Kaufman and Kaufman - [2009] FamCA 184

FAMILY COURT OF AUSTRALIA

KAUFMAN & KAUFMAN

[2009] FamCA 184

FAMILY LAW – PROPERTY – Partial property order – Compelling and just and equitable – Sufficient property remaining to final hearing – Like sum paid to boeth husband and wife

Family Law Act 1975 (Cth)

Harris v Harris (1993) FLC 92-378

APPLICANT:

MR KAUFMAN

RESPONDENT:

MS KAUFMAN

FILE NUMBER:

MLC

7188

2008

DATE DELIVERED:

11 MARCH 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

YOUNG J

HEARING DATE:

11 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR DICKSON

SOLICITOR FOR THE APPLICANT:

KENNA TEASDALE LAWYERS

COUNSEL FOR THE RESPONDENT:

MR HANNAN

SOLICITOR FOR THE RESPONDENT:

SAXBYS LAWYERS

ORDERS

IT IS ORDERED:

THAT each of the parties forthwith sign all documents and do all acts and things to facilitate a payment of $200,000 to each of them from the Westpac Banking Corporation account number ….
THAT this payment be as a partial settlement of property.
THAT the application in a case filed 13 February 2009 be otherwise dismissed.
THAT there be no orders as to costs.
THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 7188 of 2008

MR KAUFMAN

Applicant

And

MS KAUFMAN

Respondent

REASONS FOR JUDGMENT

The matter of Kaufman and Kaufman and others comes before me in the Judicial Duty List by way of a transfer from the Senior Registrar. Mr Dickson of counsel appears for the husband and Mr Hannan of counsel appears for the wife. Both parties are in court as are instructing solicitors.
The application in a case in this matter was filed 13 February 2009. The husband seeks payment from a joint investment account with Westpac Banking Corporation the sum of $250,000 by way of partial property settlement together with, if successful, costs of this application. In support of that application the husband has filed an affidavit on 13 February 2009. I have read that somewhat extensive affidavit and the annexures thereto. Otherwise, his solicitor filed on that same day an affidavit in support of the legal costs, past and present and future costs of proceedings. I have read Mr Gregory's affidavit.
This morning, and over objection, the husband sought leave to file a further affidavit. I granted leave on the basis that it did not or should not cause any financial or legal disadvantage to the wife or her solicitors. That affidavit effectively set out a list of the further payments made from the earlier, out of court, agreed partial property distribution. I record that I have read each of the affidavits filed by…

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 Kaufman and Kaufman

Details

AGLC: Kaufman and Kaufman [2009] FamCA 184
Case: [2009] FamCA 184
Decision Date: 11 March 2009

CaseChat Overview and Summary

In *Kaufman and Kaufman*, heard before Young J, the dispute concerned the division of property between a husband and wife. The court was required to determine how to achieve a partial settlement of the parties' property interests.

The central legal issue before the court was the appropriate mechanism for distributing a portion of the marital assets to the parties. Specifically, the court had to decide on the quantum of the partial settlement and the method by which it would be facilitated.

Young J ordered that each party was to receive $200,000 from a specified Westpac Banking Corporation account. This payment was to constitute a partial settlement of their property interests. The court further ordered that the application filed on 13 February 2009 be otherwise dismissed, and that there be no orders as to costs. The reasons for judgment were to be transcribed and made available to the parties.

Orders

Orders of the court

IT IS ORDERED:

THAT each of the parties forthwith sign all documents and do all acts and things to facilitate a payment of $200,000 to each of them from the Westpac Banking Corporation account number ….

THAT this payment be as a partial settlement of property.

THAT the application in a case filed 13 February 2009 be otherwise dismissed.

THAT there be no orders as to costs.

THAT the extempore reasons for judgment be transcribed, be placed upon the Court file and be made available to the parties.

IT IS CERTIFIED

THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the husband and wife.

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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