FAMILY COURT OF AUSTRALIA
| WARWICK & CUTLER AND ANOR | [2016] FamCA 934 |
| FAMILY LAW – CHILD SUPPORT - Application for departure orders – Where the orders sought by the husband would result in arrears currently owed being discharged – Where the husband sought orders that the wife be solely responsible for the children’s private school fees and health insurance – Where the Court is not satisfied the requirements of s 116(1)(b)(ii) of the Child Support (Assessment) Act 1989 (Cth) have been met – Application dismissed – Orders staying collection of arrears discharged. FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were in a relationship for approximately twelve years and have two children – Where all items in dispute on the balance sheet but one are considered in the context of s 75(2)(o) – Where the parties agreed for funds provided by the wife’s father to the parties to be re-paid – Whether the Court should consider any further contributions made on behalf of the wife by her father – Where the wife provided a significant direct financial contribution to the acquisition of the parties’ property – Where the Court finds there should be a distribution of the property pool fifty-five per cent in favour of the wife – Where the wife is to have primary care of the parties’ two children – Where the Court is satisfied an additional adjustment of five per cent in favour of the wife is appropriate. |
| Child Support (Assessment) Act 1989 (Cth) ss 116, 117 Family Law Act 1975 (Cth) ss 75(2), 79, |
Bevan & Bevan (2013) FLC 93-545
Bircher & Bircher and Anor [2016] FamCAFC 123
C & C [1998] FamCA 143
Edgehill & Edgehill [2007] FamCA 1102
Harris & Ellis [2011] FamCAFC 90
In the marriage of Gyselman and Gyselman (1992) FLC 92-279
In the marriage ofMee and Ferguson (1986) FLC 91-716
Mayne & Mayne (2011) FLC 93-479
Murphy & Murphy (Child support)[2016] AATA 2001
Omacini & Omacini [2005] FamCA 195
Petruski & Balewa (2013) 49 Fam LR 116
Saberton & Saberton [2013] FamCAFC 89
Seymour & Seymour [2011] FamCAFC 97
Stanford & Stanford (2012) 247 CLR 108
Turner & Turner and Anor (2016) FLC 93-719
Vass & Vass (2015) 53 Fam LR 373
Yewen & Child Support Registrar & Anor [2014] FCCA 2399
| APPLICANT: | Ms Warwick |
| RESPONDENT: | Mr Cutler |
| INTERVENOR: | Mr N Warwick |
| FILE NUMBER: | SYC | 1668 | of | 2013 |
| DATE DELIVERED: | 4 November 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | McClelland J |
| HEARING DATE: | 18 - 20 July 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Schonell SC |
| SOLICITOR FOR THE APPLICANT: | Diana Perla & Associates |
| COUNSEL FOR THE RESPONDENT: | Mr Dura |
| SOLICITOR FOR THE RESPONDENT: | M & K Lawyers |
| COUNSEL FOR THE INTERVENOR: | Mr Williams |
| SOLICITOR FOR THE INTERVENOR: | Karras Partners |
Orders
Child support
The wife’s child support departure application is withdrawn and dismissed.
The husband’s child support departure application is dismissed.
The orders made on 7 March 2016 are discharged.
The wife’s solicitors are to serve…
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- AGLC
- Warwick & Cutler [2016] FamCA 934
- Case
- [2016] FamCA 934
- Decision Date
CaseChat Overview and Summary
The court was required to determine two primary legal issues: the wife's and the husband's applications for departure from child support assessments, and the division of the parties' property, including the D Street property and various financial assets and liabilities.
McClelland J's reasoning, as reflected in the orders, indicates a dismissal of both child support departure applications, suggesting that the court found no grounds to deviate from the standard child support assessments. The court then proceeded to make detailed orders for the division of property. The wife was ordered to pay a significant sum to the husband, and upon compliance, the D Street property was to be transferred to her. The orders also stipulated the process for transferring the mortgage on the D Street property and a payment to Mr N Warwick. Crucially, the orders established a clear mechanism for the sale of the D Street property and the distribution of proceeds in the event the wife failed to make the required payment, prioritising loan repayments, sale costs, payments to Mr N Warwick, and then distributing the balance between the parties. The remaining assets and liabilities were divided between the parties, with specific items retained by each, and a general provision for each party to retain other property not specifically mentioned, along with an indemnity for liabilities. The court also included a provision for a Registrar to execute documents if a party defaulted.
