Cabban v Cabban [2010] NSWSC 1433

Cabban v Cabban [2010] NSWSC 1433

A small provision for the children's immediate education needs is appropriate in the context of a small estate, to be paid from superannuation funds held in trust for the children until they reach 18, with the tutor's (plaintiffs') costs capped and paid out of superannuation. No provision is made for future contingencies as there is no actual estate after costs, and current housing arrangements should not be disturbed.

Parties
Plaintiff: Chloe Cabban; Plaintiff: Emily Hay; Tutor for Plaintiffs: Kathleen Joyce Hay; Defendant: Cameron Cabban
Jurisdiction
Australia
Judgment Date
13 December 2010
Procedural Posture
Application for Family Provision Order / Judgment
Outcome
Order for $35,000 from superannuation funds held in trust for Chloe and Emily until they attain 18 years; tutor's costs capped at $25,000 to be paid out of superannuation; parties to bring in short minutes.
Legal Topics
Family Provision, Notional Estate, Provision for Infant Children, Superannuation as Notional Estate
Succession Law Equity Family Provision Notional Estate Provision for Infant Children Superannuation as Notional Estate

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Parties

Chloe Cabban

Plaintiff

Emily Hay

Plaintiff

Kathleen Joyce Hay

Tutor for Plaintiffs

Cameron Cabban

Defendant

Procedural Posture

Application for Family Provision Order / Judgment

Legal Issues

  1. 1 Whether adequate provision has been made for the proper maintenance, education and advancement in life of the infant children of the deceased
  2. 2 Appropriateness and quantum of provision for the plaintiffs from the deceased estate
  3. 3 Designation of superannuation funds and insurance proceeds as notional estate

Ratio Decidendi

A small provision for the children's immediate education needs is appropriate in the context of a small estate, to be paid from superannuation funds held in trust for the children until they reach 18, with the tutor's (plaintiffs') costs capped and paid out of superannuation. No provision is made for future contingencies as there is no actual estate after costs, and current housing arrangements should not be disturbed.

Court Disposition

Order for $35,000 from superannuation funds held in trust for Chloe and Emily until they attain 18 years; tutor's costs capped at $25,000 to be paid out of superannuation; parties to bring in short minutes.

Orders

  • $35,000 from superannuation funds to be held in trust for Chloe and Emily Ann Cabban and Emily Kate Hay until each attains 18 years, with full powers of advancement.
  • Tutor's (Kathleen Hay) costs capped at $25,000, to be paid out of superannuation monies.