K and K - [2003] FMCAfam 214

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & K

[2003] FMCAfam 214

FAMILY LAW – Children – injunction – exclusive occupation of home – wife alleges conduct of husband unbearable.

MAINTENANCE OF SPOUSE – Interim – factors considered – husband pays for all groceries – wife did not work in paid employment throughout the marriage – wife aged 47 years – 23 years cohabitation.

Family Law Act 1975, ss.68B; 72; 75(2)

Davis (1976) FLC 90-062
Page (1981) FLC 91-025
Davis (1983) FLC 91-319

Fedele (1986) FLC 91-744

Applicant:

L J K

Respondent:

J K

File No:

PAM 1571 of 2003

Delivered on:

20 May 2003

Delivered at:

Parramatta

Hearing date:

19 May 2003

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Ms Houghton

Solicitors for the Applicant:

Baker Ryrie Richards Titmarsh

Counsel for the Respondent:

Mr Berry

Solicitors for the Respondent:

McDonnell Milne Toltz

ORDERS

The application by the wife for exclusive occupation of the former matrimonial home is dismissed.
UNTIL FURTHER ORDER the husband is to pay to the wife the sum of $120.00 per week by way of spousal maintenance, the first payment to be made on 30 May 2003.
UNTIL FURTHER ORDER the parties are restrained from further encumbering the former matrimonial home situated at and known as
12 C Street, S S in the State of New South Wales, being the whole of the land in Lot and Deposited Plan.
The proceedings are transferred to the Family Court of Australia at Parramatta.

NOTED:

The value of the matrimonial property is estimated to exceed $700,000 and the Respondent does not consent to jurisdiction.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1571 of 2003

L J K

Applicant

And

J K

Respondent

REASONS FOR JUDGMENT

Application

The application before the Court is an application by the wife for certain property orders. The interim orders said to be sought are an order for exclusive occupation of the former matrimonial home, an order for spousal maintenance, an order for residence of the younger children, an order that the children exercise reasonable contact with the husband and an order restraining both parties from further encumbering the former matrimonial home and from doing any acts or things and increasing the parties indebtedness to any mortgage. The respondent opposes those orders.
It is a situation where the matrimonial property has an estimated value in excess of $700,000 and the respondent does not consent to this Court exercising its jurisdiction in property proceedings and I will be transferring the proceedings to the Family Court.
Quite clearly as there are matters associated with the property proceedings, it would be inappropriate to do anything other than transfer all of the proceedings to the Family Court so that they could be heard in the one venue.
At this stage, however, the applicant wife seeks to move on the interim orders that she seeks in the application and it is the position that this Court can make interim orders on the transfer of the proceedings to…

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 K and K

Details

AGLC: K and K [2003] FMCAfam 214
Case: [2003] FMCAfam 214
Decision Date: 20 May 2003

CaseChat Overview and Summary

The case between K and K involved a dispute concerning the division of assets and occupation of their former matrimonial home. The matter was heard in the Family Court of Australia. The wife applied for exclusive occupation of the former matrimonial home, while the husband opposed this application. Additionally, the wife sought spousal maintenance from the husband. The court was required to determine whether the wife was entitled to exclusive occupation of the former matrimonial home, and if so, whether this should be granted. The court was also required to consider the husband’s opposition to the wife’s application for spousal maintenance.

The court considered the circumstances of the parties and the relevant factors in determining whether the wife was entitled to exclusive occupation of the former matrimonial home. The court found that the husband’s opposition to the wife’s application was well-founded and dismissed the application. The court also considered the wife’s application for spousal maintenance and determined that the husband should pay the wife $120.00 per week until further order. The court further restrained the parties from further encumbering the former matrimonial home and transferred the proceedings to the Family Court of Australia at Parramatta. The court noted that the value of the matrimonial property was estimated to exceed $700,000, and the husband did not consent to jurisdiction.

Orders

Orders of the court

The application by the wife for exclusive occupation of the former matrimonial home is dismissed.

UNTIL FURTHER ORDER the husband is to pay to the wife the sum of $120.00 per week by way of spousal maintenance, the first payment to be made on 30 May 2003.

UNTIL FURTHER ORDER the parties are restrained from further encumbering the former matrimonial home situated at and known as

12 C Street, S S in the State of New South Wales, being the whole of the land in Lot and Deposited Plan.

The proceedings are transferred to the Family Court of Australia at Parramatta.

NOTED:

The value of the matrimonial property is estimated to exceed $700,000 and the Respondent does not consent to jurisdiction.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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