Barton and Barton (No 2)

[2017] FamCA 890

FAMILY COURT OF AUSTRALIA

BARTON & BARTON (NO. 2) [2017] FamCA 890

FAMILY LAW – CHILD SUPPORT – Where the mother seeks leave to amend her application to include a child support departure claim – Where the final hearing is scheduled in six weeks and is in relation to parenting proceedings – Where the hearing is unlikely to be able to accommodate the new issue unless the father’s application has changed – Where the father is required to file an updated application within 14 days if there is a change to his orders sought – Leave is granted to the mother to restore these proceedings to the list.

FAMILY LAW – PRACTICE AND PROCEDURE – Where the mother seeks an order that the father be required to appear in person at the final hearing and in the event that he fails to attend that the hearing proceed on an undefended basis – Where this would occur in any event – Application dismissed.

Child Support Assessment Act 1989 (Cth) ss 116, 117

Family Law Act 1975 (Cth)

In the Marriage of Gyselman (1992) FLC 92-279

APPLICANT: Mr Barton

RESPONDENT: Ms Barton

INDEPENDENT CHILDREN’S LAWYER: Ms Smith

FILE NUMBER: SYC 3379 of 2007

DATE DELIVERED: 30 October 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 30 October 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Ms Wright

COUNSEL FOR THE RESPONDENT:	Ms Kennedy
SOLICITOR FOR THE RESPONDENT:	Abrams Turner Whelan Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Smith

Orders

1. In the event that the father ceases to be represented he shall file within seven days thereafter a Notice of Address for Service providing an address for service within the jurisdiction.

2. In the event that there has been any significant change in the parenting orders sought by the father since he filed his Amended Application the father shall file within 14 days an Amended Application setting out the orders he now seeks in relation to parenting.

3. Leave is granted to the mother to restore these proceedings to the list on giving seven days’ notice to the father and to the Independent Children’s Lawyer in relation to the mother’s application for leave to amend her Application to include a child support departure claim.

4. The time in which the parties file and serve the affidavits containing lay evidence is extended to 8 November 2017.

5. The costs of and incidental to the proceedings today are reserved.

Note:  The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Barton & Barton(No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  SYC3379 of 2007

Mr Barton

Applicant

And

Ms Barton

Respondent

REASONS FOR JUDGMENT

1. The matter has been listed today at the application of the mother in relation to two matters.  Firstly she seeks leave to amend her Initiating Application which is fixed for final trial in December to include a prayer for child support departure.  Secondly, she seeks an order that the father personally attend at the hearing and in the event that he fails to attend, that the hearing proceed on an undefended basis.  With respect, the last mentioned orders are unnecessary. Those matters would follow in any event.

2. Today, the father is represented. His solicitor says that she will be filing a Notice of Ceasing to Act and that the father will act for himself. The Family Law Rules require that he have an address for service in the jurisdiction. In addition he is obliged to appear before the Court for the hearing. In some cases, an application is made for a party to appear by electronic means. In a procedural matter or an interlocutory matter, that works reasonably well but it would be vanishingly rare for a parenting trial or any substantive trial to be conducted by video link in those circumstances. You have the problem of documents being tendered and read and so on.

3. In any event, the father would need leave for that and he has not sought it.  So there is no issue about that.  If the father does not attend Court, then that is not the end of the matter, but it means that he cannot take part in the hearing and the Court would be left with the child’s representative, the mother and its obligations under Part VII of the Family Law Act 1975 (Cth). Therefore there is nothing to be done in relation to those matters, save to remind the father that he is obliged to have an address for service in the jurisdiction. I will order that in the event that the father ceases to be represented, that he file within seven days thereafter, a notice of address for service – providing an address for service within the jurisdiction.

4. As to the application for leave to amend, s 116 of the Child Support Assessment Act 1989 (Cth) makes provision for this Court to have jurisdiction where it would otherwise not in relation to child support departure. The provision says that where the Court finds that there are proceedings on foot between the payer and the payee, and it would be in their best interests that a child support departure application be determined with those other proceedings, then the Court can take up jurisdiction in relation to that issue. Otherwise, the parties are required to go through the steps within the Child Support Agency for an application for departure to be considered, reviewed and ultimately go to the Administrative Appeals Tribunal.

5. Here the decision under s 116 falls to be made in the context that we are now six weeks out from the trial. Child support is a financial matter. There will be nothing in the preparation for the parenting trial that will touch on that issue except an additional matter in s 60CC. Financial proceedings require discovery at the interlocutory level and, of course, formal disclosure in the form of financial statements and the evidence to support the claim. Child support is a very different new area of relief from parenting proceedings.

6. In my view the trial listed in December is unlikely to accommodate the new issue, unless the parenting proceedings collapse in some way.  I must say in terms of settlement discussions, this application is not the most conciliatory thing I have ever seen.  That said it may be that the parties are able to compromise the parenting issue and adjust their preparation for a financial dispute.

7. It needs to be said that the child support issue is not trivial. Section 117(4) and (5) of the Child Support Assessment Act1989 (Cth) contain a labyrinth of matters, each of which require findings in terms of grounds for proceedings (s 117(2)) and then that it would be just and equitable (s 117(4)) and otherwise proper (s 117(5)) to make a departure order. Those things all have to be determined. Decisions such as In the Marriage of Gyselman (1992) FLC 92-279 have identified a three step process that has to be undertaken.  Child support departure is a matter of some substance and some complexity. 

8. I have indicated to the parties that I will provide for, firstly, the father to amend his Application for Final Parenting Orders, within 14 days, if that is required.  There is some contention that he might have changed his Application.  I had made directions about that being reflected in a case outline document.  That will be too late as we need to know that now.  That will tell us whether the breadth of the parenting proceedings has changed.  If not, that will be the end of the application to amend.  If the parenting proceedings are no longer contested, there remains the question of whether the parties could be ready for a child support departure hearing in December.  Presumably the father will hear about the child support application soon.  He will see the documents comprising the case he has to meet after those documents are filed and served.  I doubt that he will have enough time to respond but I will not rule that out at this stage. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 30 October 2017.

Associate: 

Date:  8 November 2017