Penzel and Penzel - [2011] FMCAfam 75

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PENZEL & PENZEL

[2011] FMCAfam 75

FAMILY LAW – Property – long marriage – substantial initial and later contributions – failure to provide evidence of new partner’s financial position.

Family Law Act 1975, s.75(2)

In the Marriage of Aleksovski (1996) 20 Fam LR 894
Bremner& Bremner (1994) 18 Fam LR 407
MVB v SDB(2005) 33 Fam LR 246
Carmel-Fevia v Fevia (2010) 43 Fam LR 405
In the Marriage of Chang & Su (2002) 29 Fam LR 406
Elsey v Elsey (1997) FLC ¶92-727
Ferraro & Ferraro (1993) FLC ¶92-335
Garrett & Garrett (1984) FLC ¶91-539
Gould & Gould (2007) FLC ¶93-333
Grundt v Great Boulder Proprietary Gold Mines Limited (1938) 59 CLR 641
AJO v GRO (2005) 33 Fam LR 134
Oriolo & Oriolo (1985) FLC ¶91-653
In the Marriage of Pierce (1998) 24 Fam LR 377

K.R. Handley, Estoppel by Conduct and Election (Sydney: Sweet & Maxwell/Thomson, 2006)

Applicant:

MR PENZEL

Respondent:

MS PENZEL

File Number:

CAC 795 of 2009

Judgment of:

Neville FM

Hearing date:

13 May 2010

Date of Last Submission:

11 August 2010

Delivered at:

Canberra

Delivered on:

31 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Nash SC

Solicitors for the Applicant:

Watts McCray McGuiness Eley

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Farrar Gesini & Dunn

ORDERS

Within 21 days, the parties are to provide the Court with a certified copy of Orders that reflect the distribution of property 59% in favour of Mr Penzel and 41% in favour of Mrs Penzel.
In the absence of agreement, the orders sought by Mrs Penzel shall apply, subject to them reflecting a payment that will conform to the percentage distribution referred to in Order 1.
In the absence of an Application within 14 days of the date of these Orders, an Order will be made that each party is to pay their own costs of the proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Penzel & Penzel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CANBERRA

CAC 795 of 2009

MR PENZEL

Applicant

And

MS PENZEL

Respondent

REASONS FOR JUDGMENT

Introduction

The scope of the dispute in this property matter is quite narrow. In the light of long-standing Full Court authorities such as Bremner and Pierce,[1] the dispute might be stated as essentially being confined to what weight the Court should give to the substantial contributions that the Husband brought to the relationship in circumstances where there was a long marriage and the financial contributions came courtesy of (a) property and investments of the Husband’s parents and (b) property and investments that were inherited by the Husband.
[1] Bremner& Bremner (1994) 18 Fam LR 407; In the Marriage of Pierce (1998) 24 Fam LR 377.
Added to this general statement of issues are the following considerations: (a) the Husband quite fairly conceded that during the course of the marriage the…

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 Penzel and Penzel

Details

AGLC: Penzel and Penzel [2011] FMCAfam 75
Case: [2011] FMCAfam 75
Decision Date: 31 January 2011

CaseChat Overview and Summary

The matter of Penzel and Penzel involved a dispute between the parties over the division of their property. The case was heard in the Family Court of Australia. The central issue was the equitable distribution of the matrimonial assets in accordance with the principles set out in the Family Law Act 1975. The court was required to determine the specific percentages in which the assets should be divided between the parties.

The court considered the contributions made by each party to the acquisition and maintenance of the assets, as well as the future needs and circumstances of both parties. In reaching its decision, the court applied the principles of fairness and justice, taking into account all relevant factors. The court ultimately determined that the assets should be divided 59% in favour of Mr Penzel and 41% in favour of Mrs Penzel. This decision was based on the specific contributions and needs of each party, as well as other relevant factors.

The court's reasoning was based on a thorough analysis of the evidence presented and the applicable legal principles. The court found that the orders sought by Mrs Penzel reflected the appropriate distribution of the assets, subject to any necessary adjustments to conform to the percentage distribution determined by the court. The court also noted that, in the absence of an application within 14 days of the date of these orders, each party would be responsible for their own costs of the proceedings.

Orders

Orders of the court

Within 21 days, the parties are to provide the Court with a certified copy of Orders that reflect the distribution of property 59% in favour of Mr Penzel and 41% in favour of Mrs Penzel.

In the absence of agreement, the orders sought by Mrs Penzel shall apply, subject to them reflecting a payment that will conform to the percentage distribution referred to in Order 1.

In the absence of an Application within 14 days of the date of these Orders, an Order will be made that each party is to pay their own costs of the proceedings.

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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