Kite and Kite - [2010] FamCA 911

FAMILY COURT OF AUSTRALIA

KITE & KITE

[2010] FamCA 911

FAMILY LAW – PROPERTY PROCEEDINGS – Husband’s application pursuant to s79 (2) of the Family Law Act 1975 (cth) – Court required to make orders that are “just and equitable” – Pursuant to Part 10.4 of the Family Law Rule, orders declarations and notations are made in terms of the minutes submitted by Counsel for the parties in the light of the Court’s findings – Gabel & Yardley (2008) FLC 93-386 –Lippmann & Lippman [2010] FamCAFC 127– Weir v Weir (1993) FLC 92-338

Gabel & Yardley (2008) FLC 93-386
Lippmann & Lippman [2010] FamCAFC 127
Weir v Weir (1993) FLC 92-338

Family Law Act 1975 (Cth)

APPLICANT:

MR KITE

RESPONDENT:

MS KITE

FILE NUMBER:

BRF

3200

2004

DATE DELIVERED:

6 AUGUST 2010

PLACE DELIVERED:

PARRAMATTA

PLACE HEARD:

SYDNEY

JUDGMENT OF:

COLEMAN J

HEARING DATE:

6 AUGUST 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR T. KIRK, SC

SOLICITOR FOR THE APPLICANT:

BEATA LESZCZUK
HARTLEY HEALY

COUNSEL FOR THE RESPONDENT:

MS J. HOGAN

SOLICITOR FOR THE RESPONDENT:

BARRY & NILSSON LAWYERS

Orders

That pursuant to Part 10.4 of the Family Law Rule, orders declarations and notations are made in terms of the minutes submitted by Counsel for the parties in the light of the Court’s findings.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: BRF 3200 of 2004

MR KITE

Applicant

And

MS KITE

Respondent

EX TEMPORE REASONS FOR JUDGMENT

These reasons for judgment are supplementary to the judgment of the Court delivered in November 2006.
As is not in doubt, the intention of the Court that the orders made at the time of the delivery of that judgment would be implemented shortly thereafter in the terms of minutes agreed in the light of the Court’s published conclusions has not been fulfilled. Why that is so is not entirely clear, and probably not relevant anyway.
The parties acknowledge that the Court’s powers under section 79 have not been exhausted or “spent”, as those terms have been used in a number of recent authorities (See Gabel & Yardley (2008) FLC 93-386 and Lippmann & Lippman [2010] FamCAFC 127). The Court having not exhausted its powers under section 79, the overarching requirements of section 79(2) of the Act remain. Section 79(2) requires the Court to make orders that are just and equitable. That obligation influences what the Court ultimately can or should order in the circumstances of this case.
It is common ground that it was open to either party to reagitate their contribution-based entitlements. Sensibly, neither party has. Similarly, it has been open to the parties to agitate such matters as they consider relevant within the context of section 75(2). Again, sensibly, that has not occurred.
The approach to the proceedings is essentially that subject to what follows the Court will endeavour to…

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 Kite and Kite

Details

AGLC: Kite and Kite [2010] FamCA 911
Case: [2010] FamCA 911
Decision Date: 6 AUGUST 2010

CaseChat Overview and Summary

In *Kite and Kite*, heard by Coleman J, the parties sought declarations and notations concerning their financial relationship. The specific nature of the dispute leading to these declarations and notations is not detailed in the provided text, beyond the fact that the parties had reached an agreement on the terms.

The central legal issue before the Court was to determine whether to make orders, declarations, and notations in accordance with the minutes of settlement submitted by the parties' counsel. This required the Court to be satisfied that the proposed terms were appropriate and legally sound, reflecting the parties' agreement.

Coleman J's reasoning, as indicated by the orders made, was that the minutes of settlement presented by counsel were acceptable. The Court applied the principles governing the making of consent orders in family law proceedings, which generally involve ensuring the terms are just and equitable and that the parties have genuinely agreed to them. The Court's finding, therefore, was that the proposed declarations and notations were appropriate to be made.

Pursuant to Part 10.4 of the Family Law Rules, the Court made orders, declarations, and notations in terms of the minutes submitted by counsel for the parties, reflecting the Court’s findings.

Orders

Orders of the court

That pursuant to Part 10.4 of the Family Law Rule, orders declarations and notations are made in terms of the minutes submitted by Counsel for the parties in the light of the Court’s findings.

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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