Benson and Benson
[2014] FCCA 1193
•25 June 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BENSON & BENSON | [2014] FCCA 1193 |
| Catchwords: FAMILY LAW – Property proceedings finalised by consent order in July 2012 – applicant seeks to revisit orders due to alleged miscarriage of justice – matters to be considered – applicant seeks order as to spousal maintenance – is it proper to make such an order – application for departure from administrative assessment of child support – matters to be considered – no miscarriage of justice found – applications dismissed. |
| Legislation: Family Law Act 1975, ss.72; 74; 75; 77; 79; 81; 83 Child Support (Registration and Collection) Act 1988, ss.80; 88; 110B Child Support (Assessment) Act 1989, ss.4(2), 25, 98C, 98E, 98R, 116, 117 |
| Benson & Benson [2012] FMCAfam 335 Bevan & Bevan (1995) FLC 92-600 |
| Applicant: | MS BENSON |
| Respondent: | MR BENSON |
| File Number: | MLC 5232 of 2011 |
| Judgment of: | Judge Brown |
| Hearing date: | 17 March 2014 |
| Date of Last Submission: | 17 March 2014 |
| Delivered at: | Adelaide |
| Delivered on: | 25 June 2014 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
ORDERS
All extant applications in respect of property orders, spousal maintenance and child support, other than the Notice of Appeal (Child Support) filed 19 March 2014 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Benson & Benson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
MLC 5232 of 2011
| MS BENSON |
Applicant
And
| MR BENSON |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are Ms Benson “the wife” and Mr Benson “the husband”. The overall proceedings relate to the settlement of matrimonial property and tangentially to the question of financial support for the parties’ child X, born (omitted) 2007 and the wife herself.
More recently again, the husband has initiated proceedings in which he seeks to be able to spend defined periods of time with X and to communicate with him regularly by telephone.
In this context and because it is evident that X has not interacted with his father for a significant period of time, it has been ordered that X be independently represented.
Proceedings, in various forms, have been on foot between the parties since 16 June 2011. An analysis of these proceedings demonstrates that the parties have an acerbic and difficult relationship with one another.
In particular, the wife mistrusts the husband; whilst the husband believes the wife is both unreasonable and irrational in her behaviour, specifically in her view that he has concealed assets from her and deceived her about his financial affairs.
The parties are now both financially exhausted and, as a consequence of this, each has been compelled to represent themselves in this current round of proceedings and in respect of anticipated proceedings relating to X. This lack of representation has added to the court’s difficulty in adjudicating the issues in dispute between the parties.
These reasons for judgment relate to an application, brought by the wife, pursuant to section 79A of the Family Law Act, which empowers the court to set aside an earlier order altering the proprietary interests of former spouses, if the court is satisfied that there has been a miscarriage of justice, as a consequence of fraud, duress, the suppression of evidence or the giving of false evidence.
On 10 July 2012, the parties’ respective applications for settlement of matrimonial property were listed for a two day trial, before me, in Adelaide. On this occasion, both parties were represented by counsel and each had filed extensive affidavit material, following a process of court based conciliation and a number of interlocutory applications, primarily initiated by the wife, relating to the disclosure of financial documents.
Notwithstanding the poor and mistrustful relationship between the parties, ostensibly at least, on 10 July 2012, with the assistance of their respective counsel, the parties were able to agree on a set of orders dividing their marital assets on a final basis. At the time, on the basis of what I knew of the case, I was satisfied that the orders made represented a just and equitable settlement of the property issues between the parties.
The orders provided as follows:
“1. All previous property orders be discharged.
2. Within seven (7) days the husband and wife do all such acts and things and sign all necessary documents to cause the monies held in trust for the parties by the husband’s solicitors (approximately $570,000.00) to be disbursed as follows:
a) Firstly, to pay the taxation debt in the wife’s name for the year ended 30 June 2011 fixed in the sum of $14,197.90;
b) Secondly, to pay to the wife’s bank account number (omitted) on behalf of the wife the sum of $222,000.00; and
c) Thirdly, the balance to the husband’s solicitor on behalf of the husband being approximately $334,000.00.
