' property, including their home, superannuation interests, and various financial resources, having regard to the provisions of the *Family Law Act 1975* (Cth). This involved assessing the contributions of each party, both financial and non-financial, to the acquisition, conservation, and improvement of the matrimonial property, as well as considering future needs and other relevant factors.
Loughnan J applied the principles established in *Mallett v Mallett* and *Harris v Harris*, which guide the court in making just and equitable property settlements. The court considered the length of the marriage, the age and health of the parties, their respective incomes and earning capacities, and the responsibilities of each party for the care of any young or dependent children. The court also had regard to the impact of any proposed orders on the financial position of each party.
The court made orders for the division of the matrimonial assets, which included the sale of the former matrimonial home and the division of the net proceeds, as well as the splitting of superannuation entitlements.
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
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Ratio Decidendi
Legal Principle Established
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