Kiefer and Kiefer - [2009] FMCAfam 279

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KIEFER & KIEFER

[2009] FMCAfam 279

FAMILY LAW – Property settlement – short marriage – contributions – losses accumulated during relationship – death of applicant – future needs of the respondent – no order as to costs.

Family Law Act 1975 (Cth) ss.75(2), 79, 79(4)(a)-(g), 79(8), 117(1), 117(2)(A)
Evidence Act 1995 (Cth) s.191
Federal Magistrates Court Rules 2001 (Cth) r.15.06
Family Law Rules 2004 (Cth) r.15

Lee Steere & Lee Steere [1985] FLC 91-626
Ferraro & Ferraro [1993] FLC 92-335
Clauson & Clauson [1995] FLC 92-595
Russell & Russell [1999] FLC 92-877
Kiefer & Kiefer [2008] FamCA FC 197
Dorney & Dorney [2007] FMCAfam 617
Crampton & Crampton (2006) FLC 93-269
D & D (2005) FamCA 35
Quinn & Quinn (1979) FLC 90-677
Norbis & Norbis (1986) 161 CLR 513
McMahon & McMahon (1995) FLC 92-606
Kowaliw & Kowaliw (1981) FLC 91-092
Tuck & Tuck (1981) FLC 91-021
Kiefer & Kiefer [2008] FMCAfam 138
Hamilton & Thomas [2008] FamCA FC 8
Pierce & Pierce [1999] FLC 92-844
Clives & Clives [2008] FamCA FC 172
Penfold v Penfold (1980) 144 CLR 311

Applicant:

MS KIEFER

Respondent:

MR KIEFER

File Number:

MLM 6070 of 2006

Judgment of:

O'Sullivan FM

Hearing dates:

25 & 26 March 2009

Date of Last Submission:

26 March 2009

Delivered at:

Melbourne

Delivered on:

26 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr A. Skerlj

Solicitors for the Applicant:

Harwood Andrews

Counsel for the Respondent:

Ms M. L. Smallwood

Solicitors for the Respondent:

Pearsons Barristers & Solicitors

ORDERS

The respondent pay to the applicant the sum of $63,350 within 90 days (“the payment”).
That upon the payment, the applicant provide to the respondent a Withdrawal of Caveat lodged over Property E (“the Property E property”).
That in the event the respondent defaults in payment by the due date then the Property E property be transferred to the applicant upon trust pending the sale and the property be sold forthwith (“the sale”).
That in the event there is a dispute in relation to the terms and conditions of the sale of the Property E property referred to in order

3 herein, such terms and conditions be determined by the President of the Real Estate Institute of Victoria or his nominees.
That the proceeds of sale of the Property E property be applied as follows:
(a)to pay costs, commissions and expenses incidental to the sale and trust transfer;
(b)to discharge any encumbrances effecting the title to the property;
(c)the applicant receive $63,350 together with interest thereon at the rate of 11% per annum adjusted monthly; and
(d)to pay the balance to the respondent.
That pending the payment or completion of the sale:
(a)The respondent have the sole right to occupy the Property E property and during such right of occupation the respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property E property as they fall due;
(b)The parties hold their respective interests in the…

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 Kiefer and Kiefer

Details

AGLC: Kiefer and Kiefer [2009] FMCAfam 279
Case: [2009] FMCAfam 279
Decision Date: 26 June 2009

CaseChat Overview and Summary

The parties involved in this matter are Kiefer and Kiefer. The dispute centres around the division of property and assets between the parties following their separation. The case was heard in the Family Court of Australia. The legal issues the court had to address included the division of property, the payment of certain debts, and the allocation of assets between the parties. The court was also required to determine the terms and conditions of the sale of a specific property, should the respondent default on the payment ordered.

The court deliberated on the evidence presented and the applicable legal principles. It found that the applicant was entitled to specific sums of money and property from the respondent, with certain conditions attached to the sale of a particular property if the respondent failed to make the ordered payment. The court also determined that the parties should retain their own superannuation, personal property, and choses-in-action, and that any joint tenancy in real or personal estate was severed. The court ordered that the respondent pay the applicant a specific sum of money within 90 days, with provisions for the sale of a property if the payment was not made. The court also ordered that the proceeds of the sale be applied in a specific manner, with certain debts and expenses to be paid first.

The final orders of the court include the payment of a specific sum to the applicant, the sale of a property if the payment is not made, the retention of certain assets by each party, and the discharge of certain debts. The court also ordered that the respondent's former solicitors pay a specific sum to the applicant and that the applicant be solely liable for certain debts. The court further ordered that the parties retain their own motor vehicles, that the respondent retain specific equipment, and that the parties be solely liable for and indemnify each other against any liabilities encumbering their respective properties. The court made no order as to costs and dismissed all extant applications.

Orders

Orders of the court

The respondent pay to the applicant the sum of $63,350 within 90 days (“the payment”).

That upon the payment, the applicant provide to the respondent a Withdrawal of Caveat lodged over Property E (“the Property E property”).

That in the event the respondent defaults in payment by the due date then the Property E property be transferred to the applicant upon trust pending the sale and the property be sold forthwith (“the sale”).

That in the event there is a dispute in relation to the terms and conditions of the sale of the Property E property referred to in order

3 herein, such terms and conditions be determined by the President of the Real Estate Institute of Victoria or his nominees.

That the proceeds of sale of the Property E property be applied as follows:

(a) to pay costs, commissions and expenses incidental to the sale and trust transfer;

(b) to discharge any encumbrances effecting the title to the property;

(d) to pay the balance to the respondent.

That pending the payment or completion of the sale:

(a) The respondent have the sole right to occupy the Property E property and during such right of occupation the respondent pay all instalments pursuant to the mortgage and all rates and taxes and like apportionable outgoings of the Property E property as they fall due;

(b) The parties hold their respective interests in the Property E property upon trust pursuant to these orders; and

The respondent’s former solicitors, Messrs. Lou Castellano Lawyers provide to the applicant a cheque in the sum of $30,000 held in trust within 7 days of service upon them of these Orders.

That the applicant retain the net proceeds of sale of the Property S property.

The applicant retain the net proceeds of sale of the Property C property and be solely liable for and indemnify the respondent against the discharge of the RAMS home loan encumbering that property.

10.

That each party retain their own motor vehicle.

11.

The applicant be solely liable for the Mastercard debt approximately in the sum of $48,000.

12.

The respondent retain the shop fitting equipment and the coffee equipment.

13.

That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the respondent/applicant).

(b) Monies standing to the credit of the parties in any joint bank account are to become the property of the respondent/applicant.

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

14.

There be no order as to costs.

15.

All extant applications be dismissed and removed from the Pending Cases List.

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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