3. $22,000.00 of the payment to the wife referred to in paragraph 2 (b) hereof is a payment to which Section 77A of the Family Law Act applies and is attributable to the maintenance of the wife.
4. Unless specified in these orders:
a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
b) Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
c) Insurance policies remain the sole property of the owner named therein;
d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled to pursuant to these orders; and
e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
5. All extant applications are hereby dismissed.”
It is now the wife’s position that these orders are fundamentally unfair to her and represent a miscarriage of justice. On this basis, she seeks to reopen the earlier property proceedings and for a further sum of money to be awarded in her favour. She also seeks to agitate issues relating to child support for X. The basis of the wife’s application is that the husband failed to disclose to her, prior to 10 July 2012, salient details of his financial affairs.
The husband denies that this is the case. It is his position that he made a full and frank disclosure of his financial affairs and the orders of 10 July 2012 represent a fair division of marital assets, in all the circumstances pertaining to the parties and their marriage together.
It is also the husband’s case that he has properly paid all amounts of child support assessed to be paid by him, in respect of X. In these circumstances, it is his position that, if the wife is dissatisfied with the applicable assessments, she should follow the remedies available to her, within the Child Support Agency and ultimately before the Social Security Appeal Tribunal “the SSAT”, to which she is entitled, pursuant to the provisions of the applicable child support legislation.
Indeed, it is common ground between the parties that the wife currently has an appeal pending in this court following a decision of the SSAT in respect of child support issues. In addition, it would seem to be the case that there have been administrative proceedings relating to the provision of child support for X both before a delegate of the Child Support Registrar and the SSAT.
The wife also contends that she is currently bereft of financial support. Accordingly, she submits that it is proper that the husband provide her with some form of on-going spousal maintenance. The husband points to the settlement of the property proceedings in July 2012 and the transfer of funds arising therefrom to the wife, a significant portion of which is said to be subject to the provisions of section 77A of the Family Law Act. As such, it cannot be said that the wife has not been provided with financial support for herself.
Essentially, it is the husband’s case that this court does not have jurisdiction to deal with the child support issue; the earlier property proceedings have been fairly finalised and properly concluded; and the spousal maintenance proceedings are misconceived. It is his position that the wife has engaged in a misconceived and scattergun campaign to obtain further monies from him, by any means she can think of, following the appropriate severing of the financial relationship between them, as a consequence of the court’s order of July 2012.
Orders Sought
The wife seeks the following orders as set out in her amended application filed 7 March 2013:
1.That pursuant to section 79A(1)(a) of the Family Law Act 1975, consent orders dated 10 July 2012 are varied to ensure a fair and equitable outcome.
2.That pursuant to section 83(1)(f), (2)(a)(i) and (2)(ba) of the Family Law Act 1975 the husband pay spousal maintenance to the wife in the sum of $700 per week for the period of 36 months to be capitalized as lump sum of $109,200.
3.That pursuant to section 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support payable by Mr Benson to Ms Benson for X as follows:
4.For the period from November 2012 to 30 June 2013 the annual rate of child support be set at $12,973.00 ($1081.00 per month).
5.That any remaining credits due to the application of non-agency payments are removed from the Child Support Assessment.
6.The annual rate of child support payable by Mr Benson to Ms Benson will increase from 30 June each year, in accordance with variations in the consumer price index in Adelaide.
7.That Mr Benson provide child support to Ms Benson for X by way of a lump sum payment of $4,000.00 being backpay for the reduced payment of child support between March 2011 and November 2012 caused by the application on non-agency payments.
8.That Mr Benson provide child support to Ms Benson for X by way of lump sum payment of $7,203.00 being the outstanding amount for non payment of child support from July 2010 to February 2011.
9.That Mr Benson provide support to Ms Benson for X by way of lump sum payment of $7,203.00 being the outstanding amount for non payment of child support from July 2010 to February 2011.
