Kendrick and Kendrick - [2012] FMCAfam 1032

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENDRICK & KENDRICK

[2012] FMCAfam 1032

FAMILY LAW – Property – add backs – notional asset pool – financial contribution from wife’s parents during marriage – portion of funds spent by husband notionally added back into asset pool – s.75(2) future needs.

Family Law Act 1975, ss.75(2), 79

Lee Steere & Lee Steere (1985) FLC 91-626
Hickey & Hickey (2003) FLC 93-143
AJO & GRO (2005) FLC 93-218
D & D (2003) FamCA 473
NHC & RCH (2004) FLC 93-204
M & M [1998] FamCA 42
C & C [1998] FamCA 143
D J M & J L M (1998) FLC 92-816;
Townsend & Townsend (1995) FLC 92-569
Edgehill & Edgehill [2007] FamCA 1102

Kessey & Kessey (1994) FLC 92-495
Kowaliw & Kowaliw (1981) FLC 91-092

Applicant:

MS KENDRICK

Respondent:

MR KENDRICK

File Number:

ADC 2649 of 2011

Judgment of:

Kelly FM

Hearing dates:

14, 15, 27 June, 26 July 2012

Date of Last Submission:

26 July 2012

Delivered at:

Adelaide

Delivered on:

28 September 2012

REPRESENTATION

Counsel for the Applicant:

Ms H Tinning

Solicitors for the Applicant:

Adey Lawyers

Counsel for the Respondent:

Mr Campton

Solicitors for the Respondent:

Andrew R Ford

ORDERS

In full and final settlement of any claim that either party may have against the other now or at any time in the future for settlement of property

The funds presently held in NAB Account no [1] be disbursed as follows:
(a)to the wife the sum of $207,418;
(b)to the husband the sum of $518,926.
Within 28 days the husband shall transfer to the wife his estate and interest in the following:
(a)the Voyager and Mercedes motor vehicles;
(b)his shareholding in [D] Investment Group Pty Ltd (“the company”) and shall resign as a director of that company;
(c)his interest as a beneficiary or other object, or his units in both the [D] Trust and the [D] Investment Trust;
with the wife to prepare all necessary documentation at her expense to give effect to the relevant transfers.
Thereafter the wife shall be responsible for and pay all claims, actions, demands and liabilities arising from or relating to the husband’s interest in the [D] Investment Group Pty Ltd (whether as a shareholder or director of the company), the [D] Investment Trust and the [D] Trust and shall indemnify the husband in relation to same.
Thereafter the husband shall forego any claim against the [D] Investment Group Pty Ltd, the [D] Trust and the [D] Investment Trust or any claim against the wife in relation to any of these entities.
The determination of the husband’s involvement, holding or capacity with respect to the company and the Trusts shall be deemed to have fully ended on 30 June 2011.
As and from 30 June 2011 the wife shall hereby be deemed at all times from that date to have had the sole conduct and running of the company and Trusts without any claim by the husband.
In accordance with section 90MT(1) of the Family…

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 Kendrick and Kendrick

Details

AGLC: Kendrick and Kendrick [2012] FMCAfam 1032
Case: [2012] FMCAfam 1032
Decision Date

CaseChat Overview and Summary

The Federal Magistrates Court of Australia in Kendrick & Kendrick [2012] FMCAfam 1032 dealt with a property settlement dispute between the parties, Ms Kendrick and Mr Kendrick, following their separation. The case involved determining the appropriate division of assets and liabilities between the parties, as well as addressing the issue of spousal maintenance. The Court was required to assess the contributions of each party to the marriage, both financial and non-financial, and consider the future needs of each party in light of the relevant statutory factors under the Family Law Act 1975. The Court also had to decide on the appropriate allocation of superannuation interests and the treatment of certain post-separation financial arrangements. In its reasoning, the Court identified the assets and liabilities arising from the marriage, assessed the contributions of each party, and considered the future needs of both parties. The Court found that a significant portion of the husband's redundancy payment should be notionally added back into the asset pool, as well as a portion of his taxation refund. The Court also determined that the wife's parents made a substantial contribution to the matrimonial asset pool through the purchase of farming property. The Court concluded that an equal division of the superannuation interests represented a just and equitable outcome. The final orders included a division of the tangible assets and superannuation interests between the parties, with specific provisions for the transfer of certain assets and the allocation of superannuation benefits. The Court also addressed the dispute over the distribution of jewellery, determining that it should remain with the wife to be given to the children as she sees fit.

Orders