FAMILY COURT OF AUSTRALIA
| SABELL & MEDHURST (NO 2) | [2011] FamCA 596 |
| FAMILY LAW - PROPERTY SETTLEMENT – whether promissory estoppel arises in relation to occupancy of property – valuation of real property interests – assessment of contributions – assessment of s 75(2) matters – just and equitable orders FAMILY LAW - SPOUSE MAINTENANCE – threshold issue – assessment of quantum FAMILY LAW - DEPARTURE CHILD SUPPORT ASSESSMENT – whether ground established to incur liability for private school fees. |
| Family Law Act 1975 (Cth) |
| Chorn v Hopkins (2007) FLC 93-317; Harrington v Harrington (2004) FLC 93-204; |
| APPLICANT: | Mr Sabell |
| RESPONDENT: | Ms Medhurst |
| FILE NUMBER: | SYC | 3944 | of | 2009 |
| DATE DELIVERED: | 30 June 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rose J |
| HEARING DATES: | 24-25 & 27 May 2011; 9 June 2011; 10 June 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | G Johnston |
| SOLICITOR FOR THE APPLICANT: | Hazan Hollander |
| COUNSEL FOR THE RESPONDENT: | T Kirk SC |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan Kelly |
Orders
Property settlement
That on or before the expiration of 90 days from today the wife shall do all acts and things and sign all documents as may be necessary to:
(a)obtain the mortgagor’s consent to the transfer by the husband to the wife of the husband’s right title and interest in the property situate at and known as … W Street, Sydney Suburb 2 in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the home”) and the wife shall indemnify and keep indemnified the husband from and against all liability under the home loan; or
(b)failing the mortgagor’s consent the wife shall effect a discharge of the home loan and provide a copy of the discharge of mortgage to the husband;
(c)pay to the husband the sum of $25,872.00.
That upon the wife complying with Order 1 the husband shall do all things and sign all documents as may be necessary to transfer to the wife all of his right, title and interest in the home subject to the home loan and pending the transfer the husband pay all instalments payable under the home loan as and when the same fall due.
That subject to compliance by the husband of Order 2 the wife shall do all acts and things and sign all documents as may be necessary to transfer to the husband all her right, title and interest in the property situate at and known as Unit …, … B Street, Sydney Suburb 3 in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the Sydney…
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- Sabell and Medhurst (No 2) [2011] FamCA 596
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- [2011] FamCA 596
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CaseChat Overview and Summary
The court was required to determine the appropriate property settlement orders, including the valuation and division of real estate interests and the assessment of contributions and relevant s 75(2) factors. Additionally, the court had to address the threshold issue of spousal maintenance and assess its quantum. Finally, the court considered whether grounds were established to depart from administrative child support assessments, specifically in relation to the husband's liability for private school fees and other associated educational and medical expenses for the children.
Rose J made detailed orders regarding the property settlement, including the transfer of interests in the parties' home and a unit, and the division of personal property. The court ordered the husband to pay spousal maintenance to the wife at a rate of $550.00 per week for 12 months. In relation to child support, the court ordered a departure from the administrative assessment, requiring the husband to pay $400.00 per week, with annual adjustments for inflation. The husband was also ordered to pay the children's private school fees, associated educational costs, and private health insurance premiums and gap medical expenses. The court also made provisions for the Registrar to execute documents if a party failed to comply with the orders and reserved liberty to apply.
Orders
Orders of the court
Property settlement
1.
That on or before the expiration of 90 days from today the wife shall do all acts and things and sign all documents as may be necessary to:
(a) obtain the mortgagor’s consent to the transfer by the husband to the wife of the husband’s right title and interest in the property situate at and known as … W Street, Sydney Suburb 2 in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the home”) and the wife shall indemnify and keep indemnified the husband from and against all liability under the home loan; or
(b) failing the mortgagor’s consent the wife shall effect a discharge of the home loan and provide a copy of the discharge of mortgage to the husband;
(c) pay to the husband the sum of $25,872.00.
2.
That upon the wife complying with Order 1 the husband shall do all things and sign all documents as may be necessary to transfer to the wife all of his right, title and interest in the home subject to the home loan and pending the transfer the husband pay all instalments payable under the home loan as and when the same fall due.
3.
That subject to compliance by the husband of Order 2 the wife shall do all acts and things and sign all documents as may be necessary to transfer to the husband all her right, title and interest in the property situate at and known as Unit …, … B Street, Sydney Suburb 3 in the State of New South Wales being the whole of the land contained in Folio Identifier … (“the Sydney Suburb 3 Unit”) PROVIDED THAT the husband is solely responsible for all expenses arising as a consequence of the wife’s compliance with her obligations under this Order.
4.
That on or before 5.00 pm 14 July 2011 the husband sign all documents and do all acts and things as may be necessary for the purpose of transferring to the wife his interest in the following:
(a) The Subaru motor vehicle currently used by the wife.
(b) The parties’ Westpac joint account.
5.
Declare that subject to the Orders made this day and the delivery to the husband’s lawyer or as he may nominate the husband’s personal effects and other items which may be agreed upon within seven (7) days from today, each of the parties is beneficially entitled to all items of personalty in his or her possession respectively.
Spousal maintenance
6.
That the husband pay to the wife spousal maintenance at the rate of $550.00 per week for a period of 12 months from today and that payment be made by automatic transfer to such bank account as the wife may direct in writing, the first of such payments to be made on or before 5.00 pm 7 July 2011.
Departure child support assessment
7.
That by way of departure from the child support administrative assessments issued by the Child Support Agency from time to time for the two children of the marriage B born … March 2004 and S born … March 2007:
(a) The husband pay periodic child support to the wife in the sum of $400.00 per week and that payment be made by automatic transfer to such bank account as the wife may in writing direct, the first of such payments to be made on or before 5.00 pm 7 July 2011.
(b) The amount of child support payable by the husband pursuant to Order 7(a) shall be varied on 1 July (“the review date”) in each year commencing on 1 July 2012 to such sum as shall be determined by multiplying the child support being paid on the review date by the inflation factor (if any) applicable to each such child support year as prescribed by the Child Support (Assessment) Regulations.
8.
That the husband pay the following costs of the attendance by the two children at School 1 as and when such costs fall due:
(a) Tuition fees and levies.
(b) School required books and stationery.
(c) Sports activities and equipment.
(d) Computers.
(e) Musical instruments.
(f) Uniforms.
(g) Local extra curricular expenses.
9.
That the husband pay as and when they fall due costs of premiums for private health insurance for the children with the … health fund at its current level and any gap medical expenses including but not limited to medical, hospital, dental, orthodontic, physiotherapy, optometry and pharmaceutical costs and expenses not otherwise met by the private health fund.
10.
That the parties forthwith do all acts and things necessary to promptly cause a copy of these Orders to be lodged with the Child Support Agency.
11.
That on or before the end of Year 5 for each child the parties shall actively enquire about and consider all options for secondary education for the child including permitting the child to take part in such procedures available for entrance to a selective high school and they shall also jointly seek advice from an independent education consultant.
Other orders
12.
That in the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to these Orders then the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
13.
That each party has liberty to apply on seven (7) days written notice being given in respect of the implementation of any of these Orders.
14.
That all documents produced on subpoena may be returned to the person who produced the same.
15.
That subject to the Orders made this day all outstanding applications are dismissed save and except for any pending application for costs.
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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