Kitman and Kitman - [2007] FamCA 822

FAMILY COURT OF AUSTRALIA

KITMAN & KITMAN

[2007] FamCA 822

FAMILY LAW - APPEAL – MAINTENANCE – Interim spousal maintenance – Husband ordered to pay lump sum maintenance of $2,000 and interim periodic maintenance of $660 per week – Wife’s need for maintenance conceded – Husband claimed he lacked capacity to pay the maintenance sought and could only afford $75- 80 per week – Trial judge found husband was not a witness of credit as to the manner in which he disposed of some small savings and then wrongly refused to accept his evidence as to expenditure even though it was modest and credible – Husband’s liability to pay his share of the mortgage on home occupied by wife is a necessary expense (see In the Marriage of Gyselman (1992) FLC 92-279) - After this payment and all other expenses, he has only $110 per week reasonably remaining to satisfy a maintenance order and the appeal is allowed to reflect this finding – Due to the scant evidence of the wife’s immediate need, the lump sum is reduced to $1,000 – While it is noted that the parties’ financial circumstances have changed since October 2006, it is disproportionate for the Full Court to consider these changes in light of the impending property proceedings where any variation to the interim spousal maintenance order can be appropriately dealt with

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; (1981) 35 ALR 625
Bolitho v Cohen (2005) FLC 93-224; (2005) 33 Fam LR 471
GWP Aarons & Co v Knowles (1995) FLC 92-627; (1995) 19 Fam LR 462
In the Marriage of Gyselman (1992) FLC 92-279; (1991) 15 Fam LR 219
In the Marriage of Rutherford (1991) FLC 92-255; (1991) 15 Fam LR 1
Stein v Stein (2000) FLC 93-004; (2000) 25 Fam LR 727

APPLICANT/APPELLANT:

MR KITMAN

RESPONDENT:

MS KITMAN

FILE NUMBER:

TVF

2438

2005

APPEAL NUMBER:

2007

DATE DELIVERED:

15 August 2007

PLACE DELIVERED:

MELBOURNE

PLACE HEARD:

BRISBANE

JUDGMENT OF:

BRYANT CJ, KAY & MAY JJ

HEARING DATE:

30 JULY 2007

LOWER COURT JURISDICTION:

FAMILY COURT OF AUSTRALIA

LOWER COURT JUDGMENT DATE:

27 SEPTEMBER 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT/

APPELLANT:

IN PERSON

SOLICITOR FOR THE APPLICANT/

APPELLANT:

COUNSEL FOR THE RESPONDENT:

MS PAGANI

SOLICITOR FOR THE RESPONDENT:

WILSON RYAN & GROSE

ORDERS

That the applicant have leave to appeal the orders made by the Honourable Justice Monteith on 27 September 2006.
That the appeal be allowed.
That order 1(a) of the orders be varied by substituting the sum of $1,000 for $2,000 therein appearing.
That order 1(b) of the orders be varied by substituting the sum of $110 for the sum of $660, and the sum of $220 for the sum of $1,320 therein appearing.
That order 2(i) be varied by substituting the words “one half of mortgage payments in the sum of $500 every four…

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 Kitman and Kitman

Details

AGLC: Kitman and Kitman [2007] FamCA 822
Case: [2007] FamCA 822
Decision Date: 15 August 2007

CaseChat Overview and Summary

The Full Court of the Family Court of Australia heard an appeal by the applicant against orders made by Monteith J on 27 September 2006. The dispute concerned financial matters between the parties.

The primary legal issue before the Full Court was whether the orders made by Monteith J were appropriate and should be upheld, varied, or set aside. This involved a review of the financial provisions ordered by the primary judge.

The Full Court allowed the appeal, finding that variations to the original orders were necessary. The court varied specific monetary sums relating to payments and substituted certain payment terms. Orders 3 and 4 of the original orders were set aside. The court also granted costs certificates to both the appellant and the respondent under the Federal Proceedings (Costs) Act 1981 (Cth), indicating that it was appropriate for the Attorney-General to authorise payments in respect of costs incurred by each party on the appeal.

Orders

Orders of the court

That the applicant have leave to appeal the orders made by the Honourable Justice Monteith on 27 September 2006.

That the appeal be allowed.

That order 1(a) of the orders be varied by substituting the sum of $1,000 for $2,000 therein appearing.

That order 1(b) of the orders be varied by substituting the sum of $110 for the sum of $660, and the sum of $220 for the sum of $1,320 therein appearing.

That order 2(i) be varied by substituting the words “one half of mortgage payments in the sum of $500 every four weeks” for the words “mortgage payments in the sum of $1,000 per month” therein appearing.

That orders 3 and 4 of the orders be set aside.

That the Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

That the Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

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.