Kitman and Kitman

Case [2008] FamCAFC 166

FAMILY COURT OF AUSTRALIA

KITMAN & KITMAN [2008] FamCAFC 166

FAMILY LAW – APPEAL – SPOUSAL MAINENANCE – Wife did not seek periodic spousal maintenance – Husband did not have an opportunity to present evidence or cross-examine.

FAMILY LAW - APPEAL – Allowed - Orders for spousal maintenance dismissed.

FAMILY LAW - CROSS APPEAL – PROPERTY - Major assets superannuation and former matrimonial home – Wife unemployed but full time carer of the children – Husband Sergeant in the army - Whether the Federal Magistrate erred in not giving sufficient weight to wife’s financial circumstances – s75(2) factors.

FAMILY LAW - CROSS APPEAL – Allowed – Wife allowed greater proportion of assets and respondent’s superannuation fund.
Family Law Act 1975 (Cth) – ss72, 75(2), 90ME, 90MT(1)(b), 93A(2)

AMS v AIF (1999) 199 CLR 160
Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
CDJ & VAJ(No 1) (1998) 197 CLR 172
Fox v Percy (2003) 214 CLR 118
Gronow v Gronow (1979) 144 CLR 513
Hickey & Hickey & Attorney General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Mallett & Mallett [1984] HCA 21
S & S (2005) FLC 93-246
APPELLANT: MR KITMAN
RESPONDENT: MRS KITMAN
FILE NUMBER: TVM 2919 of 2006
APPEAL NUMBER: NA 35 of 2008
DATE DELIVERED: 5 November 2008
PLACE DELIVERED: Brisbane
PLACE HEARD: Brisbane
JUDGMENT OF: May J
HEARING DATE: 29 July 2008
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 19 March 2008
LOWER COURT MNC: [2008] FMCAfam 236

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Appellant appeared in person
COUNSEL FOR THE RESPONDENT:& CROSS APPELLANT Mr A Collins
SOLICITOR FOR THE RESPONDENT:& CROSS APPELLANT Wilson, Ryan & Grose

Orders

  1. The appeal be allowed.

  2. The orders contained in paragraphs 8 and 9 of the orders made on 19 March 2008 be discharged.

  3. The cross appeal be allowed.

  4. The orders contained in paragraph 6 be varied so that the following orders be substituted:

    6.        That by way of property settlement the wife receive:

    (a)70 percent (70%) of the assets of the parties excluding the husband’s interest in MSBS Superannuation; and

    (b)      35 percent (35%) of the husband’s MSBS Superannuation.

    (c)      To achieve this division:

    (i)The husband pay the further sum of $16,834.54 necessary to satisfy paragraph 6 (a) within 28 days of today.

    (vii)In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of [MR KITMAN] from his interest in the Military Superannuation Benefit Scheme (MSBS), [MRS KITMAN] is entitled to be paid (by the trustees of the MSBS) thirty five percent (35%) of the splittable payment and there shall be a corresponding reduction in the amount [MR KITMAN] would be entitled to receive but for these orders.

IT IS NOTED that publication of this judgment under the pseudonym Kitman & Kitman is approved pursuant to s…

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Kitman and Kitman [2008] FamCAFC 166
Case
[2008] FamCAFC 166
Decision Date

CaseChat Overview and Summary

Kitman and Kitman was a case involving a dispute over a property settlement between the parties, who were husband and wife. The matter was heard in the Family Court of Australia. The wife appealed against the primary judge’s orders for property settlement, while the husband cross-appealed. The legal issues the court had to address included whether the primary judge erred in determining the respective entitlements of the parties to their superannuation interests and whether the wife was entitled to a greater percentage of the husband’s superannuation.

The court allowed both the wife’s appeal and the husband’s cross appeal. The primary judge had incorrectly calculated the wife’s entitlement to the husband’s superannuation. The court determined that the wife was entitled to 70 percent of the parties' assets excluding the husband’s interest in MSBS Superannuation, and 35 percent of the husband’s MSBS Superannuation. The court further ordered that the husband pay a sum of money to achieve this division and that the wife receive 35 percent of any future superannuation payments to the husband. The court's decision led to the variation of the orders made on 19 March 2008, specifically discharging certain paragraphs and substituting others to reflect the new property settlement arrangement.

Orders

Orders of the court

1.

The appeal be allowed.

2.

The orders contained in paragraphs 8 and 9 of the orders made on 19 March 2008 be discharged.

3.

The cross appeal be allowed.

4.

The orders contained in paragraph 6 be varied so that the following orders be substituted:

6. That by way of property settlement the wife receive:

(a) 70 percent (70%) of the assets of the parties excluding the husband’s interest in MSBS Superannuation; and

(b) 35 percent (35%) of the husband’s MSBS Superannuation.

(c) To achieve this division:

(i) The husband pay the further sum of $16,834.54 necessary to satisfy paragraph 6 (a) within 28 days of today.

(vii) In accordance with section 90MT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90ME of the Act becomes payable to or on behalf of [MR KITMAN] from his interest in the Military Superannuation Benefit Scheme (MSBS), [MRS KITMAN] is entitled to be paid (by the trustees of the MSBS) thirty five percent (35%) of the splittable payment and there shall be a corresponding reduction in the amount [MR KITMAN] would be entitled to receive but for these orders.

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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