Petrellis & Petrellis - [2022] FedCFamC2F 1375

Federal Circuit and Family Court of Australia
(DIVISION 2)
Petrellis & Petrellis [2022] FedCFamC2F 1375

File number(s): SYC 4713 of 2021

Judgment of: JUDGE JENKINS

Date of judgment: 28 October 2022

Catchwords: FAMILY LAW – PROPERTY – final hearing – adjustment of property interests – spousal maintenance – child support departure – non-periodic child support – substantial gifts during the marriage – significant earning capacity differential – sale of real property – treatment of leave entitlements

Legislation:
Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 124, 125, Div 4 Pt 7, Div 5 Pt 7

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 106A, 121, Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13 and 10.14(b)

Cases cited:
Aleksovski & Aleksovski [1996] FamCA 111

Best & Best (1993) FLC 92-418

Bevan & Bevan [1993] FamCA 95

Clausen & Clausen (1995) FLR 9

D & D [2003] FamCA 473

Dickons & Dickons [2012] FamCAFC 154

Gould & Gould (1995) FamCA 142

Hallinan & Witynski[1999] FamCA 1127

Harrison & Harrison (1996) FamCA 12

Hickey & Hickey & Attorney General for the Commonwealth of Australia (2003) FLC 93‑143

Hides & Hatton (1997) FLC 92-95

In the Marriage of Gyselman [1991] FamCA 93

In the Marriage of Omacini (2005) 33 Fam LR 134

In the Marriage of WILSON, D.J. and WILSON, L.L. (1989) FLC

Jabour & Jabour [2019] FamCAFC 78

Lee Steere & Lee Steere (1985) FLC 91-626

Mallet v Mallet (1984) 156 CLR 605

Pierce & Pierce (1998) 24 FamLR 377

MS & PS (2006) FLC 93-268

Stanford v Stanford [2012] HCA 52

Thomson Australian Holdings Pty Ltd v The Trade Practices Commission (1980) 148 CLR 150

Division: Division 2 Family Law

Number of paragraphs: 180

Date of last submission/s: 26 July 2022

Date of hearing: 25-26 July 2022

Place: Sydney

Counsel for the Applicant: Mr Kearney SC

Solicitor for the Applicant: Blanchfield Nicholls

Counsel for the Respondent: Mr Richardson SC

Solicitor for the Respondent: Barkus Doolan Winning
ORDERS

SYC 4713 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PETRELLIS

Applicant

AND:
MS PETRELLIS

Respondent

order made by:

JUDGE JENKINS

DATE OF ORDER:

28 October 2022

UPON NOTING:
A.The following definitions for the purposes of these orders:
A.1 "B Street, Suburb C mortgage" means mortgage registration number … registered on title to the B Street, Suburb C property securing loans from National Australia Bank, being account number …08 and account number …31.
A.2"B Street, Suburb C property" means the property situated at and known as B Street, Suburb C in the State of New South Wales, being the whole of the land described in Folio Identifier … registered in the names of the husband and the wife as joint tenants.
A.3"Petrellis" means the company known as Petrellis Pty Ltd, ACN … in respect of which the husband and the wife are directors and each hold 1 of the 2 ordinary shares.
A.4"Petrellis" means…

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 Petrellis & Petrellis

Details

AGLC: Petrellis & Petrellis [2022] FedCFamC2F 1375
Case: [2022] FedCFamC2F 1375
Decision Date

CaseChat Overview and Summary

In the matter of Petrellis & Petrellis, the Federal Circuit and Family Court of Australia (Division 2) was tasked with adjusting the property interests of the parties and making orders for spousal and child support. The husband, Mr Petrellis, and the wife, Ms Petrellis, had been married and separated in 2020, leaving behind two children. The Court's decision focused on the division of property, spousal maintenance, child support departure, and non-periodic child support.

The Court determined that it was just and equitable to adjust the parties' property interests, taking into consideration the contributions of both parties during the relationship, as well as the initial contributions and post-separation contributions. The Court found that the wife should receive a 62.5 per cent adjustment of the non-superannuation pool and 36.2 per cent of the superannuation pool, resulting in a total of 60.7 per cent of the total pool.

Regarding spousal maintenance, the Court found that the husband should continue to make payments as per the interim orders, but did not find it necessary to order additional weekly payments for the wife. The Court considered the wife's reasonable needs and the capacity of the husband to meet those needs, as well as the factors outlined in s 75(2) of the Family Law Act 1975 (Cth).

The wife sought a departure from the child support assessment, which the Court granted, taking into account the husband's significant income and the wife's lack of earning capacity. The Court found that the administrative assessment would result in an unjust and inequitable determination of the level of financial support for the children. The Court ordered that the husband and wife share equally in the children's weekly expenses of $2,200.

Finally, the Court made an order for non-periodic child support, as the husband had agreed to meet the children's educational, extracurricular, and health costs. The Court excluded discretionary costs such as streaming services, which the wife would have the capacity to pay.

Orders