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Pompidou & Pompidou

Pompidou & Pompidou

Case [2007] FamCA 879 24 August 2007

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FAMILY COURT OF AUSTRALIA

POMPIDOU & POMPIDOU

[2007] FamCA 879

FAMILY LAW – PROPERTY - Application to set aside final property orders - Ground of duress proven - Threats to kill - Discretion exercised in applicant's favour - Final orders varied
FAMILY LAW - CHILD SUPPORT - Application for departure from administrative assessment

Family Law Act 1975 (Cth), s.79A, s.75(2)
Child Support (Assessment) Act 1989 (Cth), s.116(1B)(a),(b), 117(b), 117(2)(c), s.123, Part VIII, Division 7

Bigg v Suzi (1998) FLC 92-799
Gerbert v Gerbert (1990) FLC 92-137
Clifton v Stuart (1991) FLC 92-194
Suiker v Suiker (1993) FLC 92-436
Kokl & Kokl (1981) FLC 91-078
Pelerman & Pelerman (2000) FLC 93-037
Crescendo Management Pty. Ltd. v. Westpac Banking Corporation (1988) 19 NSW LR 40
Director of Public Prosecutions for Northern Ireland v. Lynch [1975] AC 653
Scribe v Scribe [2006] FLC 93-302
McIntyre v McIntyre (1994) FLC 92-468
L and L (unreported, Full Court of the Family Court of Australia, 27 February, 1996)

Jones v Dunkel (1959) 101 CLR 298
Fabre v Arenales (1992) 27 NSW LR 437
Prpic v Prpic (1995) FLC 92-574
Bendeich v Bendeich (1993) FLC 92-355
Prowse v Prowse (1995) FLC 92-557
Morrison v Morrison (1995) FLC 92-573
Patching v Patching (1995) FLC 92-585

HUSBAND:

Mr Pompidou

WIFE:

Mrs Pompidou

FILE NUMBER:

MLF

2509

2005

DATE DELIVERED:

24 August, 2007

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Brown J.

HEARING DATE:

14, 15 March, 2007

REPRESENTATION:

COUNSEL FOR THE HUSBAND:

Mr Glover

SOLICITOR FOR THE HUSBAND:

Donald S. Lampe

COUNSEL FOR THE WIFE:

Mr De Vries

SOLICITOR FOR THE WIFE:

J.A. Middlemis,

Orders

That the final orders made herein on 7 July, 2004 be varied by deleting paragraph (10) and by inserting in lieu :
“That the husband be solely liable for and indemnify the wife against all payments with respect to the credit card debt of approximately $17,000.”
That save as provided in paragraph (1) hereof, the final orders made on 7 July, 2004 remain in full force and effect.

That there be a departure from administrative assessment of child support in respect of the children of the marriage B born in 1994, P born in 1996 and L born in 1998, payable by the husband to the wife, as follows :

(a)from 1 July, 2005 to 1 April, 2008, the annual rate payable (in total) is $6,500; and
(b)then such rate be adjusted on 1 April, 2008 and 1 April in each year thereafter in accordance with any change in the consumer price index for Melbourne for the preceding calendar year.

(4)That until the youngest of the children of the marriage turns 18 the husband be and is hereby restrained from selling, transferring, further encumbering, assigning or otherwise dealing with his interest in the following real properties (save as provided in paragraph (5) hereof) without first giving two month’s notice in writing to the wife :

(a)The CL property;
(b)the CC1 property; and
(c)the PA property”.

That notwithstanding paragraph (4) hereof, 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 Pompidou & Pompidou

Details

AGLC: Pompidou & Pompidou [2007] FamCA 879
Case: [2007] FamCA 879
Decision Date: 24 August 2007

CaseChat Overview and Summary

In the matter of *Pompidou & Pompidou*, Brown J considered an application to vary final orders previously made on 7 July 2004. The dispute concerned the division of assets and liabilities, child support arrangements, and the management of certain real properties following the dissolution of the marriage. The wife sought variations to the existing orders, and the husband was subject to the proposed changes.

The court was required to determine several legal issues. These included whether to vary the final orders to make the husband solely liable for a significant credit card debt and to indemnify the wife against it. The court also had to consider whether to depart from the administrative assessment of child support payable by the husband to the wife for their three children, and if so, to what extent and for what duration. Furthermore, the court needed to decide on appropriate orders to restrain the husband from dealing with his interest in specific real properties, subject to certain exceptions, and to address the question of costs.

Brown J varied the final orders by making the husband solely liable for and requiring him to indemnify the wife against the credit card debt of approximately $17,000. The court also ordered a departure from the administrative assessment of child support, setting a specific annual rate for a defined period and thereafter adjusting it annually based on the consumer price index for Melbourne. Additionally, the husband was restrained from dealing with his interest in three specified real properties until the youngest child turned 18, with a proviso allowing further encumbration provided the total secured sum did not exceed 85% of the property's value. The court also made orders regarding the filing and service of submissions concerning costs.

Orders

Orders of the court

That the final orders made herein on 7 July, 2004 be varied by deleting paragraph (10) and by inserting in lieu :

“That the husband be solely liable for and indemnify the wife against all payments with respect to the credit card debt of approximately $17,000.”

That save as provided in paragraph (1) hereof, the final orders made on 7 July, 2004 remain in full force and effect.

