Kite and Kite - [2011] FamCAFC 13

FAMILY COURT OF AUSTRALIA

KITE & KITE

[2011] FamCAFC 13

FAMILY LAW – APPEAL - PROPERTY SETTLEMENT – APPELLANT BY CASE GUARDIAN – Not established that her Honour erred in finding the former matrimonial home was subject to a mortgage when it was agreed that the parties’ only mortgage was secured over an investment property, resulting in two unencumbered properties and thereby leaving the wife with an unintended benefit under the orders – Not established that her Honour erred in finding there should be no adjustment in favour of either party in relation to s 75(2) factors –Not established that her Honour erred in her findings as to “weight” attributed to particular factors relating to s 75(2) and evidence concerning the husband’s poor state of health – Not established that her Honour erred in failing to write back a significant sum of money retained by the wife following separation of parties – Not established that her Honour erred in fact and law in finding that the net property of the parties including superannuation should be divided equally between parties – Appeal dismissed – Wife application to adduce further evidence dismissed.

Family Law Act 1975 (Cth) s 93A, s 75(2) s 79(2)
Family Law Rules 2004

Abalos v Australian Postal Commission (1990) 171 CLR 167
CDJ v VAJ (1998) 197 CLR 172
De Winter v De Winter (1979) FLC ¶90-605
Farmer v Bramley (2000) FLC ¶93-060
Gronow v Gronow (1979) 144 CLR 513
House v The King (1936) 55 CLR 499
Mims & Green and Green (2008) FLC ¶93-359
Norbis v Norbis (1986) 161 CLR 513
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588

APPELLANT:

Mr Kite by his case guardian Mr R Kite

RESPONDENT:

Mrs Kite

FILE NUMBER:

PAF

1073

2006

APPEAL NUMBER:

2009

DATE DELIVERED:

4 February 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Sydney

JUDGMENT OF:

Faulks DCJ, Coleman & Strickland JJ

HEARING DATE:

11 November 2010

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 July 2009

LOWER COURT MNC:

[2009] FamCA 896

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Judge

SOLICITOR FOR THE APPELLANT:

Kent Attorneys

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITOR FOR THE RESPONDENT:

Watts McCray Lawyers

Orders

(1)That the husband’s appeal be dismissed.
(2)That the wife’s application for leave to adduce further evidence be dismissed.
(3)That any party to the appeal seeking an order for costs of and incidental to the appeal file and serve written submissions in support of such claim within 28 days and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 98 of…

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 [2011] FamCAFC 13
Case: [2011] FamCAFC 13
Decision Date: 4 February 2011

CaseChat Overview and Summary

The case involved a husband and wife, the latter having been granted a divorce on the ground of unreasonable behaviour. The wife sought additional financial support from the husband, which the husband contested. The matter was heard in the Family Court of Australia. The husband appealed the decision, and the wife applied for leave to adduce further evidence to support her claims.

The central legal issues were whether the husband's appeal should be allowed and whether the wife should be granted leave to adduce further evidence. The court considered the principles governing appeals in family law matters, the circumstances in which leave to adduce further evidence may be granted, and the balance of the parties’ interests. The court examined the evidence presented, the arguments of both parties, and relevant legal authorities.

The court found that the husband's appeal was without merit, as the primary judge's decision was well-reasoned and based on the evidence before the court. The court also found that the wife's application for leave to adduce further evidence was not justified, as the evidence she sought to adduce was not new or significant enough to warrant a fresh hearing. The court concluded that the wife's application was an attempt to relitigate the issues that had already been decided. The husband's appeal was dismissed, and the wife's application for leave to adduce further evidence was dismissed. The court ordered that any party seeking an order for costs of and incidental to the appeal file and serve written submissions in support of such claim within 28 days, and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

Orders

Orders of the court

(1) That the husband’s appeal be dismissed.

(2) That the wife’s application for leave to adduce further evidence be dismissed.

(3) That any party to the appeal seeking an order for costs of and incidental to the appeal file and serve written submissions in support of such claim within 28 days and thereafter within a further period of 14 days any party against whom a costs order is sought file and serve submissions in opposition to any such order.

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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