GAETANO & GAETANO - [2017] FamCA 95

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

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…

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 GAETANO & GAETANO

Details

AGLC: GAETANO & GAETANO [2017] FamCA 95
Case: [2017] FamCA 95
Decision Date: 24 February 2017

CaseChat Overview and Summary

In the matter of *Gaetano & Gaetano*, Foster J considered interim applications concerning the children's schooling, spousal maintenance, and property provision. The mother sought to continue the children's attendance at B School, requested interim spousal maintenance, and sought interim property orders. The father had disposed of various properties without providing evidence of the disbursement of funds.

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

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.

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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