FAMILY COURT OF AUSTRALIA
| LEPANTO & LEPANTO | [2018] FamCA 791 |
| FAMILY LAW – PROPERTY – Undefended final hearing – Where the husband has failed to participate in proceedings – Where the husband has not made full and frank disclosure – Where the husband’s contributions to property is found to be slightly higher than the wife’s – Where the husband’s failure to disclose warrants a robust consideration by the Court of the wife’s entitlement – Where the wife is unable to obtain full time employment due to mental health – Where the wife is appointed Trustee for Sale of the matrimonial home – Where the proceeds of sale of the matrimonial home be retained by the wife. FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife unable to support herself adequately by reason of her health circumstances – Where the husband has capacity to support the wife – Where appropriate that order for spousal maintenance be made for a closed period. |
| Family Law Act 1975 (Cth) ss 72, 75, 79 Family Law Rules 2004 (Cth) r 16.07 |
| Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Bevan & Bevan [2014] FamCAFC 19 Black and Kellner (1992) FLC 92-287 Chang & Su [2002] FamCA 156 Chapman & Chapman [2014] FamCAFC 91 Jarrah & Fadel [2014] FamCAFC 14 Kannis and Kannis (2003) FLC 93-135 Mezzacappa & Mezzacappa [1987] FamCA 20 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Shaw & Shaw [2014] FamCAFC 146 Stanford & Stanford [2012] HCA 52 Stein & Stein [1986] FamCA 27 Tate & Tate [2000] FamCA 1040 Teal & Teal [2010] FamCAFC 120 Weir & Weir (1993) FLC 92-338 |
| APPLICANT: | Ms Lepanto |
| RESPONDENT: | Mr Lepanto |
| FILE NUMBER: | PAC | 398 | of | 2016 |
| DATE DELIVERED: | 4 October 2018 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 14 September 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Cheryl Orr Family Law |
| RESPONDENT – SELF-REPRESENTED LITIGANT: | No Appearance |
Orders
That the husband pay by way of spousal maintenance for the wife the sum of $500.00 per week for a period of 104 weeks from the date of these orders first payment within seven days payable to the wife or as she may otherwise direct the husband in writing.
That the wife, Ms Lepanto, is by reason of this order appointed Trustee for Sale of the real estate property situate at B Street, Suburb C being the whole of the land comprised in Folio identifier … and for such purpose the said property shall vest in the wife as trustee for sale for the purpose of the wife obtaining vacant possession thereof and selling the said property at the best price reasonably obtainable and by such method of sale as she may reasonably determine with the net proceeds of sale to be disbursed as follows:
(a)in payment of agents commission, advertising expenses and legal expenses of sale;
(b)in payment of all amounts necessary to discharge outstanding council and water rates and utilities…
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- AGLC
- LEPANTO & LEPANTO [2018] FamCA 791
- Case
- [2018] FamCA 791
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate division of the matrimonial property, taking into account the husband's failure to disclose, and to assess the wife's entitlement to spousal maintenance. Specifically, the court had to consider the husband's contributions, which were found to be slightly higher than the wife's, and how the husband's non-disclosure should impact the property orders. The court also needed to ascertain if the wife was unable to adequately support herself due to her health and if the husband had the capacity to provide such support.
Foster J reasoned that the husband's failure to disclose warranted a robust consideration of the wife's entitlement to the property. The court found that the wife was unable to support herself adequately due to her health and that the husband had the capacity to support her. Consequently, the court ordered the husband to pay spousal maintenance of $500 per week for a closed period of 104 weeks. The wife was appointed Trustee for Sale of the matrimonial home, with the net proceeds of sale to be disbursed first for sale expenses, rates, and the discharge of the mortgage, with the remaining balance to be paid to the wife. The husband was also ordered to pay all outgoings and mortgage payments for the property until settlement and to indemnify the wife against any arrears.
Orders
Orders of the court
1.
That the husband pay by way of spousal maintenance for the wife the sum of $500.00 per week for a period of 104 weeks from the date of these orders first payment within seven days payable to the wife or as she may otherwise direct the husband in writing.
2.
That the wife, Ms Lepanto, is by reason of this order appointed Trustee for Sale of the real estate property situate at B Street, Suburb C being the whole of the land comprised in Folio identifier … and for such purpose the said property shall vest in the wife as trustee for sale for the purpose of the wife obtaining vacant possession thereof and selling the said property at the best price reasonably obtainable and by such method of sale as she may reasonably determine with the net proceeds of sale to be disbursed as follows:
(a) in payment of agents commission, advertising expenses and legal expenses of sale;
(b) in payment of all amounts necessary to discharge outstanding council and water rates and utilities in respect of the said property and any other adjustments as required pursuant to the usual contract for sale;
(c) in discharge of the mortgage encumbrances presently secured over the said property in favour of the National Australia Bank;
(d) in payment of the balance then remaining to the wife.
3.
That the husband pay as they fall due and payable all council and water rates and utilities in respect of the Suburb C property and all mortgage payments including both capital and interest payments as they fall due and payable in respect of the said property and indemnify the wife in respect of any arrears of such payments as at the date of settlement of the sale of the property.
4.
That any application for costs of and incidental to these proceedings for property adjustment be made by way of written submission with such submission to be filed and served within one month from the date of these orders and any submissions in response to be filed and served within a further 14 days thereafter and upon receipt of submissions judgment as to costs is reserved to chambers.
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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