LEPANTO & LEPANTO

Case [2018] FamCA 791


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

  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…

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AGLC
LEPANTO & LEPANTO [2018] FamCA 791
Case
[2018] FamCA 791
Decision Date

CaseChat Overview and Summary

In the matter of *Lepanto & Lepanto*, Foster J of the Family Court of Australia considered an undefended final hearing concerning property settlement and spousal maintenance. The husband failed to participate in the proceedings and did not make full and frank disclosure of his financial position. The wife, unable to secure full-time employment due to her health circumstances, sought orders for property adjustment and spousal maintenance.

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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