DUBOIS & KUSUMO - [2019] FamCA 567

FAMILY COURT OF AUSTRALIA

DUBOIS & KUSUMO

[2019] FamCA 567

FAMILY LAW – PROPERTY – Interim Property Settlement Application – refundable accommodation deposit – application to transfer $550 000 from funds held in trust from sale of respondent’s former matrimonial home – applicant in the proceeding contending that no more than $275 000 should be transferred – actuarial evidence given as to economic consequences of both sums being transferred – $275 000 ordered.

FAMILY LAW – SPOUSAL MAINTENANCE – claim by respondent – de facto wife in parlous financial circumstances – application refused.

FAMILY LAW – PROPERTY – Interim Property Settlement Application – by de facto wife for $50 000 from funds held in trust – de facto wife in parlous financial circumstances – she has significant needs – capacity of the respondent to provide – relevant additional considerations taken into account – order made.

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 80

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Finazzi & Finazzi [2012] FamCA 102
Gabel & Yardley (2008) 40 Fam LR 66
Hall v Hall (2016) 257 CLR 490
In the Marriage of Redman and Redman (1987) 11 Fam LR 411
In the Marriage of Stein (2000) 25 Fam LR 727
Makita (Australia) Pty Ltdv Sprowles (2001) 52 NSWLR 705
Strahan & Strahan (2009) 42 Fam LR 203
Zschokke & Zschokke (1996) 20 Fam LR 766

APPLICANT:

Ms Dubois

RESPONDENT:

Mr Kusumo

FILE NUMBER:

MLC

8329

2017

DATE DELIVERED:

21 August 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

14 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr L Wraith

SOLICITOR FOR THE APPLICANT:

Peter Szabo Family Law

COUNSEL FOR THE RESPONDENT:

Mr J Stanley

SOLICITOR FOR THE RESPONDENT:

Waterson Legal

Order

On or before 4pm 22 August 2019 parties are to bring in a minute that gives effect to these reasons.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8329 of 2017

Ms Dubois

Applicant

And

Mr Kusumo

Respondent

REASONS FOR JUDGMENT

Introduction

On 14 August 2019, while sitting in the Judicial Duty List, I heard an application by the respondent to this proceeding (he being the de facto husband) for the release of $550 000 from the money held in trust following the sale of the respondent’s former matrimonial home to be applied as a bond for the respondent’s residential care at a…

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 DUBOIS & KUSUMO

Details

AGLC: DUBOIS & KUSUMO [2019] FamCA 567
Case: [2019] FamCA 567
Decision Date: 21 August 2019

CaseChat Overview and Summary

The proceeding concerned an interim property settlement application brought by the applicant, Ms. Dubois, against the respondent, Mr. Kusumo. The dispute centred on the division of funds held in trust from the sale of the former matrimonial home, with Ms. Dubois seeking the transfer of $550,000, while Mr. Kusumo contended that no more than $275,000 should be transferred. Actuarial evidence was presented to the court regarding the economic consequences of both proposed sums being transferred.

The court was required to determine the appropriate interim property settlement, considering the financial circumstances of both parties. Specifically, the court had to assess the needs of Ms. Dubois, the capacity of Mr. Kusumo to provide, and any relevant additional considerations in making its determination. The court also considered a claim for spousal maintenance by Mr. Kusumo, who was described as being in parlous financial circumstances.

In its reasoning, the court applied principles of family law concerning interim property settlements and spousal maintenance. The court acknowledged Ms. Dubois' significant needs and the capacity of Mr. Kusumo to meet them. After considering the actuarial evidence and all relevant factors, the court ordered the transfer of $275,000 from the trust funds to Ms. Dubois. The application for spousal maintenance by Mr. Kusumo was refused.

Orders