Kane and Kane - [2009] FMCAfam 1236

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KANE & KANE

[2009] FMCAfam 1236

FAMILY LAW – Property Law – marriage of 18 years – large asset pool – substantial property and share portfolio held in wife’s name – husband’s continuing earning capacity – wife long-term sufferer of degenerative condition – section 75(2) assessment of contribution factors.

Family Law Act 1975, s.75(2) (a), (b)

Brodie v Brodie (2009) 41 Fam LR 18
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003)FLC ¶93-143
AJO v GRO (2005) 33 Fam LR 134
Zyk & Zyk (1995) FLC 92-644

Applicant:

MS KANE

Respondent:

MR KANE

File Number:

CAC 741 of 2008

Judgment of:

Neville FM

Hearing dates:

23 & 24 July 2009

Date of Last Submission:

24 July 2009

Delivered at:

Canberra

Delivered on:

8 December 2009

REPRESENTATION

Counsel for the Applicant:

Mr Jackson

Solicitors for the Applicant:

Andrew Warren & Associates

Counsel for the Respondent:

Mr Lethbridge SC

Mr Arthur of Counsel

Solicitors for the Respondent:

Baker, Deane & Nutt

ORDERS

That the Wife transfer to the Husband her right, title and interest, if any, in the following:
(a)Units 1, 2 and 3, Property M.
(b)Her shareholding in [R] Pty Ltd.
(c)Shares held in the share portfolios referred to as “Ms & Mr Kane Issuer Sponsored Holdings Portfolio” and the “Mr and Ms Kane Commsec Account number [1]”
That the join bank account conducted by the parties with the National Australia Bank at [U], account number [2] be divided as to the Husband the sum of $23,387 and the balance to the Wife.
That in addition to Orders 1 and 2 above, within 90 days the Wife pay to the Husband such cash sum that constitutes the difference between what is provided to the Husband under those orders and his entitlement to 36 per cent of the net property pool.
That the Husband transfer to the Wife his right, title and interest, if any, in the following:
(a)Property F
(b)Units 1 and 6 of Property P
(c)Property B, Melbourne
(d)Property S
That except as otherwise provided, the Husband and Wife each entitled to be the sole legal and beneficial owners of all items of property, including money, motor vehicles, insurance, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no such application, each party is 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 Kane and Kane

Details

AGLC: Kane and Kane [2009] FMCAfam 1236
Case: [2009] FMCAfam 1236
Decision Date: 8 December 2009

CaseChat Overview and Summary

The case of Kane and Kane involved a dispute between the parties over the division of their assets following their separation. The matter was heard by the Family Court of Australia, which was tasked with determining the fair distribution of the couple’s property under the Family Law Act 1975. The central issues before the court were the classification and valuation of various assets, including real estate, shares, and personal effects, as well as the determination of the net property pool and the respective entitlements of each party. The court had to assess the contributions of both parties to the acquisition and preservation of their assets, as well as consider the future needs and circumstances of each party.

The Family Court meticulously reviewed each asset to ascertain its inclusion in the net property pool. It was determined that certain properties and financial holdings were to be transferred to one party, while others were to remain with the other. The court also calculated the Husband's entitlement to 36% of the net property pool, which led to an additional monetary payment from the Wife to the Husband. The division of the joint bank account was handled by specifying exact amounts to be allocated to each party. The court ensured that each party retained sole ownership of the items in their possession or control, unless otherwise specified. The orders also provided for the appointment of a registrar to execute necessary documents if either party failed to comply with the court's directions regarding the asset transfer.

In its final orders, the court mandated specific transfers of real estate and financial assets between the parties, allocated a precise sum from their joint bank account, and required the Wife to pay the Husband any remaining amount owed based on the net property pool calculation. The court also ensured that each party would remain the sole owner of their personal possessions. If either party failed to comply with the orders, the Registrar was appointed to enforce the court's decisions. The court granted liberty to the parties to apply for costs within 21 days of the decision, with each party bearing their own costs if no such application was made.

Orders

Orders of the court

That the Wife transfer to the Husband her right, title and interest, if any, in the following:

(a) Units 1, 2 and 3, Property M.

(b) Her shareholding in [R] Pty Ltd.

(c) Shares held in the share portfolios referred to as “Ms & Mr Kane Issuer Sponsored Holdings Portfolio” and the “Mr and Ms Kane Commsec Account number [1]”

That the join bank account conducted by the parties with the National Australia Bank at [U], account number [2] be divided as to the Husband the sum of $23,387 and the balance to the Wife.

That in addition to Orders 1 and 2 above, within 90 days the Wife pay to the Husband such cash sum that constitutes the difference between what is provided to the Husband under those orders and his entitlement to 36 per cent of the net property pool.

That the Husband transfer to the Wife his right, title and interest, if any, in the following:

(a) Property F

(b) Units 1 and 6 of Property P

(d) Property S

That except as otherwise provided, the Husband and Wife each entitled to be the sole legal and beneficial owners of all items of property, including money, motor vehicles, insurance, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.

That if either party refuses, fails or neglects to execute any document necessary to put these Orders into effect 7 days after being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Family Court at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.

That liberty is granted to the parties to relist the matter within 21 days in relation to costs. In the event that there is no such application, each party is to pay their own costs.

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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