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…
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- AGLC
- KARLSSON & KARLSSON (No.2) [2020] FCCA 144
- Case
- [2020] FCCA 144
- Decision Date
CaseChat Overview and Summary
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
1.
The Initiating Application filed on 7 June 2018 is dismissed.
2.
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.
3.
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.
4.
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.
5.
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.
6.
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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