Kennedy v Manns - [2006] NSWSC 726

CITATION: Kennedy v Manns [2006] NSWSC 726

HEARING DATE(S): 17 and 18 July 2006

JUDGMENT DATE :
28 September 2006

JURISDICTION: Equity Division

JUDGMENT OF: Associate Justice Macready at 1

CATCHWORDS: Family Law. Application for property adjustment under Property (Relationships) Act 1984. Whether global or asset by asset approach should be adopted. Date of separation used for adjustment purposes

PARTIES: Carolyne Gaye Kennedy v Paul Robert Manns

FILE NUMBER(S): SC 2973 of 2005

COUNSEL: G. Brzostowski SC for plaintiff
R. Harper for defendant

SOLICITORS: Walsh & Blair for plaintiff
Commins Hendriks for defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Associate Justice Macready

Thursday 28 September 2006

2973 of 2005 Carolyne Gaye Kennedy v Paul Robert Manns

JUDGMENT

1 His Honour: This is an application for adjustment of property interests under section 20 of the Property Relationships Act 1984 (NSW). The parties had two children from their relationship and each party had children from a previous marriage.

Background facts

2 The plaintiff was born on 11 July 1954 and the defendant on 21 December 1954.

3 The plaintiff’s first child, by a prior marriage, Elizabeth Bevan, was born on 24 August 1973 and her second child, Robert Bevan, was born on 31 January 1975. Her third child, by a prior relationship, Michael Richard Kennedy, was born on 27 June 1989. On 23 March 1990 the plaintiff’s fourth child, David John Kennedy, was born.

4 On 12 October 1976 the defendant’s first child, by a prior marriage, Paula, was born. His second child, Melissa, was born on 24 April 1979.

5 In the early 1980s the defendant, with the assistance and tuition of his father, an experienced beekeeper, started his own beekeeping business while at the same time maintaining employment as a motor mechanic.

6 By 1985 the defendant had developed his beekeeping business to the extent that he then ceased working as an employed motor mechanic and commenced working full time, on a self employed basis, as a beekeeper.

7 In 1990 the defendant separated from his first wife Eva Manns. In late 1992 or early 1993 the defendant left his home at 116 William Street, Gundagai, which he co-owned with his former wife Eva Manns and commenced to reside in a rented property at 109 Hanley Street, Gundagai.

8 On 23 February 1992 or 1993 the parties’ relationship commenced with the defendant asking the plaintiff out on a date. The plaintiff, at that time, was living in rented Housing Commission premises in Sydney with her children. The plaintiff was working full time as an employee at Guilfoyle Beekeeping Equipment. The plaintiff was not receiving any child support or other financial assistance form the children’s father and that total lack of financial assistance from the children’s father continued thereafter.

9 At that time the defendant was living in Gundagai and engaged full time in operating and developing his beekeeping business.

10 In either December 1992 or mid 1993 the plaintiff resigned her employment…

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 Kennedy v Manns

Details

AGLC: Kennedy v Manns [2006] NSWSC 726
Case: [2006] NSWSC 726
Decision Date: 28 September 2006

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Kennedy v Manns involved a dispute between former spouses over the equitable distribution of their property following their separation. The central issue was whether the court should apply a global approach or an asset by asset approach in determining the property settlement, as well as the appropriate date for valuing the assets for the purposes of the adjustment. The Property (Relationships) Act 1984 provided the statutory framework within which these issues were to be decided.

The legal issues before the court were whether the traditional global approach, which considers the overall wealth of the parties, was more appropriate than an asset by asset approach, which examines each asset individually. Additionally, the court needed to determine the correct date from which to value the assets, which was crucial given the fluctuations in property values and other investments over time. The parties argued for different valuation dates, with the applicant advocating for a date closer to the separation, while the respondent preferred a later date.

The court examined the statutory provisions and case law to discern the appropriate approach. It noted that while the global approach was traditionally favoured, the legislation allows for an asset by asset approach in certain circumstances. The court held that an asset by asset approach was suitable in this case due to the significant differences in the nature and value of the assets held by the parties. Regarding the date for valuation, the court found that the date of separation was the most appropriate as it reflected the point at which the parties' financial obligations and entitlements should be assessed. The court concluded that this date provided a fair and equitable basis for the property adjustment.

The court ordered that the property settlement be calculated using an asset by asset approach, with the valuation date set as the date of separation. This decision ensured that each asset's value was considered individually, and the valuation date aligned with the timing of the separation, providing a clear and fair resolution to the dispute.

Orders