Robane & Kalda (No 2) - [2022] FedCFamC2F 711

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Robane & Kalda (No 2) [2022] FedCFamC2F 711

File number(s): ADC 166 of 2021

Judgment of: JUDGE DICKSON

Date of judgment: 24 May 2022

Catchwords: FAMILY LAW – Property – 21 year de facto relationship – de facto wife’s application for property settlement – where de facto husband has failed to engage in the proceedings – leave granted to proceed undefended - nature of an undefended hearing – consideration of contributions and future needs – where contributions during the relationship were equal – where de facto wife’s post separation contributions and future needs are greater than those of the de facto husbands – where de facto wife has incurred legal fees due to the de facto husband’s failure to engage in the proceedings - where it is just and equitable for the wife to receive an adjustment in her favour on account of those factors – where Court declines to make the personal protection orders as sought by the de facto wife in a property Trial

Legislation:
Family Law Act 1975 (Cth) Pt VIIIAB ss 90SF, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 10.6, rr 10.26, 10.27

Cases cited:
Jabour & Jabour [2019] FamCAFC 78

Ragusa & Ragusa [2021] FedCFamC2F 470

Stanford & Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 84

Date of last submission/s: 24 May 2022

Date of hearing: 23-24 May 2022

Place: Adelaide

Counsel for the Applicant: Ms Miller

Solicitor for the Applicant: Tindall Gask Bentley

The Respondent: No appearance
ORDERS

ADC 166 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ROBANE

Applicant

AND:
MR KALDA

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

24 MAY 2022

THE COURT ORDERS THAT:
1.The net proceeds of sale of the former matrimonial home situate B Street, Suburb C in the amount of $504,743.51 currently held in the trust account of Aaron Conveyancing be applied in the following manner and priority:
(a)As to the Applicant by payment to Tindall Gask Bentley Trust Account for and on behalf of the Applicant, the sum of FOUR HUNDRED AND FORTY NINE THOUSAND THREE HUNDRED AND SEVENTY NINE DOLLARS ($449,379.00);
(b)As to the balance to the Respondent.

KALDA FAMILY TRUST
2.The Applicant do all things and execute all documents necessary to:
(a)Transfer her interest in the Kalda Family Trust (“the Trust”) to the Respondent;
(b)Give effect if deemed necessary by the Respondent in his sole discretion, the Applicant’s removal as a beneficiary and/or member of the class of beneficiaries of the Trust;
(c)Forgive, waive or assign to the Respondent or to such other person as the Respondent may require any monies standing to her credit or debit in any loan account in the Trust and relinquish any other claim or entitlements whatsoever as she may have in relation to any assets of the Trust to the intent and the effect that the assets of the Trust…

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 Robane & Kalda (No 2)

Details

AGLC: Robane & Kalda (No 2) [2022] FedCFamC2F 711
Case: [2022] FedCFamC2F 711
Decision Date

CaseChat Overview and Summary

This case involved a property settlement application by a de facto wife following the breakdown of a 21-year relationship. The respondent de facto husband did not engage in the proceedings, leading the Court to grant the applicant leave to proceed on an undefended basis. The legal issues included determining the weight of the parties' financial and non-financial contributions, their future needs, and the overall percentage division of the gross asset pool. The Court found that the parties' contributions during the relationship were roughly equal, but the de facto wife's post-separation contributions and future needs were greater than the de facto husband's. The Court also considered the de facto wife's incurred legal fees due to the de facto husband's lack of engagement as a factor of justice and equity. The Court ordered that the net proceeds from the sale of the former matrimonial home be divided 60% to the de facto wife and 40% to the de facto husband. The de facto wife was also awarded certain personal property, while the de facto husband retained other specified assets. The Court declined to make the personal protection orders sought by the de facto wife.

Orders