KK and KG - [2003] FMCAfam 609

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KK & KG

[2003] FMCAfam 609

FAMILY LAW – Property settlement – husband in gaol and aware of proceedings but elects to take no part in them – serious domestic violence in marriage – domestic violence made wife’s contributions significantly more arduous than they ought to have been – reference to principles in Kennon (1997) FLC 92-757 – husband has no contact with children – impact of s.75(2) factors.

Family Law Act1975

Pastrikos (1980) FLC 90-897
Lee-Steere (1985) FLC 91‑626
Ferraro (1993) FLC 92-335
Davut & Raif (1994) FLC 503
Clauson (1995) FLC 92-595
Whitely (1996) FLC 92-684
Norbis (1986) FLC 91-712
McMahon (1995) FLC 92-606
W v W (1986) FamLR 538
Henderson (1987) FamLR 529
Russell (1999) FLC 92-877
JEL v DDF (2000) 28 FamLR 1
Phillips (2002) 29 FamLR 128
Figgins (2002) FLC 93-122
Kennon (1997) FLC 92-757
C v C (1998) FLC 92-824
JEL v DEF (2001) FLC 93-075

Waters v Jurek (1995) FLC 92-635

Applicant:

Respondent:

File No:

MLM 1686 of 2003

Delivered on:

27 November 2003

Delivered at:

Melbourne

Hearing Date:

27 November 2003

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr P. Cronin

Solicitors for the Applicant:

Mahonys

Counsel for the Respondent:

undefended

Solicitors for the Respondent:

Maria Barbayannis & Co

ORDERS

The husband forthwith do all such acts and things and sign all necessary documents (“the Transfer Documents”) to transfer to the wife, on a trust for sale (in accordance with paragraphs 3 and 4 below), all of his right, title and interest in the real property at 108 Lord Street, Richmond, being the land in Certificate of Title, Volume 10201 Folio 472 (“Lord Street”).
Notwithstanding the provisions of paragraph 1 above, and the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975 as amended, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia at Melbourne be forthwith appointed to execute the Transfer Documents in the name of the husband and do all acts and things necessary to give validity and operation to the transfer and the Transfer Documents.
Lord Street be sold as soon as possible, and the wife have the conduct of the sale.
The net proceeds of the sale be divided as follows:
(a)to pay any costs, commissions and expenses of the sale;
(b)to pay unpaid rates or outgoings in respect to Lord Street;
(c)to pay to the wife 82.5% of the balance; and
(d)to pay to the husband any sum remaining thereafter.
The children of the marriage M and K reside with the wife.
The wife be solely responsible for the long term and day to day care, welfare and development of the said children.
The wife’s application for property settlement be otherwise dismissed, and her application for spousal maintenance be adjourned sine die.
The proceedings be removed from the list of cases awaiting final determination.
Pursuant to s.65DA(2) of the Family Law Act

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 KK and KG

Details

AGLC: KK and KG [2003] FMCAfam 609
Case: [2003] FMCAfam 609
Decision Date: 27 November 2003

CaseChat Overview and Summary

The parties to this case, KK and KG, were married and have two children, M and K. The wife, KK, sought a property settlement and spousal maintenance from the husband, KG. The dispute involved the distribution of the matrimonial home located at 108 Lord Street, Richmond, and the financial obligations of the husband towards the wife and children post-separation. The court that presided over this matter was the Federal Magistrates Court of Australia. The primary legal issues that the court needed to address were the division of the matrimonial property, the sale of the marital home, and the allocation of the sale proceeds, as well as the care and welfare of the children. Additionally, the court had to consider the wife's application for spousal maintenance.

The court ruled that the husband must transfer his interest in the marital home to the wife, who would then sell the property under trust for sale. Given the need to ensure the execution of the transfer, the court appointed a registrar or deputy registrar of the Federal Magistrates Court to execute the necessary documents on behalf of the husband. The net proceeds of the sale were to be divided among various expenses and then allocated between the wife and the husband, with the wife receiving a larger portion. The court also ordered that the children reside with the wife, who would be responsible for their long-term and day-to-day care, welfare, and development. The wife's application for property settlement was dismissed, while her application for spousal maintenance was adjourned indefinitely. Finally, the proceedings were removed from the list of cases awaiting final determination.

The court's decision was based on the need to provide for the children's welfare and to ensure an equitable division of the matrimonial assets. The orders reflect the court's consideration of the wife's financial needs and the husband's ability to contribute to those needs, as well as the children's best interests. The court emphasised the importance of the wife's role in the children's care and development and provided for the sale of the marital home to facilitate the division of assets. The court's decision was detailed in Annexure A, which outlined the obligations created by the orders and the potential consequences of non-compliance.

Orders

Orders of the court

The husband forthwith do all such acts and things and sign all necessary documents (“the Transfer Documents”) to transfer to the wife, on a trust for sale (in accordance with paragraphs 3 and 4 below), all of his right, title and interest in the real property at 108 Lord Street, Richmond, being the land in Certificate of Title, Volume 10201 Folio 472 (“Lord Street”).

Notwithstanding the provisions of paragraph 1 above, and the Court considering it necessary to exercise the powers of the Court under Section 106A(1) of the Family Law Act 1975 as amended, a Registrar or Deputy Registrar of the Federal Magistrates Court of Australia at Melbourne be forthwith appointed to execute the Transfer Documents in the name of the husband and do all acts and things necessary to give validity and operation to the transfer and the Transfer Documents.

Lord Street be sold as soon as possible, and the wife have the conduct of the sale.

The net proceeds of the sale be divided as follows:

(a) to pay any costs, commissions and expenses of the sale;

(b) to pay unpaid rates or outgoings in respect to Lord Street;

(d) to pay to the husband any sum remaining thereafter.

The children of the marriage M and K reside with the wife.

The wife be solely responsible for the long term and day to day care, welfare and development of the said children.

The wife’s application for property settlement be otherwise dismissed, and her application for spousal maintenance be adjourned sine die.

The proceedings be removed from the list of cases awaiting final determination.

Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in 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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