FAMILY COURT OF AUSTRALIA
| GAETANO & GAETANO | [2017] FamCA 95 |
| FAMILY LAW – CHILDREN – Interim issue as to schooling – Consideration of – children’s views – Discussion as to general principles – Where no interim change as to children’s schooling appropriate in the present circumstances – Where schooling issue appropriate for determination at final hearing FAMILY LAW – SPOUSAL MAINTENANCE – Interim – Whether mother entitled to spousal maintenance – Whether father has capacity to pay – Where application for interim spouse maintenance dismissed FAMILY LAW – PROPERTY – Interim – Whether interim orders sought are appropriate – Where father disposed of various properties with no evidence as to how funds were disbursed – Should the parties’ rights and interests be altered – Where no evidence as to available source of funds to meet interim property order – Where interim property application dismissed |
| Family Law Act 1975 (Cth) 65D, 72, 75(2), 79, 80(1)(h) |
| Harris & Harris (1993) FLC 92-378 Kirkland and Granger [2007] FamCA 1471 Raymond and Harold [2009] FamCA 155 Re G: Children’s Schooling [2000] FamCA 462 Strahan & Strahan [2009] FamCAFC 166 |
| APPLICANT: | Ms Gaetano |
| RESPONDENT: | Mr Gaetano |
| FILE NUMBER: | PAC | 2034 | of | 2016 |
| DATE DELIVERED: | 24 February 2017 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 16 January 2017 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr Layson of Sarah Bevan Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Druitt |
| SOLICITOR FOR THE RESPONDENT: | Forsters Solicitors |
Orders
That the mother be permitted to continue the attendance of the children of the marriage at B School provided always that she pay the school fees for the children as due and payable and as and from the commencement of school Term 1 2017 she, pending further order, indemnify the father from liability for such fees.
That the mother’s application for interim spouse maintenance be dismissed.
That the mother’s application for interim property provision be dismissed.
That the father pay as they fall due and payable mortgage payments, Council and Water rates and insurances on the property at 1 - 2 C Street, Suburb D and pay as they fall due and payable mortgage payments in relation to the property at 3 C Street, Suburb D and in the event of the father’s non-compliance with this order the mother shall have leave to apply for the sale of the property at 1 - 2 C Street, Suburb D.
Otherwise all interim applications are 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 Gaetano & Gaetano 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…
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- GAETANO & GAETANO [2017] FamCA 95
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- [2017] FamCA 95
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CaseChat Overview and Summary
The court was required to determine whether interim orders were appropriate regarding the children's schooling, the mother's entitlement to interim spousal maintenance, and the alteration of the parties' rights and interests in property on an interim basis.
Regarding the children's schooling, the court found that no interim change was appropriate in the present circumstances, deeming the issue suitable for determination at the final hearing. The application for interim spousal maintenance was dismissed, with the court finding no evidence of the father's capacity to pay. Similarly, the application for interim property provision was dismissed due to a lack of evidence regarding the available source of funds to meet any such order, particularly in light of the father's disposal of properties without accounting for the funds.
The court ordered that the mother be permitted to continue the children's attendance at B School, provided she paid the school fees and indemnified the father from liability for them from the commencement of school term 1, 2017. The father was ordered to pay mortgage payments, rates, and insurances on two properties, with the mother having leave to apply for the sale of one property in the event of the father's non-compliance. All other interim applications were dismissed.
Orders
Orders of the court
1.
That the mother be permitted to continue the attendance of the children of the marriage at B School provided always that she pay the school fees for the children as due and payable and as and from the commencement of school Term 1 2017 she, pending further order, indemnify the father from liability for such fees.
2.
That the mother’s application for interim spouse maintenance be dismissed.
3.
That the mother’s application for interim property provision be dismissed.
4.
That the father pay as they fall due and payable mortgage payments, Council and Water rates and insurances on the property at 1 - 2 C Street, Suburb D and pay as they fall due and payable mortgage payments in relation to the property at 3 C Street, Suburb D and in the event of the father’s non-compliance with this order the mother shall have leave to apply for the sale of the property at 1 - 2 C Street, Suburb D.
5.
Otherwise all interim applications are 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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