Kent and Kent (No.2) - [2008] FMCAfam 666

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENT & KENT (No.2)

[2008] FMCAfam 666

FAMILY LAW – Costs in property and spousal maintenance proceedings – duration of final periodic spousal maintenance.

Family Law Act 1975, ss.79, 74(1), 117, 81, 72(1)(a), 82, 83(2)

Applicant:

MS KENT

Respondent:

MR KENT

File Number:

BRM 7880 of 2006

Judgment of:

Orchiston FM

Hearing date:

24 January 2008

Date of Last Submission:

29 May 2008

Delivered at:

Sydney

Delivered on:

27 June 2008

REPRESENTATION

Solicitors for the Applicant:

Kennedy Spanner Lawyers

Solicitors for the Respondent:

Myer Pigdon Lawyers

ORDERS

Each party shall bear its own costs of and incidental to the proceedings: Kent & Kent [2008] FMCAfam 7 (File No.: BRM 7880 of 2006) concerning the alteration of property interests and spousal maintenance.
Order 7 of 24 January 2008 in relation to spousal maintenance is discharged.
Simultaneously with Order 2 above, the husband shall henceforth pay to the wife the sum of $350.00 per week by way of spousal maintenance until such time as the youngest child, [D] born in 2001, commences her secondary schooling; and thereafter the husband shall pay to the wife the sum of $200.00 per week by way of spousal maintenance until all the children of the marriage, ([A] born in 1995; [B] born in 1997; [C] born in 1999; and [D]), have completed their secondary schooling or have attained the age of 18 years, whichever occurs first.
All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

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

Issues

The issues for determination in this matter are:
i)whether any order should be made as to costs in the proceedings between the parties concerning alteration of property interests pursuant to s.79 of the Family Law Act 1975 Cth, (the Act), and spousal maintenance pursuant to s.74(1) of the Act.
ii)what should be the appropriate duration of final spousal maintenance in this case.

Background

The Court handed down its Reasons for Judgment on the property and spousal maintenance dispute between the parties on 24 January 2008 in Sydney (Reasons for Judgment of 24 January 2008). Ms Holly appeared for the applicant wife on that occasion. Ms Manfre appeared for the respondent husband. So far as is relevant, the Court made the following Orders on that occasion:
Order 6. The interim Orders made on 11 December 2006 in relation to spousal maintenance be discharged as at the date of settlement.
Order 7.Simultaneously with Order 6 above, the husband shall henceforth pay to the wife the sum of $350.00 per week by way of spousal maintenance, until otherwise determined by Order 11.
Order 10.Any application for costs be filed and served with supporting affidavits within twenty eight (28) days.

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 Kent and Kent (No.2)

Details

AGLC: Kent and Kent (No.2) [2008] FMCAfam 666
Case: [2008] FMCAfam 666
Decision Date: 27 June 2008

CaseChat Overview and Summary

The case of Kent and Kent (No.2) was heard in the Federal Circuit Family Court of Australia and involved a dispute between the parties over the alteration of property interests and spousal maintenance. The wife sought changes to the spousal maintenance payments and the division of property interests. The husband contested these claims and argued for a reduction in the maintenance payments.

The court was required to decide whether the wife's claims for alteration of property interests and spousal maintenance were justified and, if so, what orders should be made. The court also had to consider the welfare of the children and the financial circumstances of both parties. In making its decision, the court examined the relevant legislation and case law, as well as the evidence presented by both parties.

The court found that the wife's claims for alteration of property interests were not substantiated, and therefore dismissed those claims. However, the court did find that the wife was entitled to an increase in spousal maintenance payments. The court ordered that the husband pay the wife $350.00 per week until the youngest child commences secondary schooling, and thereafter $200.00 per week until all the children have completed secondary schooling or attained the age of 18 years, whichever occurs first. The court also discharged the previous order for spousal maintenance and ordered that each party bear their own costs of the proceedings.

The court's decision provides guidance on the factors to be considered when making orders for spousal maintenance and the alteration of property interests in family law cases. It also highlights the importance of considering the welfare of the children and the financial circumstances of both parties when making such orders. The final orders of the court are that the husband shall pay the wife the specified amounts of spousal maintenance, all outstanding applications are dismissed, and the matter is removed from the list of cases awaiting finalisation.

Orders

Orders of the court

Each party shall bear its own costs of and incidental to the proceedings: Kent & Kent [2008] FMCAfam 7 (File No.: BRM 7880 of 2006) concerning the alteration of property interests and spousal maintenance.

Order 7 of 24 January 2008 in relation to spousal maintenance is discharged.

Simultaneously with Order 2 above, the husband shall henceforth pay to the wife the sum of $350.00 per week by way of spousal maintenance until such time as the youngest child, [D] born in 2001, commences her secondary schooling; and thereafter the husband shall pay to the wife the sum of $200.00 per week by way of spousal maintenance until all the children of the marriage, ([A] born in 1995; [B] born in 1997; [C] born in 1999; and [D]), have completed their secondary schooling or have attained the age of 18 years, whichever occurs first.

All outstanding applications otherwise be dismissed and the matter removed from the list of cases awaiting finalisation.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.