KARLSSON & KARLSSON (No.2) - [2020] FCCA 144

FEDERAL CIRCUIT COURT OF AUSTRALIA

KARLSSON & KARLSSON (No.2)

[2020] FCCA 144

Catchwords:
FAMILY LAW – Application for summary dismissal of application to set aside or vary final property orders.

Legislation:

Family Law Act 1975 (Cth), ss.45A, 79A, 81, 106A

Cases cited:

Green & Kwiatek (1982) FLC 91

Holland & Holland (1982) FLC 91-243

Kennedy & Thorne (2016) FLC 93

Lane & Lane (2016) FLC 93-699

Prowse & Prowse (1995) FLC 92

Stativa & Stativa [2015] FamCAFC 170

Applicant:

MR KARLSSON

Respondent:

MS KARLSSON

File Number:

SYC 8036 of 2017

Judgment of:

Judge M Neville

Hearing date:

24 October 2019

Date of Last Submission:

24 October 2019

Delivered at:

Sydney

Delivered on:

29 January 2020

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Levy

Solicitors for the Respondent:

Barkus Doolan

Solicitors for the Independent Children's Lawyer:

Ms Blackman of Legal Aid NSW

THE COURT ORDERS THAT:

The Initiating Application filed on 7 June 2018 is dismissed.
By way of implementation of, and to put into effect, the Orders of 4 September 2017, within seven (7) days of the date of these Orders, each party shall do all acts and things, provide all written instructions and consents and provide all necessary directions and authorities to cause For C Lawyers to forthwith pay to the Respondent Wife from funds held on behalf of the parties in the C Lawyers trust account, the sum of $37,644.16 representing the estimated capital gains tax liability of the Respondent Wife arising as a consequence of the sale of the property at D Street, Property A, New South Wales.
Pending determination of the Respondent’s application for costs, the Applicant is restrained from providing any instructions, directions or authorities to C Lawyers to deal with and/or pay any monies held on trust for the parties, or either of them, by C Lawyers other than in compliance with order 2 herein or by further order of this Court.
The director(s) and/or partner(s) of C Lawyers are requested and authorised to disburse to the Respondent pursuant to Order 2 herein from funds held in trust on behalf of the Applicant and the Respondent, and the Respondent has leave to provide a copy of these orders to C Lawyers.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to any or all of these orders, then a Registrar of the Federal Circuit Court is appointed pursuant to section 106A of the Family Law Act1975 (Cth) to execute all such documents, deeds and instruments in the name of the refusing and/or neglecting party.
The Respondent’s application for indemnity costs is adjourned to a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Karlsson & Karlsson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8036 of 2017

MR KARLSSON

Applicant

And

MS KARLSSON

Respondent

REASONS FOR JUDGMENT

Mr Karlsson (the…

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 KARLSSON & KARLSSON (No.2)

Details

AGLC: KARLSSON & KARLSSON (No.2) [2020] FCCA 144
Case: [2020] FCCA 144
Decision Date: 29 January 2020

CaseChat Overview and Summary

In *Karlsson & Karlsson (No.2)*, Judge M Neville of the Federal Circuit Court of Australia considered an application by the Applicant husband to summarily dismiss the Respondent wife's application to set aside or vary final property orders. The dispute arose from the wife's attempt to challenge existing property settlement orders.

The court was required to determine whether the wife's application to set aside or vary the final property orders should be summarily dismissed. This involved assessing the merits of her application and whether it had any reasonable prospect of success.

Judge Neville dismissed the Applicant's application for summary dismissal. The court reasoned that the wife's application had not been properly considered on its merits and that summary dismissal would be premature. The court then made orders to implement the original property settlement, specifically directing the payment of $37,644.16 from trust funds held by C Lawyers to the Respondent wife to cover her estimated capital gains tax liability arising from the sale of a property. Further orders were made to restrain the Applicant from dealing with trust funds held by C Lawyers pending the determination of costs, and to authorise C Lawyers to disburse the specified sum. The court also appointed a Registrar to execute any necessary documents if a party failed to do so, and adjourned the Respondent's application for indemnity costs.

Orders

Orders of the court

The Initiating Application filed on 7 June 2018 is dismissed.

By way of implementation of, and to put into effect, the Orders of 4 September 2017, within seven (7) days of the date of these Orders, each party shall do all acts and things, provide all written instructions and consents and provide all necessary directions and authorities to cause For C Lawyers to forthwith pay to the Respondent Wife from funds held on behalf of the parties in the C Lawyers trust account, the sum of $37,644.16 representing the estimated capital gains tax liability of the Respondent Wife arising as a consequence of the sale of the property at D Street, Property A, New South Wales.

Pending determination of the Respondent’s application for costs, the Applicant is restrained from providing any instructions, directions or authorities to C Lawyers to deal with and/or pay any monies held on trust for the parties, or either of them, by C Lawyers other than in compliance with order 2 herein or by further order of this Court.

The director(s) and/or partner(s) of C Lawyers are requested and authorised to disburse to the Respondent pursuant to Order 2 herein from funds held in trust on behalf of the Applicant and the Respondent, and the Respondent has leave to provide a copy of these orders to C Lawyers.

In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to any or all of these orders, then a Registrar of the Federal Circuit Court is appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute all such documents, deeds and instruments in the name of the refusing and/or neglecting party.

The Respondent’s application for indemnity costs is adjourned to a date to be fixed.

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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