Orders
Orders of the court
Child support
1.
The wife’s child support departure application is withdrawn and dismissed.
2.
The husband’s child support departure application is dismissed.
3.
The orders made on 7 March 2016 are discharged.
4.
The wife’s solicitors are to serve the Child Support Registrar with a copy of these Orders within seven (7) days of the date of these Orders.
Property
5.
Within twenty-eight (28) dates of the date of these Orders, the wife is to pay to the husband, or as he may direct in writing, the sum of $638 529.35.
6.
Upon the wife complying with Order (5), the husband is to do all acts and things and sign all documents necessary to transfer to the wife the property situated at and known as D Street, Suburb E, being the whole of the property comprised in Certificate of Title Folio Identifier … (“the D Street property”).
7.
Upon the husband complying with Order (6):
(a) the parties are to do all acts and things and sign all documents to transfer the National Australia Bank mortgage secured over the D Street property into the wife’s sole name; and
(b) the wife is to pay the sum of $1 300 000 to Mr N Warwick pursuant to Order 2.1 of the consent orders made on 18 July 2016.
8.
In the event that the wife fails to comply with Order (5):
(a) Within fourteen (14) days of the wife’s failure to comply, the parties are to do all acts and execute all documents necessary to cause the D Street property to be listed for sale by private treaty.
(b) The sale of the D Street property is to be conducted as follows:
i. The sales agent acting on the sale is to be agreed between the parties and failing agreement, the sales agent is to be appointed by a nominee of the President of the Real Estate Institute (NSW);
ii. The solicitor acting on the sale is to be agreed between the parties and failing agreement, the solicitor is to be appointed by a nominee of the President of the NSW Law Society;
iii. The sale price is to be not less than $3.1 million, or as otherwise agreed in writing between the parties.
(c) Upon completion of the sale of the D Street property, the parties are to do all acts and execute all documents necessary to cause the proceeds of sale to be distributed in the following manner and priority:
i. In payment of the costs associated with the discharge of any loan(s) to the parties from the National Australia Bank secured by mortgage over the D Street property;
ii. In payment of the agent’s fees and commission relating to the sale;
iii. In payment of the legal costs relating to the sale;
iv. In payment of the sum of $1 030 000 to Mr N Warwick in compliance with Order 2.2 of the consent orders made on 18 July 2016;
v. Sixty per cent of the balance to the wife;
vi. The remainder of the balance to the husband.
(d) Pending completion of the sale of the D Street property;
i. The wife is to pay for all council rates, water charges, utility bills, insurances and any outgoings for the D Street property;
ii. The wife is to do all things to comply with all reasonable requests made by the agent for access to the D Street property;
iii. The wife is to comply with any reasonable request to maintain the property in a neat and tidy manner for the marketing of the property.
9.
Within twenty-eight (28) days of the date of these Orders, the parties are to do all acts and things and sign all documents to divide the funds contained in the NAB account ending #... equally between them.
10.
Otherwise, the wife is to retain the following:
(a) German motor vehicle registration number …;
(b) NAB bank account ending #...;
(c) Bankwest account ending #...;
(d) Household contents in the wife’s possession;
(e) The wife’s jewellery;
(f) Her F Accountants UK account; and
(g) Interest in her Sun Super Superannuation Fund.
11.
Otherwise, the husband is to retain the following:
(a) His shares in G Ltd;
(b) Motor vehicle registration number …;
(c) Household contents in the husband’s possession;
(d) The husband’s jewellery and Coin Collection; and
(e) Interest in his Sun Super Superannuation Fund.
12.
Other than as provided for in these Orders, each party shall retain free from any claim from the other party all other property, furniture, furnishings, savings, motor vehicles, superannuation entitlements and other financial resources currently in that party’s name, possession or control as at the date of these Orders and each party shall also indemnify the other party in relation to any liabilities or debts payable by that party as at the date of these Orders and keep such party indemnified from any such claim.
13.
In default of either party doing all acts and things and executing all such documents as are necessary to give effect to these Orders, a Registrar of the Family Court of Australia at Sydney be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute all such documents in the name of the party in default and do all such acts and things necessary to give validity and operation to said Orders.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
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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