FAMILY LAW – De facto property division – Where de facto husband alleges he does not discuss business with his current wife – Allegations the transfer of the business names out of the de facto husband’s name shortly prior to trial was done to defeat property claim – Where de facto husband is contracted to current wife’s business – Current wife billed husband a management fee of $130,000 – Where ownership of the businesses is a sham – De facto husband’s failure to disclose – Neither estimate of value of real property is reliable evidence – Debt to de facto wife’s parents – Debt from liquidated business – Sum remaining due to mortgagee sale – De facto husband prevented de facto wife from maintaining property – Addback – De facto husband unimpressive witness – Future needs consideration.
Legislation:
Family Law Act 1975 (Cth) Part VIIIAB ss 90AE, 90SF, 90SM, 90SL, 90TA
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS RAISNER
Applicant
AND:
MR KELLS
Respondent
order made by:
JUDGE COPE
DATE OF ORDER:
4 May 2023
THE COURT ORDERS THAT:
1.For the purpose of these orders IT IS DECLARED THAT:
(a)the parties’ matrimonial assets, liabilities and financial resources are as set out in “Annexure A” hereto;
(b)the assets, liabilities and financial resources are valued as stated…
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.
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Details
AGLC
Raisner & Kells [2023] FedCFamC2F 265
Case
[2023] FedCFamC2F 265
Decision Date
CaseChat Overview and Summary
The case of Raisner & Kells was heard in the Federal Circuit and Family Court of Australia (Division 2). The parties, Ms Raisner (the applicant) and Mr Kells (the respondent), were in a de facto relationship for almost 11 years and have two children together. The court was required to determine the asset pool, values of assets and liabilities, contributions made by each party, and future needs of the parties. The court also had to decide what property, cash, or superannuation should change hands in order to give effect to the court's determination. The applicant sought a 70:30 division of the asset pool in her favour, while the respondent sought a 50:50 division.
The court found that the respondent had not made full and frank disclosure and that his evidence was unsatisfactory and unbelievable. The court preferred the applicant's evidence over the respondent's in cases of contradiction. The court found that the respondent was the primary financial contributor during the relationship and that the applicant was the primary carer for the children. The court also found that the respondent had deliberately reduced the asset pool, minimised his income and assets, and avoided making full disclosure.
The court determined the asset pool and values of assets and liabilities based on the evidence presented. It found that the applicant was entitled to an additional 15% for future needs, resulting in a 70:30 division of the asset pool in her favour. The court ordered that the respondent transfer the C Street property to the applicant, pay her a cash payout, and be solely responsible for certain debts. The applicant would retain her car, bank accounts, superannuation, and household items. The respondent would retain his business interests, car, bank accounts, household items, motorcycle, and superannuation.
The court's orders ensured a just and equitable outcome, taking into account the findings made and the needs of the parties. The orders also included provisions to facilitate a smooth transition and address potential defaults.