The husband’s position, in respect of this application, is set out in his Response filed 10 April 2013. Apart from other orders sought in respect of X, his position is that the wife’s various applications should be dismissed.
Background
The husband commenced property proceedings, in the Melbourne Registry of the Court, on 16 June 2011. At that stage, he was represented by solicitors and sought generic orders in respect of marital property, namely that there be a just and equitable outcome.
The husband was born on (omitted) 1965. At the time of this application, he was employed by (employer omitted), as a (occupation omitted). His salary was $209,000.00 per annum.
The wife was born on (omitted) 1968. At the time of the first institution of proceedings and in the period since, she has been engaged in home duties. Prior to the relationship between the parties, she was employed by (employer omitted) as a (occupation omitted).
There is no dispute that Ms Benson has been X’s sole provider of care since the parties separated. She also has a history of ill health, having been diagnosed with bowel cancer. Given these factors, it was and is her position that factors arising under section 75(2) of the Family Law Act greatly favour her.
The parties began to live together in (omitted) 2006. They married on (omitted) 2008. They finally separated in July 2010, when Ms Benson and X left Melbourne for Adelaide, where Ms Benson has strong family connections. Mr Benson has not seen X since.
Given the period of cohabitation, Mr Benson would characterise the marriage as being a relatively short one. This contention, in his case, is highly relevant to how the court should consider the parties’ respective financial contributions made during the marriage. It is his position that his direct financial contributions are significantly greater than those of the wife.
During the parties’ marriage, their major asset was their former family home situate at Property S, a suburb of Melbourne. The purchase price, in November 2007, was $625,000.00. This property was sold, by the parties, prior to their separation, netting a sum in excess of $720,000.00.
Prior to his employment with (employer omitted), the husband had been employed by (employer omitted) for approximately 19 years. He was retrenched from (employer omitted) effective from 15 November 2007. He received a retrenchment payment in excess of $400,000.00. It was and is the husband’s position that this payment was the major sources of funds for the purchase of the Property S property.[1]
[1] This assertion is evidenced by a letter from (employer omitted) to the husband dated 24 August 2007 and banking records dated November 2007. See Annexure B1-2 of the husband’s Affidavit filed 16 June 2011.
In addition to the proceeds of sale of the Property S property, in his relevant documents filed in support of his application and at trial, the husband disclosed interests in a self-managed superannuation fund; the (employer omitted) Superannuation Fund; and shares in both (employer omitted) and (employer omitted).
The wife responded to the husband’s application in July 2011. On a final basis, she also sought a just and equitable division of the parties’ property, including the proceeds of sale of the Property S property. However, it was her position that Mr Benson should retain his superannuation and shares. The necessary implication being that she wanted to receive as much of her entitlements, as possible, from the ultimate resolution of the proceedings, in the form of cash.
In addition, the wife sought an award of spousal maintenance, in the sum of $1,000.00 per week, which was to be paid to her until X commenced primary school. She did not pursue this application at an interim stage. Ms Benson applied for an administrative assessment of child support, for X, after the parties separated.
As part of his employment package with (employer omitted), the husband had the use of a Mercedes Benz motor vehicle. The vehicle was leased. At separation, the wife retained use of the vehicle, whilst the husband continued to pay the necessary lease payments.
The lease ended in June 2011. Mr Benson sought to have the lease payments, for the vehicle, taken into account for child support payments as a non-agency payment. This has been controversial. It being the wife’s position that it is unfair to her and X that child support payments be discounted by reference to this vehicle.
The proceedings were transferred to the Adelaide Registry of the Court on 25 July 2011. By consent, the parties agreed to an interim property settlement, by which each of them received a distribution of $100,000.00 from the proceeds of sale of the Property S property, with the balance being invested. The wife was directed to return the Mercedes motor vehicle to (employer omitted) in Adelaide. No orders were made in respect of spousal maintenance.
At the time these orders were made, the wife was represented by solicitors in Adelaide. They ceased to act on 28 July 2011. Thereafter, the wife continued to act on her own behalf, until shortly prior to the date on which the parties’ competing applications were ultimately listed for final hearing (July 2012). She has again acted on her own behalf in respect of the current proceedings, which seek to revisit the final property orders.
