Kallen & Alvin & Anor - [2013] FamCA 553

FAMILY COURT OF AUSTRALIA

KALLEN & ALVIN AND ANOR

[2013] FamCA 553

FAMILY LAW – PROPERTY PROCEEDINGS – Just and equitable to make an adjustment of property interests – Contributions – Property each party brought to the marriage – Property acquired during the marriage – Property acquired after separation – Family trust – Where each party’s main source of income is from investments
FAMILY LAW – ADD BACKS – Legal fees – Where the parties agreed to an add back of legal fees – Where the wife contended the husband had obtained a premature distribution of property

Family Law Act 1975 (Cth) s 75(2), s 75(2)(o), s 79, s 79(1), s 79(2), s 79(4)

Bonnici & Bonnici (1992) FLC92-272
Bowe & Bateman [2013] FamCA 253
Omacini & Omacini (2005) FLC 93-218
Stanford & Stanford (2012) 293 ALR 70
Townsend& Townsend (1995) FLC 92-569
Watson & Ling [2013] FamCA 57

APPLICANT:

Ms Kallen

RESPONDENT:

Mr Alvin

INTERVENOR:

B Law Firm

FILE NUMBER:

BRC

11120

2009

DATE DELIVERED:

26 July 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

8, 9 & 10 February 2012

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Cooper

Charles Cooper Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Page of Queen’s Counsel

SOLICITOR FOR THE RESPONDENT:

Michelle Porcheron Lawyers

SOLICITOR FOR THE INTERVENOR:

Mr Brandon

Evans & Company
Family Lawyers

Orders

That by close of business on Wednesday, 14 August 2013 the parties bring in an agreed minute of the terms of orders to be made in accordance with the determinations set out in these reasons for judgment published this day.
The matter be mentioned again before Justice Forrest at 9.30 am on Friday, 16 August 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kallen & Alvin and Anor 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 11120 of 2009

Ms Kallen

Applicant

And

Mr Alvin

Respondent

REASONS FOR JUDGMENT

Ms Kallen and Mr Alvin married in April 2001 after having met in Sydney in late 1998. During their marriage, they acquired interests in property now worth several million dollars. Their marriage has not lasted and they have not been able to agree as to the division of all of that property between them. That is not surprising given that they cannot even agree as to when they began living together or as to when they finally separated. However, those are but a few of the many matters about which these parties disagree.

Unable to agree on the division of their property interests, Ms Kallen (“the wife”) and Mr Alvin (“the husband”) both come to the Court seeking orders pursuant to s 79 of the Family Law Act 1975 altering their interests in property. The husband wants to retain certain property and to be paid a large cash sum by the wife in return for her…

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 Kallen & Alvin & Anor

Details

AGLC: KALLEN & ALVIN AND ANOR [2013] FamCA 553
Case: [2013] FamCA 553
Decision Date: 26 July 2013

CaseChat Overview and Summary

The proceeding concerned an application by Kallen and Alvin, who were the respondents in the matter, seeking to set aside an earlier order made by Forrest J. The applicants, who were not named in the provided text, had obtained an order against Kallen and Alvin. The dispute revolved around whether this earlier order should be upheld or rescinded.

The central legal issue before Forrest J was whether the existing order should be set aside. This required the court to consider the grounds upon which such an order could be vacated, likely involving an assessment of the merits of the original application and any new information or arguments presented by Kallen and Alvin.

Forrest J's reasoning and the legal principles applied are not detailed in the provided text. However, the orders indicate that the court has made determinations regarding the substance of the dispute. The parties are directed to bring in an agreed minute of orders reflecting these determinations by a specified date, and the matter is to be mentioned again for finalisation.

Orders

Orders of the court

That by close of business on Wednesday, 14 August 2013 the parties bring in an agreed minute of the terms of orders to be made in accordance with the determinations set out in these reasons for judgment published this day.

The matter be mentioned again before Justice Forrest at 9.30 am on Friday, 16 August 2013.

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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