Kartis and Kartis - [2009] FamCA 116

FAMILY COURT OF AUSTRALIA

KARTIS & KARTIS

[2009] FamCA 116

FAMILY LAW – PROPERTY – Partial property settlement – Need to provide comprehensive facts and show compelling circumstances – Husband had signed a contract to buy a property and then sought a partial settlement to meet his expectations – Application dismissed – Costs

Family Law Act 1975 (Cth)

Harris v Harris (1993) FLC 92-378

APPLICANT:

Mr Kartis

RESPONDENT:

Ms Kartis

FILE NUMBER:

MLC

899

2009

DATE DELIVERED:

20 February 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

20 February 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS JENKINS

SOLICITOR FOR THE APPLICANT:

JOHN PASTRO & CO

COUNSEL FOR THE RESPONDENT:

MR DAVIS

SOLICITOR FOR THE RESPONDENT:

WILMOTH FIELD WARNE

Orders

That the husband’s application in a case filed on 5 February 2009 be dismissed.
That the husband pay the wife’s costs in respect of the said application in a case fixed at $2400 and payment be stayed until the finalisation of the parties’ property proceedings.

IT IS ORDERED BY CONSENT

That the wife forthwith provide the husband’s solicitors a list of three selling agents in the K and N areas and the husband choose one selling agent in each area within 7 days and such agent be engaged to conduct the sale.
That the properties situated at and known as:
(a) N property; and
(b) K property
be sold forthwith on terms and conditions to be agreed between the parties and in default of agreement on terms and conditions fixed by the selling agent.
The the proceeds of sales referred to in Order 3 to be applied to
(a) pay costs and commission of sale;
(b) discharge the mortgage liabilities encumbering the real properties.
(c)The balance of proceeds be invested in an interest bearing account and not be released without the written consent of the parties or further order of the court.
That the requirement for a case assessment conference be dispensed with.
That the parties attend a conciliation conference to be held on 8 April 2009 at 2.15pm.
That there be liberty to apply to seek further directions as to sale referred to in Order 4 hereof.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pending the sales the husband be entitled to receive the rental income from the properties including retained rent, with the trial judge to characterise all rentals received by the husband.
That the husband’s application in a case filed 5 February 2009 is dismissed.
That my reasons for judgment this day be transcribed.

IT IS NOTED that publication of this judgment under the pseudonym Kartis & Kartis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 899 of 2009

MR KARTIS

Applicant

And

MS KARTIS

Respondent

REASONS FOR JUDGMENT

On Friday 20 February 2009, I heard the application of 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 Kartis and Kartis

Details

AGLC: Kartis and Kartis [2009] FamCA 116
Case: [2009] FamCA 116
Decision Date: 20 February 2009

CaseChat Overview and Summary

In the matter of *Kartis and Kartis*, the Honourable Justice Cronin considered an application filed by the husband on 5 February 2009, which was subsequently dismissed. The proceedings involved disputes between the husband and wife concerning property matters.

The court was required to determine the disposition of certain properties, specifically the "N property" and the "K property," and to address the husband's application filed in February 2009. Additionally, the court considered the entitlement to rental income from the properties pending their sale and the allocation of sale proceeds.

Justice Cronin's reasoning, as evidenced by the orders made by consent, focused on facilitating the sale of the specified properties. The parties agreed on a process for selecting selling agents and the terms of sale, with provision for the agent to fix terms in the event of disagreement. The proceeds were to be applied first to sale costs and mortgage liabilities, with any balance to be invested. The court also addressed the husband's entitlement to rental income pending sale, with the trial judge to characterise all rentals received. The husband's application was dismissed, and he was ordered to pay the wife's costs in relation to that application.

Orders

Orders of the court

That the husband’s application in a case filed on 5 February 2009 be dismissed.

That the husband pay the wife’s costs in respect of the said application in a case fixed at $2400 and payment be stayed until the finalisation of the parties’ property proceedings.

IT IS ORDERED BY CONSENT

That the wife forthwith provide the husband’s solicitors a list of three selling agents in the K and N areas and the husband choose one selling agent in each area within 7 days and such agent be engaged to conduct the sale.

That the properties situated at and known as:

(a) N property; and

(b) K property

be sold forthwith on terms and conditions to be agreed between the parties and in default of agreement on terms and conditions fixed by the selling agent.

The the proceeds of sales referred to in Order 3 to be applied to

(a) pay costs and commission of sale;

(b) discharge the mortgage liabilities encumbering the real properties.

(c) The balance of proceeds be invested in an interest bearing account and not be released without the written consent of the parties or further order of the court.

That the requirement for a case assessment conference be dispensed with.

That the parties attend a conciliation conference to be held on 8 April 2009 at 2.15pm.

That there be liberty to apply to seek further directions as to sale referred to in Order 4 hereof.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

10.

That pending the sales the husband be entitled to receive the rental income from the properties including retained rent, with the trial judge to characterise all rentals received by the husband.

11.

That the husband’s application in a case filed 5 February 2009 is dismissed.

12.

That my reasons for judgment this day be transcribed.

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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