Ellis v Ellis [2012] NSWSC 577

Supreme Court New South Wales

Medium Neutral Citation: Ellis v Ellis [2012] NSWSC 577 Hearing dates: 5 October 2011 Decision date: 04 June 2012 Before: Hoeben J Decision: (1) Appeal allowed. (2) The orders made by her Honour on 18 October 2010 are quashed. (3) I direct the parties to prepare Short Minutes within fourteen (14) days of the date hereof which reflect the above findings and which have regard to the following: (i) In accordance with her Honour's findings, the defendant had no obligation to make any payments pursuant to cl 1.1 of the agreement after the children commenced attending their new school. He does have an obligation to make payments under that clause up to and including the date when the children ceased attending "their current private schools". To the extent that the plaintiff received ASG cheques in respect of that period, i.e. until the children ceased attending "their current private schools", the defendant should receive a credit. (ii) The defendant is to make payments pursuant to cls 1.2 and 1.3 of the agreement up to and including 16 July 2010, except that there is no obligation to make any payments in respect of the child Jessica after she turned 18. (iii) The question of what happens to the ASG cheques received by the plaintiff, other than the adjustment referred to above, is not to form any part of the Short Minutes. (4) In default of agreement, each party is to bring to Court Short Minutes setting out the orders which he or she submits should be made. (5) Each party should be in a position to make brief submissions as to costs in relation to the proceedings before her Honour and in this Court. Catchwords: APPEAL - appeal from Local Court to Supreme Court - Local Court Act 2007 sections 39 and 41 - construction of agreement between divorced parents for maintenance of children - whether agreement to change of school to be inferred from conduct of one party - no failure on the part of Magistrate to provide adequate reasons - error in failing to decide all issues placed before court - Notice of Contention - whether agreement between divorced parents subject to Child Support (Assessment) Act 1989 (Cth) - whether and in what circumstances agreement brought to an end - no remittal to Local Court - discretionary grounds. Legislation Cited: Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) Local Court Act 2007 Supreme Court Act 1970 Cases Cited: Alchin v Daley [2009] NSWCA 418 Baring v Russell Edwards Design Services Pty Ltd [2008] NSWCA 58 Besseler Waechter Glover & Co v South Derwent Coal Co Ltd [1938] 1 KB 408 Bruner v Moore [1904] 1 Ch 305 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Category: Principal judgment Parties: Helen Patricia Ellis - Plaintiff Paul Walton Ellis - Defendant Representation: Counsel: Mrs M Bridger - Plaintiff Mr AM Gruzman - Defendant Solicitors: Jo-Anna FS Moy - Plaintiff Shipton & Associates - Defendant File Number(s): 2010/372073