SAMUEL & KARLSEN - [2018] FCCA 2541

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMUEL & KARLSEN

[2018] FCCA 2541

Catchwords:
FAMILY LAW – Parenting and property proceedings – parenting orders made by consent at trial – marriage of 16 years – two children of the marriage – equal contributions – modest asset pool – just and equitable for an adjustment of property interests – husband has capacity to engage in gainful employment – wife has responsibility for the care of the children – adjustment of property interests as to 65% in favour of the wife and 35% in favour of the husband.

Legislation:

Family Law Act 1975, ss. 75, 79, 81

Cases cited:

Dobbs & Dobbs [2018] FamCAFC 174

Forth & Hoddle [2008] FMCAfam 1318

H & T [2002] FMCAfam 209

Maybury & Maybury [2011] FMCAfam 540

Norbis v Norbis (1986) 161 CLR 513

Saleh & Saleh [2005] FMCAfam 133

Stanford and Stanford (2012) 247 CLR 108

Sutherland & Shriver [2012] FMCAfam 502

Applicant:

MS SAMUEL

Respondent:

MR KARLSEN

File Number:

MLC 10059 of 2017

Judgment of:

Judge A Kelly

Hearing dates:

20 & 21 August 2018

Date of Last Submission:

22 August 2018

Delivered at:

Melbourne

Delivered on:

12 September 2018

REPRESENTATION

Counsel for the Applicant:

Mr Allen

Solicitors for the Applicant:

Morgan Legal

The Respondent appeared in person.

ORDERS

By 4.00pm on Wednesday, 26 September 2018, the applicant file and serve a minute of proposed order to give effect to these Reasons for Judgment.
By 4.00pm on Wednesday, 17 October 2018, the respondent file and serve a brief submission not exceeding 3 pages indicating where he agrees or disagrees with the applicant’s minute of proposed order.
Subject to paragraph 4 of this Order, the proceeding be listed for mention on Monday, 10 December 2018, for the making of final orders.
The parties be at liberty to file orders which they agree give effect to these Reasons for Judgment.

IT IS NOTED that publication of this judgment under the pseudonym Samuel & Karlsen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10059 of 2017

MS SAMUEL

Applicant

And

MR KARLSEN

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain my conclusions respecting the parties’ claims for an adjustment of property interests made pursuant to s 79 of the Family Law Act 1975 (Cth) (Act).
In short, I have concluded that the parties’ asset pool should be adjusted such that 65% of those assets are allocated to the wife and 35% are allocated to the husband.

Background

The parties are of (omitted ethnicity). The applicant wife is aged 35 years and is in good health. The respondent husband is aged 45 years and is also in good health. Each of the parties have tertiary qualifications which they obtained in the course of their marriage. The wife holds a (qualifications omitted) while the husband holds a (qualifications omitted).
On 2001, the parties married in (country omitted). There was some dispute…

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: SAMUEL & KARLSEN [2018] FCCA 2541
Case: [2018] FCCA 2541
Decision Date: 12 September 2018

CaseChat Overview and Summary

In this matter before Judge A Kelly, the court considered parenting and property proceedings arising from a marriage of 16 years. The parties had two children, and parenting orders were made by consent at trial. The dispute primarily concerned the division of a modest asset pool, with the court needing to determine a just and equitable adjustment of property interests.

The central legal issues before the court were the appropriate division of the parties' property interests and the making of final parenting orders. Specifically, the court was required to assess the contributions of each party to the marriage and the asset pool, and to consider the future financial circumstances of each party, including the husband's capacity for gainful employment and the wife's ongoing responsibility for the care of the children.

The court found that the parties had made equal contributions to the marriage and the asset pool. However, considering the future needs of the parties, particularly the wife's role as the primary caregiver for the children, the court determined that an adjustment of property interests was just and equitable. Consequently, the court ordered an adjustment of 65% in favour of the wife and 35% in favour of the husband. The parties were directed to file minutes of proposed orders to give effect to these reasons, with a mention date set for the making of final orders.

Orders

Orders of the court

By 4.00pm on Wednesday, 26 September 2018, the applicant file and serve a minute of proposed order to give effect to these Reasons for Judgment.

By 4.00pm on Wednesday, 17 October 2018, the respondent file and serve a brief submission not exceeding 3 pages indicating where he agrees or disagrees with the applicant’s minute of proposed order.

Subject to paragraph 4 of this Order, the proceeding be listed for mention on Monday, 10 December 2018, for the making of final orders.

The parties be at liberty to file orders which they agree give effect to these Reasons for Judgment.

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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