Kent and Kent - [2008] FMCAfam 7

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENT & KENT

[2008] FMCAfam 7

FAMILY LAW – Alteration of property interests – pool of assets– legal fees as add-back – disparity in earning capacity – future needs – periodic spousal maintenance.

Family Law Act 1975, s.72, s.74 (1), s.75(2), s.77A, s.79. s.81, s.106A, s.117

Hickey & Hickey and Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 92 - 143
Ferraro & Ferraro (1993) FLC 92 - 335
AJO & GRO (2005) FLC 93 - 218
Biltoft & Biltoft (1995) FLC 92-614
C & C [1998] FamCA 143
Milankov & Milankov (2002) FLC 93-095
DJM & JLM (1998) FLC 92-816
Rosati & Rosati (1998) FLC 92-804
Clauson & Clauson (1995) FLC 92-595
Marinko & Marinko (1985) FLC 91-609
Plut & Plut (1987) FLC 91-834
Nutting & Nutting (1978) FLC 90-410
Bevan & Bevan (1995) FLC 92-600
Mitchell & Mitchell (1995) FLC 92-601
Hope & Hope (1977) FLC 90-294
Gyoper & Gyoper (1986) FLC 91-769
Wilson & Wilson (1989) FLC 92-033
Sapir & Sapir (No 2) (1989) FLC 92-047
Murkin & Murkin (1980) FLC 90-806
Jacobson & Jacobson (1989) FLC 92-003
Best & Best (1993) FLC 92-418
Bailey & Bailey (1978) FLC 90-424

Applicant:

MS KENT

Respondent:

MR KENT

File Number:

BRM 7880 of 2006

Judgment of:

Orchiston FM

Hearing date:

19 November 2007

Date of Last Submission:

19 November 2007

Delivered at:

Sydney

Delivered on:

24 January 2008

REPRESENTATION

Counsel for the Applicant:

Mr Bourke

Solicitors for the Applicant:

Kennedy Spanner Lawyers

Counsel for the Respondent:

Mr T F Jordan

Solicitors for the Respondent:

Myer Pigdon Lawyers

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 7880 of 2006

MS KENT

Applicant

And

MR KENT

Respondent

REASONS FOR JUDGMENT

The Application

In these proceedings, the Applicant Ms Kent (the wife) seeks alteration of property interests pursuant to s.79 of the Family Law Act (the Act) and spousal maintenance pursuant to s.74(1) of the Act against the Respondent Mr Kent (the husband).

Background

The wife was born in 1970 and the husband in 1970. Both are now aged 37 years. The parties commenced cohabitation in March 1989 and were married in 1992. They lived continuously together for a period of 17 years from March 1989 until they separated on or about

1 May 2006
.
There are 4 children of the marriage, [A] aged 12, [B] aged 10, [C] aged 8 and [D] aged 6.
The wife and 4 children currently reside at the former matrimonial home situated at Toowoomba (the Toowoomba property). The husband currently resides in a rented unit at [T]. The husband pays child support pursuant to an assessment of the Child Support Agency, and also pays spousal maintenance pursuant to an Interim Order of

11 December 2006
. The wife is not cohabiting with any other person.
At the commencement of their cohabitation…

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.

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Details

AGLC: Kent and Kent [2008] FMCAfam 7
Case: [2008] FMCAfam 7
Decision Date: 24 January 2008

CaseChat Overview and Summary

This case involved an application by the wife, Ms Kent, against the husband, Mr Kent, for an alteration of property interests and spousal maintenance. The husband, who has a significantly higher income than the wife, sought to maintain a substantial portion of the net matrimonial assets, while the wife sought a larger proportion and spousal maintenance. The Court identified and valued the assets and liabilities, considering contributions and relevant factors under the Family Law Act. The Court found that an equal division of the assets was appropriate, but given the disparity in future earning capacities, the wife should receive 82% of the assets. The Court also granted the wife spousal maintenance of $350 per week, finding that her responsibilities for the children and her limited earning capacity justified this provision. The husband was ordered to transfer the Toowoomba property and the Tarago motor vehicle to the wife as part of the property settlement.

Orders