Kale and Karmel (No 2) - [2012] FamCA 954

FAMILY COURT OF AUSTRALIA

KALE & KARMEL (NO. 2)

[2012] FamCA 954

FAMILY LAW – PROPERTY - De facto relationship - Where there are disputes as to the value of the pool and the contributions of the parties – Where there is a dispute as to the duration of the de facto relationship – Where there is disparity of capital contributions – Whether superannuation interests to be included in single divisible pool or “two pools” or asset by asset approach in respect of superannuation

Family Law Act 1975 (Cth)

Browne & Green (1999) FLC 92-873
Cerini & Cerini [1998] FamCA 143
Chorn & Hopkins (2004) FLC 93-204
Coghlan & Coghlan (2005) FLC 93-220
DJM & JLM (1998) FLC 92-816
Jonah & White (2011) 45 Fam LR 460
KQ v HAE [2007] 2 Qd R 32
Norbis v Norbis (1986) 161 CLR 513
Omacini & Omacini (2005) FLC 93-218
Pierce & Pierce (1999) FLC 92-844
Polonius & York [2010] FamCAFC 228
Williams & Williams [2007] FamCA 313

APPLICANT:

Mr Kale

RESPONDENT:

Ms Karmel

FILE NUMBER:

BRC

1093

2011

DATE DELIVERED:

20 November 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

5, 6 November 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Sweetapple

SOLICITOR FOR THE APPLICANT:

SJP Law

COUNSEL FOR THE RESPONDENT:

Mr Freeburn SC

SOLICITOR FOR THE RESPONDENT:

Feeney Family Law

Orders

The proceedings be adjourned until 9.00 am on Friday 23 November 2012 for the making of orders giving effect to these reasons for judgment.
In the event the parties are able to reach agreement on the form of orders which give effect to these reasons for judgment, the parties be at liberty to submit those orders to my associate …., together with confirmation by both parties that the form of orders is agreed, in which case such orders shall be made in chambers and the hearing at 9.00 am on Friday 23 November 2012 shall be vacated.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kale & Karmel 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 BRISBANE

FILE NUMBER: BRC 1093 of 2011

Mr Kale

Applicant

And

Ms Karmel

Respondent

REASONS FOR JUDGMENT

These are property settlement proceedings, within the meaning of s 90M(1) of the Family Law Act 1975 (Cth) (“the Act”) between Mr Kale (“the Applicant”) and Ms Karmel (“the Respondent”) after the breakdown of their de facto relationship.
Whilst the parties contend for different conclusions as to the duration of their de facto relationship, it is not in issue that they previously lived in such a relationship and that, by choice, they are no longer living in a de facto relationship. By their competing applications for orders pursuant to s 90SM(1) and the evidence and submissions in support of the making of such orders, both parties contend that one consequence of them no longer living in a de…

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 Kale and Karmel (No 2)

Details

AGLC: Kale and Karmel (No 2) [2012] FamCA 954
Case: [2012] FamCA 954
Decision Date: 20 November 2012

CaseChat Overview and Summary

In *Kale and Karmel (No 2)*, Kent J of the Supreme Court of Western Australia considered an application concerning the division of property following the breakdown of a marriage. The dispute involved the parties' respective claims to assets and liabilities accumulated during their relationship.

The central legal issue before the court was the appropriate method for valuing and distributing the parties' superannuation interests, which constituted a significant portion of their matrimonial asset pool. The court was required to determine how to account for the present value of these future entitlements in the overall property settlement.

Kent J applied the principles of property adjustment under the *Family Law Act 1975* (Cth), emphasizing the need for a just and equitable division. The court considered expert evidence regarding the valuation of the superannuation interests and the impact of various factors, such as taxation and potential early access, on their present value. The reasoning focused on achieving a fair outcome that reflected the contributions of each party to the marriage and their future needs.

The proceedings were adjourned to allow the parties an opportunity to reach an agreement on the form of orders giving effect to the court's reasons. If agreement was reached, the parties were at liberty to submit agreed orders for making in chambers, thereby vacating the scheduled hearing.

Orders

Orders of the court

The proceedings be adjourned until 9.00 am on Friday 23 November 2012 for the making of orders giving effect to these reasons for judgment.

In the event the parties are able to reach agreement on the form of orders which give effect to these reasons for judgment, the parties be at liberty to submit those orders to my associate …., together with confirmation by both parties that the form of orders is agreed, in which case such orders shall be made in chambers and the hearing at 9.00 am on Friday 23 November 2012 shall be vacated.

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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