KALE & KARMEL (NO1)

In the Family Court of Australia, Ms Karmel (the Respondent) sought interim orders for the sole use and occupancy of the former matrimonial home and permission to draw down funds from a loan facility secured by that home to cover her anticipated legal costs. Mr Kale (the Applicant) opposed these applications.

The court was required to determine whether the Respondent had discharged the onus of establishing that an order for sole use and occupancy of the former home should be made. Additionally, the court had to consider the Respondent's application to draw down funds from the loan facility, particularly in light of her prior drawdowns for legal costs, the Applicant's own indebtedness for legal costs, and the modest nature of the asset pool and parties' incomes.

Kent J found that the Respondent had not discharged the onus required to justify an order for sole use and occupancy of the former home. Regarding the application to draw down funds, the court noted that the Respondent had already accessed the loan facility for legal costs, while the Applicant had incurred debt for his own legal representation. Given the modest asset pool and incomes, and the fact that the Respondent had already drawn funds, the court determined that the Respondent had not established grounds for further drawdowns.

Consequently, the Application in a Case filed by Ms Karmel on 8 August 2012 was dismissed. Each party's costs of and incidental to this application were reserved to the trial judge, and the Applicant's application for costs concerning an earlier adjournment was also adjourned to the trial.