Allenby and Kimble - [2014] FamCA 110

FAMILY COURT OF AUSTRALIA

ALLENBY & KIMBLE

[2014] FamCA 110

FAMILY LAW – PROPERTY SETTLEMENT – De Facto Relationship – Where the de facto husband made the greater financial contribution – Non-financial contribution – Where the de facto wife made the greater non-financial contribution – Whether pre-co-habitation non-financial contributions to the preservation of property should be taken into account.
FAMILY LAW – PRACTICE AND PROCEDURE – Issue Estoppel – Whether an interlocutory finding had been made in relation to the de facto wife’s inheritance.

Family Law Act 1975 (Cth) ss 4AA(2), 90SF(3), 90SM

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334
Bevan & Bevan [2013] FamCAFC 116
Blair & Ors v Curran & Ors (1939) 62 CLR 464
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Allenby

RESPONDENT:

Mr Kimble

FILE NUMBER:

BRC

1989

2011

DATE DELIVERED:

7 March 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

11 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Burridge of Counsel

SOLICITOR FOR THE APPLICANT:

Swanston & Associates

COUNSEL FOR THE RESPONDENT:

Mr Galloway of Counsel

SOLICITOR FOR THE RESPONDENT:

Cartledge Law

Orders

That by way of property adjustment pursuant to s 90SM of the Family Law Act 1975 the Respondent pay the Applicant the sum of one hundred thousand dollars ($100,000) within two (2) calendar months of the date of these Orders.
That each of the Applicant and the Respondent otherwise retain as his and her own property absolutely all interests that each has in property and each shall also retain as his and her own any interest each has in any superannuation fund.
That each of the Applicant and the Respondent indemnifies the other and shall keep the other indemnified against any and all liability for debts in his or her own name.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Allenby & Kimble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: BRC 1989 of 2011

Ms Allenby

Applicant

And

Mr Kimble

Respondent

REASONS FOR JUDGMENT

On 2 August 2012, Murphy J of this Court declared that:
(a)A de facto relationship existed between the parties in this case, Ms Allenby and Mr Kimble; and
(b)The de facto relationship lasted for at least two years; and
(c)The de facto relationship ended after 1 March 2009.
On 11 April, 2013, I presided over a one day trial of Ms Allenby’s application pursuant to s 90SM of the Family Law Act 1975 (Cth) (“FLA”) for property adjustment orders as between her and Mr Kimble.
That section of the Act empowers the Court, after the breakdown of a de facto relationship, to make such order as it considers appropriate in proceedings with respect to the property of the parties to the de facto relationship or either of them, altering the interests of the parties to the relationship in 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 Allenby and Kimble

Details

AGLC: Allenby and Kimble [2014] FamCA 110
Case: [2014] FamCA 110
Decision Date

CaseChat Overview and Summary

In *Allenby & Kimble* [2014] FamCA 110, the Family Court of Australia considered an application by Ms Allenby for property adjustment orders against Mr Kimble following the breakdown of their de facto relationship. The dispute centred on the division of property accumulated during their approximately ten-year relationship, with particular focus on the parties' respective financial and non-financial contributions.

The court was required to determine whether it was just and equitable to make property adjustment orders, and if so, what those orders should be. This involved identifying and valuing the parties' existing legal and equitable interests in their property, liabilities, and superannuation. The court also had to assess the contributions made by each party to the relationship, both financially and non-financially, and consider other relevant matters under section 90SM(4) of the *Family Law Act 1975* (Cth), including the impact of any orders on the parties' future earning capacities and any matters relevant under section 90SF(3).

Applying the principles from *Stanford & Stanford* (2012) 247 CLR 108, the court found that it was just and equitable to make property adjustment orders given the voluntary breakdown of the de facto relationship. The court adopted a four-step approach to determine the appropriate orders, which involved identifying and valuing the parties' assets and liabilities, assessing contributions, considering other relevant matters, and finally, determining the just and equitable outcome. The court noted that while Mr Kimble made greater financial contributions, Ms Allenby made greater non-financial contributions, including significant care during her illness. The court also addressed issues regarding the valuation of certain assets and the notional add-back of superannuation funds used for legal costs.

Ultimately, the court ordered Mr Kimble to pay Ms Allenby the sum of $100,000 within two months, with each party to retain their remaining property interests and be responsible for their own debts.

Orders