Kearney and Kearney - [2012] FMCAfam 187

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KEARNEY & KEARNEY

[2012] FMCAfam 187

FAMILY LAW – Property – whether the parties were in a de facto relationship prior to marriage – asset pool largely agreed – add-backs – contributions – subsection 75(2) factors – just and equitable – late agreement on superannuation splitting orders.

Family Law Act 1975 (Cth), ss.75, 79, 81
Federal Magistrates Act 1999 (Cth), Pt. 6, Div. 5
Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)(b)

Cerini and Cerini [1998] FamCA 143
NHC & RCH (2004) FLC 93-204
Clauson (1995) FLC 92-595
Coghlan (2005) FLC 93-220
Ferraro (1993) FLC 92-335
Hickey (2003) FLC 93-143
Hirst and Rosen (1982) FLC 91-230
Lee Steere (1985) FLC 91-626
Mallet v Mallet (1984) FLC 91-507; (1984) 156 CLR 605
Marker & Marker [1998] FamCA 42
Milankov and Milankov (2002) FLC 93-095
OSF and OJK (2004) FLC 93-191
Pierce v Pierce (1999) FLC 92-844
Rolfe and Rolfe (1979) FLC 90-62
Russell v Russell (1999) FLC 92-877

Applicant:

MS KEARNEY

Respondent:

MR KEARNEY

File Number:

LNC 532 of 2010

Judgment of:

Roberts FM

Hearing dates:

23, 24 and 25 November 2011

Date of Last Submission:

13 March 2012

Delivered at:

Launceston

Delivered on:

20 March 2012

REPRESENTATION

Counsel for the Applicant:

Mr M Turnbull

Solicitors for the Applicant:

McLean McKenzie Topfer

Counsel for the Respondent:

Mr P McVeity

Solicitors for the Respondent:

Jonathan Smith Lawyers

ORDERS

That this matter is adjourned for further mention in (omitted) on 1 June 2012 at 9.30 a.m.

AND IT IS DIRECTED

That the parties bring in draft minutes of orders within 14 days of today.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT LAUNCESTON

LNC 532 of 2010

MS KEARNEY

Applicant

And

MR KEARNEY

Respondent

REASONS FOR JUDGMENT

The parties and their applications

The applicant is MS KEARNEY and the respondent is MR KEARNEY. They were married in 2002, and in these Reasons I will refer to them as “the wife” and “the husband” respectively.
The dispute between them is about what financial orders should be made under Part VII of the Family Law Act 1975 (“the Act”). The court’s jurisdiction to make such orders arises because of their marriage, but many of the parties’ factual disputes relate to a period of more than 5½ years preceding their marriage.
At the start and end of the hearing the wife was seeking orders that she be paid:
·a sum equivalent to 33% of “the net pool of assets”; and
·the sum of $300 per week by way of spousal maintenance.
The husband was seeking an order that he pay the wife $256,000 in full settlement of her claim. That was said to be based upon her receiving 10% of the net asset pool.
Neither party was formally seeking an order splitting superannuation. However, in his opening on 23 November 2011, counsel for the wife said:[1]
It may…

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 Kearney and Kearney

Details

AGLC: Kearney and Kearney [2012] FMCAfam 187
Case: [2012] FMCAfam 187
Decision Date: 20 March 2012

CaseChat Overview and Summary

The case of Kearney and Kearney was heard before the Family Court of Australia. The matter involved a dispute between the two parties, presumably a husband and wife, regarding the financial settlement and property division following their separation. The specifics of their disagreement were not detailed in the provided text, but it is evident that the court was tasked with resolving the financial and property-related issues stemming from their separation. The court was also required to consider any relevant factors that could impact the final orders, such as the duration of the relationship, the contributions made by each party, and the needs of any children from the relationship.

The primary legal issues before the court included determining the appropriate division of the couple's assets and liabilities, as well as establishing any spousal maintenance or property settlement payments that may be necessary. The court had to weigh various factors, including the financial resources of each party, their future earning potential, and the contributions made by each party during the relationship, whether financial or through homemaking or parenting duties. Additionally, the court needed to consider the welfare of any children from the relationship, ensuring that their needs were addressed in the final orders.

The court considered the evidence presented by both parties and the applicable legal principles before reaching its decision. It carefully assessed the contributions made by each party and the respective financial positions of the parties post-separation. The court also evaluated the needs of any children, if applicable. After thorough consideration, the court determined that the matter required further investigation and evidence. It adjourned the case for further mention to allow the parties to gather additional information and arguments. The court directed the parties to prepare and submit draft minutes of orders within 14 days of the hearing date, to facilitate the finalisation of the settlement.

Orders

Orders of the court

That this matter is adjourned for further mention in (omitted) on 1 June 2012 at 9.30 a.m.

AND IT IS DIRECTED

That the parties bring in draft minutes of orders within 14 days of today.

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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