Karr and Karr - [2010] FMCAfam 53

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KARR & KARR

[2010] FMCAfam 53

FAMILY LAW – Property – marriage of thirteen years in duration – calculation of asset pool – whether appropriate to use valuation certificates of jewellery to ascribe a value to items of jewellery purchased for the wife – appropriate date to calculate amount due on mortgage in circumstances where husband has unilaterally extended mortgage in period following separation – add backs – reasonable living expenses – duty to make full and frank disclosure – assessment of contributions – assessment of section 75(2) factors – just and equitable.

Family Law Act 1975, ss.75(2); 79(4);
Federal Magistrates Court Rules: Order 24.03

Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335
Clauson v Clauson (1995) FLC 92-595
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
Waters & Jurek (1995) FLC 92-635
D & D [2003] FamCA 473
Briese & Briese (1986) FLC 91-713
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Luciano & Luciano [2000] FamCA 401
Re NHC & RCH (2004) FLC 93-204
Jones & Jones [2003] FamCA 617
AJO v GRO (2005) 33 Fam LR 134
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Browne & Green (1999) 25 Fam LR 482
Hickey v Hickey and Attorney General for Commonwealth of Australia (2003) FLC 93-143

Applicant:

MR KARR

Respondent:

MS KARR

File Number:

ADC 2602 of 2008

Judgment of:

Brown FM

Hearing dates:

4 August & 17 December 2009

Date of Last Submission:

17 December 2009

Delivered at:

Adelaide

Delivered on:

29 January 2010

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitors for the Applicant:

All Family Law

Counsel for the Respondent:

Ms Lewis

Solicitors for the Respondent:

Tindall Gask Bentley

ORDERS

In full and final settlement of all claims for settlement of matrimonial property between the parties:

The proceeds of sale of the parties’ former matrimonial home situated at Property W in the State of South Australia be distributed as follows:
(a)The sum of $316,300.00 to the wife;
(b)The balance to the husband.
The wife pay all capital gains tax incurred in her name in respect of the shares owned by her during the marriage.
Pursuant to section 90MT(1)(a) of the Family Law Act there be a splitting order in respect of the husband’s [M] super fund and pursuant to section 90MT(4) of the Act a base amount in the sum of $55,250.00 be allocated to the wife out of the husband’s interest in such fund.
The solicitor for the wife serve a copy of these orders on the trustee of the [M] super fund by 10 February 2010 and thereafter the aforesaid trustee has liberty to relist the matter before the court in the event that the trustee is unable 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 Karr and Karr

Details

AGLC: Karr and Karr [2010] FMCAfam 53
Case: [2010] FMCAfam 53
Decision Date: 29 January 2010

CaseChat Overview and Summary

In the matter of Karr and Karr, the court was tasked with the resolution of a matrimonial property settlement dispute. The wife, having initiated proceedings, sought a fair distribution of assets accumulated during the marriage, including the proceeds from the sale of their former matrimonial home, superannuation entitlements, and personal assets. The husband, in turn, contested certain claims, particularly those relating to the allocation of the proceeds from the sale of the matrimonial home and the distribution of superannuation benefits.

The primary legal issues before the court were the equitable division of the matrimonial property, the calculation and distribution of the superannuation entitlements, and the imposition of a splitting order pursuant to the Family Law Act. Additionally, the court had to consider the wife’s entitlement to reimbursement of capital gains tax paid on shares owned during the marriage and the allocation of personal assets such as clothing, jewellery, and motor vehicles.

The court meticulously evaluated the contributions made by each party to the acquisition of the assets, their respective needs, and the principles of fairness and justice in matrimonial property settlements. The court found that the wife was entitled to a significant proportion of the proceeds from the sale of the matrimonial home and a base amount from the husband’s superannuation fund. The court also ruled that the wife should bear the capital gains tax incurred on shares owned during the marriage and retained specific personal effects and assets as her sole property. Conversely, the husband was awarded the balance of the proceeds from the matrimonial home sale and other personal assets.

In conclusion, the court issued orders that comprehensively addressed the distribution of assets, superannuation entitlements, and personal effects, ensuring a fair and equitable settlement between the parties. The orders also included specific timelines and actions for the implementation of the superannuation splitting order and the reimbursement of capital gains tax.

Orders

Orders of the court

In full and final settlement of all claims for settlement of matrimonial property between the parties:

The proceeds of sale of the parties’ former matrimonial home situated at Property W in the State of South Australia be distributed as follows:

(a) The sum of $316,300.00 to the wife;

(b) The balance to the husband.

The wife pay all capital gains tax incurred in her name in respect of the shares owned by her during the marriage.

Pursuant to section 90MT(1)(a) of the Family Law Act there be a splitting order in respect of the husband’s [M] super fund and pursuant to section 90MT(4) of the Act a base amount in the sum of $55,250.00 be allocated to the wife out of the husband’s interest in such fund.

The solicitor for the wife serve a copy of these orders on the trustee of the [M] super fund by 10 February 2010 and thereafter the aforesaid trustee has liberty to relist the matter before the court in the event that the trustee is unable to comply with order (3) hereof, but otherwise the operative time for the aforementioned splitting order shall be 17 February 2010.

The Trustee of the [M] super fund, the husband and the wife, in accordance with the Family Law (Superannuation) Regulations 2001 shall do such acts and things and sign all necessary documents as may be necessary to calculate the payment entitlement of the wife in accordance with order (3) hereof.

The wife retain as her sole property without any claims from the husband:

(a) Her personal effects and clothing currently in her possession;

(b) Her jeweller currently in her possession;

(d) All insurance policies, superannuation entitlements, shares and moneys standing in her name in any bank or financial institution.

The husband retain as his sole property without any claims from the wife:

(a) His personal effects and clothing currently in his possession;

(b) His furniture, furnishings and household effects currently in his possession;

(c) All insurance policies, superannuation entitlements (subject to the splitting order made pursuant to order (3) hereof), shares and moneys standing in his name in any bank or financial institution.

All applications be herein otherwise dismissed.

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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