That there be a departure from administrative assessment of child support in respect of the children of the marriage B born in 1994, P born in 1996 and L born in 1998, payable by the husband to the wife, as follows :

(a) from 1 July, 2005 to 1 April, 2008, the annual rate payable (in total) is $6,500; and

(b) then such rate be adjusted on 1 April, 2008 and 1 April in each year thereafter in accordance with any change in the consumer price index for Melbourne for the preceding calendar year.

(4) That until the youngest of the children of the marriage turns 18 the husband be and is hereby restrained from selling, transferring, further encumbering, assigning or otherwise dealing with his interest in the following real properties (save as provided in paragraph (5) hereof) without first giving two month’s notice in writing to the wife :

(a) The CL property;

(b) the CC1 property; and

That notwithstanding paragraph (4) hereof, the husband may further encumber a property described in that paragraph PROVIDED THAT the total sum secured against any one property does not exceed 85% of its value (as determined by the lender) from time to time.

That any submission in support of an application for costs be filed on or before 14 September, 2007, and

(a) any submission in response be filed on or before 28 September, 2007; and

(b) any submission in reply be filed on or before 12 October, 2007.

That each submission filed pursuant to paragraph (6) have endorsed on the coversheet the date on which it was served on the other party.

That within 48 hours of filing a submission pursuant to paragraph (6) the party filing the submission email a copy of it to the associate to the Honourable Justice Brown on… .

That all extant applications (other than applications for costs) be otherwise dismissed.

10.

That these proceedings be removed from the List of matters awaiting finalisation.

11.

That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

Pompidou & Pompidou [2007] FamCA 879

Most Recent Citation

Hyland and Starke [2008] FMCAfam 1305

Cases Citing This Decision

Hyland and Starke [2008] FMCAfam 1305
Citation 1 (Para 3)

…that it has any rational persuasive effect): see Jones v Sutherland Shire Council [1979] 2 NSWLR 206; (1979) 40 LGRA 323 at 219; Pompidou & Pompidou [2007] FamCA 879 at [27], hence it is important to warn self-represented litigants of their rights to object to evidence being led: MS & PS [2006] FamCA 588; (2006) F…

See all citing cases →

Cases Cited

Morrison v Morrison [2016] NZHC 1575
Citation 1 (Para 1)

…Having found a ground proven, the court must determine whether to exercise its discretion to vary or set aside the final property orders. While the Full Court has referred to circumstances which may justify the exercise of the discretion (see, for example, Prowse v. Prowse (1995) FLC 92-557) the cat…
McIntyre v McIntyre [2005] NSWSC 1216
Citation 2 (Para 1)

…Commenting on that paragraph, Finn J. in McIntyre v. McIntyre (1994) FLC 92-468 at 80,856, made the following observations : I would suggest that what was said by the Full Court in the final paragraph of its decision in Gebert to the effect that the law still permits persons, who have deliberately d…
Fabre v Arenales [1993] HCATrans 24
Citation 3 (Para 1)

…Courts have recognised that there are circumstances in which such an inference should not be available or, if available, be of little significance. In Fabre v. Arenales (1992) 27 NSW LR 437, at 449, Mahoney JA. gave a number of illustrations; the party may not be in a position to call the witness, o…
Jones v Dunkel [1959] HCA 9
Citation 4 (Para 1)

…Each counsel sought to rely on the other party’s failure to call evidence, submitting that the court should draw an adverse inference pursuant to what is often called the rule in Jones v. Dunkel (1959) 101 CLR 298. Counsel for the husband made more of the failure to call expert medical evidence than…
Jones v Dunkel [1959] HCA 8
Citation 5 (Para 1)

…s failure to call evidence, submitting that the court should draw an adverse inference pursuant to what is often called the rule in Jones v. Dunkel (1959) 101 CLR 298. Counsel for the husband made more of the failure to call expert medical evidence than he did of the failure to call Mr. Middlemis; that may have been…
[1975] AC 653 [1975] AC 653
Citation 6 (Para 1)

…sity for pressure amounting to compulsion of the will of the victim was unfortunate. In Director of Public Prosecutions for Northern Ireland v. Lynch [1975] AC 653 (a case concerning duress in the criminal law) the House of Lords rejected the notion that duress is concerned with overbearing the will, Lord Simon…
Crescendo Management Pty Ltd v Westpac Banking Corporation 248 US 67
Citation 7 (Para 1)

…In Crescendo Management Pty. Ltd. v. Westpac Banking Corporation (1988) 19 NSW LR 40 the New South Wales Court of Appeal considered an appeal from a decision that the defendant bank had not applied economic duress in relation to the execution of mortgage documents. While it was not asserted that eco…
[1983] 1 AC 366 [1983] 1 AC 366
Citation 8 (Para 1)

…sure as illegitimate. He referred to the decision of Lord Diplock in Universe Tankships Inc. of Moravia v. International Transport Workers Federation [1983] 1 AC 366 where (at 384) his Lordship pointed out the consequence, which is that “consent is treated in law as revocable unless approbated either expressly or…
Barton v Armstrong (1976) AC 104
Citation 9 (Para 1)

…In Pelerman & Pelerman (2000) FLC 93-037 the Full Court (Ellis, Lindenmayer and Rose JJ.) noted that in the trial which gave rise to the appeal, counsel had not relied on duress as interpreted in Kokl (referred to as “common law duress”) but on the equitable concept as defined in Barton v. Armstrong…

Legislation Cited

Child Support (Assessment) Act 1989 (Cth) 116(1B)(a), 117(2)(c), 117(b)
4 mentions (from Para 1)
Family Law Act 1975 (Cth) 79A
2 mentions (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)