Spirallis & Pavlakos - [2022] FedCFamC2F 75

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Spirallis & Pavlakos [2022] FedCFamC2F 75

File number(s): DGC 1820 of 2021

Judgment of: JUDGE BURCHARDT

Date of judgment: 28 January 2022

Catchwords:
FAMILY LAW – Preliminary ruling on husband’s application to re-open following reservation of judgment- Parenting and property dispute- parenting matters, including time as per the child’s wishes, agreed save for the partner’s application for family therapy – child aged 14 and mature for her years – any compulsion likely to be counter-productive – therapy not ordered.

PROPERTY – Most matters not the subject of disagreement- whether wife’s properties in Greece should be included in the pool – properties gifted to the wife in 1998 when relationship with husband only started in 2005 – court finding properties to be held on trust for daughter and not constituting a resource to the wife – properties excluded from the pool – wife owning unencumbered home at start of relationship – husband having no assets of any moment – husband contributing $350,000 following settlement of injury application – contributions assessed 75/25 in wife’s favour – wife’s lower income and care/ costs of the child assessed as requiring future 2.5 % adjustment in respect of future needs.

Legislation: Family Law Act 1975 (Cth)
Federal Court Rules 2011 (Cth)

Cases cited: AFT Pharmaceuticals (AU) Pty Ltd v Reckitt Benckiser (Australia) Pty Ltd (No 2) [2020] FCA 1092
Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22
Mallet v Mallet [1984] HCA 21
Re AMIEU [1986] 67 ALR 491
Reid v Brett [2005] VSC 18
Smith v New South Wales Bar Association [1992] 176 CLR 256
Standford & Standford [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 53

Date of last submission/s: 28 January 2022

Date of hearing: 24, 25, 27, 28 January 2022

Place: Dandenong

Counsel for the Applicant: Mr Moisidis

Solicitor for the Applicant: Waters Lawyers

Counsel for the Respondent: Mr Staindl

Solicitor for the Respondent: Clancy And Triado
ORDERS

DGC 1820 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SPIRALLIS

Applicant

AND:
MR PAVLAKOS

Respondent

ORDER MADE BY:

JUDGE BURCHARDT

DATE OF ORDER:

28 JANUARY 2022

THE COURT ORDERS THAT:
1.The matter be adjourned to this Court for mention before Judge Burchardt on 4 February 2022 at 9.30 am.

THE COURT NOTES THAT
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any…

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 Spirallis & Pavlakos

Details

AGLC: Spirallis & Pavlakos [2022] FedCFamC2F 75
Case: [2022] FedCFamC2F 75
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia was presented with a parenting and property dispute between Ms Spirallis and Mr Pavlakos. The primary issue was whether the husband's application to re-open the case following the reservation of judgment should be allowed. The court also had to determine the appropriate parenting arrangements for the child and the division of property between the parties. The husband sought to introduce new evidence, which he claimed was a separate benefit he received and applied to the benefit of the family. However, the court found that the evidence was not material enough to affect the outcome of the case, could have been discovered earlier, and would cause significant prejudice to the wife. The court refused the husband's application to reopen the case.

In terms of parenting, the court found that the child, X, was mature enough to make her own decisions regarding spending time with her father. The court did not order family therapy, as it believed that any attempt to coerce X would be counterproductive. Regarding property division, the court found that the wife's properties in Greece should not be included in the pool, as they were held on trust for the daughter and not a future resource for the wife. The court assessed the contributions of both parties and found that the wife's contributions were slightly greater. The court ordered a 2.5% adjustment in favor of the wife due to her lower income and the additional expenses of the child.

The court ordered that the matter be adjourned for mention before Judge Burchardt on 4 February 2022 at 9:30 am. The court also noted that if there were allegations of family violence, unrepresented parties would not be permitted to personally cross-examine the other party/parties. The court emphasized the importance of the finality of litigation and exercised its discretion to refuse the husband's application to reopen the case.

Orders