By and -

Key decisions

  • Petrellis [2023] FedCFamC1A 104
  • Abbey & Cyris [2023] FedCFamC1A 103
  • Genesalio [2023] FedCFamC1A 109
  • Spalla [2023] FedCFamC1A 87

PROPERTY

Court failed to explain or provide procedural fairness as to two pool approach, when it divided non-superannuation pool 65:35 without any adjustment to super pool

In Petrellis [2023] FedCFamC1A 104 (30 June 2023), McClelland DCJ allowed a wife’s appeal against a decision of Judge Jenkins in respect of an 18 year marriage that produced two children.

Judge Jenkins adopted a two pool approach. The non-superannuation pool was $14,060,433 and the superannuation pool was $1,023,785. The Court assessed contributions in respect of the non-superannuation pool as 57.5 per cent in favour of the wife and made a five per cent adjustment for s 75(2).

Superannuation was not adjusted. The husband retained $653,600 and the wife received $370,185.

McClelland DCJ said (from [30]):

‘… [T]he … judge adopted … a “two pool” approach … [and] treated the parties’ superannuation interests as separate from … non-superannuation …

[38] … The difference … between … adjusting the parties’ property on the basis of a global pool, as opposed to a two pool approach, would have been … $269,681 …

[39] … [P]rocedural fairness required the … judge to notify the parties of her intended approach …

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