Netis and Kippling - [2019] FamCA 363

FAMILY COURT OF AUSTRALIA

NETIS & KIPPLING

[2019] FamCA 363

FAMILY LAW – PROPERTY – Where dispute about the agreed property pool – Where one pool – Where the court satisfied the wife’s student loan should be taken into account at its full value – Where there has been significant wastage of funds by the husband post-separation – Where the court cannot determine amount of wastage by the husband to be added back in to the pool – s 75(2) factors – s 79 discretion – Where the husband has made a greater financial contribution to the current pool of assets – Where the wife has made greater non-financial contributions – Where the court is unable to determine the husband’s future earning capacity – Order that the husband authorise the release to the wife from the NN Trust account $80,000.00 and the balance of those funds be released to the husband – Order that the parties retain ownership of the assets presently in their possession, remain responsible for the liabilities in their name, and remain entitled to the superannuation in their name

Family Law Act 1975 (Cth) ss 75, 79

Netis & Kipling [2018] FamCA 703
Stanford v Stanford (2012) 247 CLR 108
Bevan & Bevan (2013) FLC 93-545
Omancini & Omancini (2005) FLC 93-218
Wilde & Wilde [2007] FamCA 1044
Aleksovski & Aleksovski [1996] FamCA 111
Perrin & Perrin(No 2) [2018] FamCAFC 122

APPLICANT:

Ms Netis

RESPONDENT:

Mr Kipling

FILE NUMBER:

TVC

809

2015

DATE DELIVERED:

5 June 2019

PLACE DELIVERED:

Cairns

PLACE HEARD:

Cairns via video link to Townsville

JUDGMENT OF:

Tree J

HEARING DATE:

7 and 8 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Smales

SOLICITORS FOR THE APPLICANT:

Roberts Nehmer McKee

COUNSEL FOR THE RESPONDENT:

Mr Raeburn

Orders

Within 7 days, the husband authorise the further payment to the wife of the sum of $80,000.00 from the funds held on his behalf by NN Legal.
Upon the payment of the $80,000.00 to the wife, the balance of the funds in the NN Legal Trust account be released to the husband.
Otherwise each party retain the assets presently in their possession, and superannuation in their name, and be responsible for the liabilities in their names.
Otherwise all applications for property adjustment be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Netis & Kipling has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: TVC809/2015

MS NETIS

Applicant

And

MR KIPLING

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

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 Netis and Kippling

Details

AGLC: Netis and Kippling [2019] FamCA 363
Case: [2019] FamCA 363
Decision Date: 5 June 2019

CaseChat Overview and Summary

The case of *Netis and Kippling* concerned a dispute between a husband and wife regarding the division of their property. The matter came before Tree J.

The primary legal issue before the court was how to distribute the remaining funds held in a trust account by NN Legal, and whether any further property adjustments should be made. The court was required to determine the appropriate allocation of these funds and the final disposition of the parties' respective assets and liabilities.

Tree J ordered that the husband authorise the payment of $80,000 from the NN Legal trust account to the wife within seven days. Upon this payment, the remaining balance in the trust account was to be released to the husband. The court further ordered that, apart from this payment, each party was to retain the assets and superannuation currently in their possession and be responsible for their own liabilities. Consequently, all other applications for property adjustment were dismissed.

Orders

Orders of the court

Within 7 days, the husband authorise the further payment to the wife of the sum of $80,000.00 from the funds held on his behalf by NN Legal.

Upon the payment of the $80,000.00 to the wife, the balance of the funds in the NN Legal Trust account be released to the husband.

Otherwise each party retain the assets presently in their possession, and superannuation in their name, and be responsible for the liabilities in their names.

Otherwise all applications for property adjustment be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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