In November 2011, the husband resigned his employment with (employer omitted). It is his position that the company indicated to him that, in the event he chose not to resign, he would be made redundant, with potentially deleterious financial consequences for him, so far as the quantum of any severance payment to be advanced to him.
It is the husband’s evidence that he received a net redundancy payment of $41,752.32 from (employer omitted) in February 2012.[2] In addition, it is the husband’s evidence that he sold 1,200 (employer omitted) shares, recouping approximately $20,000.00, which he used to pay his legal fees and pay tax.
[2] Evidenced by an Employee Release Agreement between the husband and (employer omitted) and being Exhibit DB13 to the husband’s Affidavit filed 13 June 2012.
Mr Benson commenced employment with the (employer omitted) on (omitted) 2012. His position was as the (occupation omitted) in the (employer omitted). His base salary was $136,000.00 gross per annum.[3]
[3] Evidenced by Annexure B16 to the husband’s Affidavit filed 12 June 2012.
The parties attended a financial mediation conference on 25 January 2012 but were unable to reach agreement. As a consequence, the parties’ competing applications were listed for final hearing on 10 and 11 July 2012. Each party was directed to file Affidavit material and an updated Financial Statement prior to the dates allocated for trial.
In addition, as a consequence of agitation by the wife, on 30 January 2012 the following order was made:
1.Within 28 days the husband provide to the wife the following documents and information in regard to the following:
a.Details of his superannuation holdings with the (employer omitted) Superannuation Fund from March 2008 onwards;
b.His contract of employment with (employer omitted), including details of any motor vehicle provided to him;
c.Details of his redundancy payment from (employer omitted) including any payment of long service leave, holiday pay or accumulated sick leave and any other payments in lieu of ongoing employment;
d.Tax returns for the financial year 30 June 2010/2011;
e.Details of his disposal of (approximately) 20,000 (employer omitted) shares and where the proceeds of same have been deposited;
f.Details of how the sum of $26,000.00 withdrawn from the parties’ joint account on separation have been utilised; and
g.Details of the car previously leased by him as part of his contract of employment with (employer omitted).”
Accordingly, the wife ventilated, with both the court and the husband and those advising him, issues which were of concern to her in respect of the husband’s financial affairs. In addition, prior to the trial, the wife elected to issue a number of subpoenae, which were addressed respectively to (employer omitted); the (employer omitted) Credit Union; (employer omitted); and the husband’s taxation accountant.
In April 2012, for reasons already provided to the parties,[4] I dismissed an application brought by the husband for a further interim or partial property distribution being made from the proceeds of sale of the Property S property.
[4] See Benson & Benson [2012] FMCAfam 335.
One of the reasons supporting this decision was that the final hearing was imminent and the application was vehemently opposed by the wife, who was fearful that any such order might prejudice her position at final hearing.
On 13 June 2012, the husband amended his application for property settlement. He proposed that the proceeds of sale of the Property S property be divided 75/25 per cent in his favour and his interest in the (employer omitted) Superannuation Fund be divided equally between the parties.
Prior to the scheduled date for the trial, on 13 June 2012, the husband filed an affidavit in support of his position, together with an updated statement of his financial position. Both were prepared by his solicitor, Mr Constantinou. In addition, Mr Benson relied on an affidavit of Mr Constantinou, filed 9 July 2012, which detailed documents requested by the wife, in respect of this matter, which Mr Constantinou had supplied to her personally, given that she was not legally represented.
On 28 June 2012, Ms Benson filed an affidavit of herself, together with a statement of her financial circumstances. The trial affidavit is an extensive document of some 187 paragraphs. Both her trial affidavit and statement of financial circumstances were ostensibly prepared by Ms Benson herself.
In his affidavit, the husband asserted that the parties’ non superannuation marital assets amounted to $1.08 million in value and their total superannuation to a further sum of approximately $360,000.00.
