FAMILY COURT OF AUSTRALIA
| GAMAGE & GAMAGE | [2017] FamCA 742 |
| FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where the wife sought orders for the exclusive occupation of the former matrimonial home – Where the wife sought injunctions in respect to her personal space and personal protection – Court finds no proper basis for those orders to be made in the absence of evidence of the husband engaging in threatening, intimidatory or other inappropriate conduct – Where the husband sought that the former matrimonial property be sold – Where the Court rejects that application in these interim proceedings. FAMILY LAW – SPOUSAL MAINTENANCE – INTERIM PROCEEDINGS – Where the wife sought orders for urgent spousal maintenance and interim spousal maintenance – consideration of section 75(2) factors – Court finds that the wife is unable to adequately support herself on her current limited income – Court finds that the husband has the capacity to pay periodic spousal maintenance in the sum of $163 – Orders for the husband to continue paying the mortgage in respect to the former matrimonial home to the amount of $1136 per week and for the husband to continue paying outgoings in respect to the former matrimonial home in the amount of $150 per week. |
FAMILY LAW – CHILDREN – INTERIM PROCEEDINGS – Where there are three children of the parties’ marriage – Where the youngest two children attend state schools and the eldest child attends a private school – Where the father sought orders for the eldest child to be removed from private school and enrolled in state school – Where the child’s treating psychologist recommended against enrolling the child in private school – Court finds that it is not in the child’s best interests to be removed from private school and enrolled in state school.
| Family Law Act 1975 (Cth) ss 43(1), 60B, 60CA, 60CC, 68B, 68F, 68E, 72(1), 74(1), 75(2), 77 |
| Ashton & Ashton (1982) 8 Fam LR 675 |
| APPLICANT: | Ms Gamage |
| RESPONDENT: | Mr Gamage |
| FILE NUMBER: | SYC | 4553 | Of | 2017 |
| DATE DELIVERED: | 22 September 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 21 August 2017 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Suburb B & Barry Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr… |
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- AGLC
- GAMAGE & GAMAGE [2017] FamCA 742
- Case
- [2017] FamCA 742
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether to grant the wife exclusive occupation of the former matrimonial home and personal protection injunctions, whether to order the sale of the former matrimonial property, and whether to make orders for interim spousal maintenance. The court was required to assess the evidence presented by both parties in relation to these applications.
McClelland J found no proper basis for the wife's applications for exclusive occupation and personal protection injunctions, as there was no evidence of threatening, intimidating, or inappropriate conduct by the husband. Consequently, the husband's application for the sale of the former matrimonial property was also rejected in these interim proceedings. Regarding spousal maintenance, the court considered the section 75(2) factors and determined that the wife was unable to adequately support herself on her current limited income. The court found the husband had the capacity to pay periodic spousal maintenance.
The court ordered that pending further order, the husband was to meet mortgage payments for the former matrimonial home to the extent of $1136 per week averaged over 12 months, and to pay outgoings for the property, including rates and insurance, to the extent of $150 per week averaged over 12 months. The husband was also restrained from dealing with his interest in the former matrimonial home or another specified property without giving the wife 14 days' notice. Furthermore, the husband was ordered to pay the wife $163 per week by way of periodic spousal maintenance. The court also made detailed orders concerning the process for further disclosure of documents between the parties.
Orders
Orders of the court
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.
The Husband shall do all acts and things and sign all documents necessary to meet all mortgage payments in respect of the property at B Street, Suburb B (“the Suburb B Property”) and any loan secured by that mortgage to the extent of $1136 per week averaged over a 12 month period.
2.
The Husband shall be restrained by injunction from doing any act or thing to sell, assign, encumber, and transfer or otherwise deal with his interest in either the Suburb B property or the property located at D Street, Suburb E without giving the Wife not less than 14 days’ notice of his intention.
3.
The Husband shall do all acts and things and sign all documents necessary to meet the outgoings in respect of the Suburb B property, including but not limited to council rates, water rates, electricity and/or gas charges and all insurances to the extent of $150 per week averaged over a 12 month period.
4.
Pursuant to sections 72 and 74 of the Act, the Husband forthwith pay to the Wife by way of periodic spouse maintenance the sum of $163 per week.
5.
In the event that either party seeks further disclosure from the other, then, within 14 days of the date of these orders, that party shall serve on the other party’s legal representative a request, in writing, in which the party nominates the specified document(s) or class of documents that he or she seeks to be disclosed.
6.
The party receiving the request for further disclosure pursuant to Order (5) above must, within 21 days after receiving notice, serve on the requesting party a list of documents identifying:
(a) The document(s) in that party’s possession that are within the class of documents sought by the other party;
(b) The document(s) no longer in the disclosing party’s possession or control with a brief statement about the circumstances in which the document(s) left the party’s possession or control; and
(c) The document(s) for which privilege from production is claimed.
7.
Within 14 days of receiving the list of documents referred to in Order (6) above, the requesting party must, in writing, ask the disclosing party to:
(a) Produce the document(s) for inspection; or
(b) Provide a copy of the document(s).
8.
The disclosing party must within 14 days after receiving a request pursuant to order (7), give the requesting party, at the requesting party’s expense, the copies requested, other than copies of document(s):
(a) In relation to which privilege from production is claimed; or
(b) That are no longer in the disclosing party’s possession or control.
9.
In the event that a party disputes an assertion as to the non-existence or non-possession of a document or documents, or disputes a claim for privilege, that party must, within 28 days of receipt of the list of documents referred to in Order (6) file and serve an Application pursuant to Rule 13.22 of the Family Law Rules 2004 (Cth) supported by an affidavit addressing those matters set out in Rule 13.22(3) and any other relevant matter.
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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