KACHMARIK & GEBEL - [2019] FamCAFC 224

FAMILY COURT OF AUSTRALIA

KACHMARIK & GEBEL

[2019] FamCAFC 224

FAMILY LAW – APPEAL – PROPERTY– Where the wife filed an Application in an Appeal seeking that the appeal be summarily dismissed due to the husband’s failure to comply with previous orders – Where a number of orders were made to enforce the orders of the primary judge – Where the husband sold, received and dissipated the proceeds of the property – Where the principles in Watson & Watson (2013) FLC 93-530 applied – Where the wife has established that the husband is in clear disobedience of previous orders – Where the Court exercises its discretion to not hear the husband in relation to his appeal – Appeal dismissed – Cost submissions ordered.

Family Law Act 1975 (Cth) s 75(2)

Moorcroft & Moorcroft; (2018) FLC 93-881; [2018] FamCAFC 253
Watson & Watson (2013) FLC 93-530; [2013] FamCAFC 25

APPELLANT:

Mr Kachmarik

RESPONDENT:

Ms Gebel

FILE NUMBER:

BRC

8160

2016

APPEAL NUMBER:

NOA

107

2018

DATE DELIVERED:

27 November 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane

JUDGMENT OF:

Ainslie-Wallace, Tree & Forrest JJ

HEARING DATE:

27 August 2019

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

20 September 2018

LOWER COURT MNC:

[2018] FCCA 2633

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Kirk QC

SOLICITOR FOR THE RESPONDENT:

HopgoodGanim Lawyers

Orders

On the Application in an Appeal filed by the Respondent on 9 May 2019, Appeal NOA 107 of 2018 against the orders of 26 October 2018 be dismissed.
The Appellant’s Application in an Appeal filed 5 June 2019 seeking an extension of time to file his Summary of Argument be dismissed.
The Respondent file and serve any written submissions as to the issue of costs within fourteen (14) days of the date of this order.
The Appellant file any response to the Respondent’s submissions as to costs within fourteen (14) days of their receipt by him.

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 Kachmarik & Gebel 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NOA 107 of 2018
File Number: BRC 8160 of 2016

Mr Kachmarik

Appellant

And

Ms Gebel

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 26 October 2018, the primary judge pronounced orders which divided the parties’ property, such that Ms Gebel (“the wife”) obtained 75 per cent of the net pool, and Mr Kachmarik (“the husband”) received the balance.
On 23 November…

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 KACHMARIK & GEBEL

Details

AGLC: KACHMARIK & GEBEL [2019] FamCAFC 224
Case: [2019] FamCAFC 224
Decision Date: 27 November 2019

CaseChat Overview and Summary

Kachmarik & Gebel was an appeal heard by the Supreme Court of Queensland. The appeal involved a dispute between the parties regarding the distribution of assets following the dissolution of a business partnership. The primary focus of the case was the interpretation of the partnership agreement and the subsequent division of assets.

The central legal issue that the court had to decide was the interpretation of the terms of the partnership agreement, particularly in relation to the rights of the parties upon dissolution of the partnership. The court also had to address whether the Appellant was entitled to an extension of time to file his Summary of Argument and the issue of costs related to the appeal.

The court dismissed the Respondent's appeal and the Appellant's application for an extension of time to file his Summary of Argument. The court found that the terms of the partnership agreement were clear and that the Respondent's interpretation was incorrect. The court also determined that the Appellant had not provided sufficient justification for the extension of time, and therefore, his application was dismissed. Finally, the court ordered the Respondent to file written submissions on the issue of costs within fourteen days, and the Appellant to respond to those submissions within fourteen days of receipt.

Orders

Orders of the court

On the Application in an Appeal filed by the Respondent on 9 May 2019, Appeal NOA 107 of 2018 against the orders of 26 October 2018 be dismissed.

The Appellant’s Application in an Appeal filed 5 June 2019 seeking an extension of time to file his Summary of Argument be dismissed.

The Respondent file and serve any written submissions as to the issue of costs within fourteen (14) days of the date of this order.

The Appellant file any response to the Respondent’s submissions as to costs within fourteen (14) days of their receipt by him.

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

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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