Kaplan & Hankel

In the case of Kaplan & Hankel, the Federal Circuit and Family Court of Australia (Division 1) addressed a complex financial dispute between the parties, focusing on the ownership and division of assets accumulated during their de facto relationship. The central issue was the ownership of shares in a company controlled by the wife and whether these shares were held on trust for her parents. The court found that there was no legally enforceable obligation to repay the second respondent, Ms Briley, and that the wife was the legal and beneficial owner of the shares throughout the relationship. The court also determined that the wife transferred the shares to Ms Briley to reduce the pool of assets available for division between her and the husband.

The legal issues involved interpreting the nature of the wife’s ownership of the company shares, the existence of any trust arrangement with her parents, and the implications of these findings on the division of matrimonial assets. The court examined the evidence presented by both parties, including affidavits, documents, and witness testimonies, to assess the credibility and consistency of the claims. The court concluded that the wife's transfer of shares to Ms Briley was an attempt to diminish the matrimonial pool, and thus, the shares were to be notionally added back for division.

The court found that the husband had perpetrated family violence, which made the wife’s contributions to the relationship more arduous, warranting an adjustment in her favour. The court also considered the contributions of both parties, finding that the wife’s contributions favoured her by 65 percent. Ultimately, the court ordered a 70/30 percentage division of the parties’ property in favour of the wife. The court further determined that there was no need for additional adjustments based on future care of the children or other factors.

The final orders included the wife paying the husband a specified sum within three months, discharging certain mortgages, and transferring property interests. In the event of non-compliance, the court mandated a sale of specified properties through successive auctions. Both parties were restrained from further encumbering the properties without consent. The form of the order was subject to entry in the court's records, and any application for costs was to be made within 28 days of the order.