Pendergast & Pendergast - [2019] FamCA 136

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

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…

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.

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Details

AGLC: Pendergast & Pendergast [2019] FamCA 136
Case: [2019] FamCA 136
Decision Date: 13 March 2019

CaseChat Overview and Summary

In *Pendergast & Pendergast*, the parties were a husband and wife, and the dispute concerned the division of their matrimonial assets. The matter came before Loughnan J in the Family Court of Australia.

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