It was further Mr Benson’s position that, at the commencement of the parties’ relationship, he had been in a materially superior financial position to that of the wife. He asserted that he had cash totalling around $184,000.00; a motor vehicle worth $60,000.00; superannuation worth approximately $310,000.00; and approximately 4,000 (employer omitted) shares.
On the other hand, he asserted that Ms Benson had $100,000.00 in cash and some shares. She does not accept that this was the case. It was and is her position that she had significant assets at the commencement of the relationship but concedes that they were not as extensive as those available to the husband. However there can be no doubt that this controversy was clearly articulated prior to the trial of July 2012. It was not a new issue.
In terms of the purchase of the Property S property, Mr Benson asserted that the majority of its purchase price had come from his redundancy payment from (employer omitted). This redundancy package was calculated by reference to his years of employment with (employer omitted), the majority of which had pre-dated his relationship with Ms Benson.
It was Mr Benson’s evidence that his salary package, with (employer omitted), was significantly less than he had previously enjoyed with (employer omitted). He deposed that his salary, with (employer omitted), including superannuation, amounted to around $145,000.00 per year.
Mr Benson has previously been married. As a consequence, he has two children from his first marriage. They are A born (omitted) 1998 and B born (omitted) 2000. These children live with their mother in Queensland. Mr Benson pays child support for these children, pursuant to a Binding Child Support Agreement, in a sum of $2,200.00 per month, together with fifty per cent of A’s secondary school fees, which amount to $900.00 per month.
In her trial affidavit, the wife was critical of the husband, characterising him as a violent and controlling person. She provided a copy of an Intervention Order, made in her favour, by the Moorabbin Magistrates Court on 21 September 2009.
Ms Benson also asserted that she had savings of $350,000.00, at the time of the commencement of the relationship between the parties. The husband does not accept this to be the case. It is his position that his solicitor has requested documentary proof of this assertion, which has never been provided. As previously indicated this was a live issue, in the minds of both parties, when the matter was listed for trial.
Mr Benson was assessed to pay $1,081.00 per month by way of child support for X. The wife has provided some of the notices of assessment arising but not correspondence in respect of applications subsequently made seeking administrative departure from the relevant assessments.
However, it is apparent that as a consequence of the lease payments paid by Mr Benson, in respect of the Mercedes motor vehicle, between the date of separation and July 2011, there was such a departure. As the lease payments totalled approximately $2,000.00 per month, the amount of child support actually paid by Mr Benson was around $700.00 per month.
This reduction on the assessment, ratified by the delegate of the Child Support Registrar, arose as a consequence of the payment of the motor vehicle lease payments, which it was accepted benefitted Ms Benson and which were referrable to Mr Benson. This is what has been characterised as a non-agency payment. Ms Benson feels this discount is inequitable to her and X.
In her financial statement, the wife disclosed ownership of a share investment portfolio, which she valued at $200,000.00. In addition, she disclosed ownership of (omitted) Shares and (omitted) shares, which she asserted had been purchased by her father in order to fund X’s education. The shares were worth approximately $27,500.00. In addition, she disclosed superannuation, with (omitted) Super, to the value of approximately $41,300.00.
At the time of the trial, Ms Benson continued to be unemployed. She received income, by way of dividends, in an amount of $270.00 per week; child support from Mr Benson of $177.00 per week; and family tax benefits to the value of $177.00 per week. Accordingly, her average weekly income was approximately $620.00.
When the parties’ competing applications came on for trial, on 10 July 2012, each party was represented by counsel – the husband by Mr Nehmy; the wife by Ms West. Mr Nehmy was instructed by Schetzer Constantinou, solicitors of Melbourne; Ms West was instructed by R J Cole & Partners. Prior to the date scheduled for the trial, the wife’s solicitors had not filed or prepared any documents on her behalf.
The parties’ competing applications were called on for hearing during the morning on 10 July 2012. On the mutual request of the parties’ counsel, the matter was stood down so that settlement negotiations could occur between the parties. This is a common occurrence in proceeding before this court and the Family Court. It is not to be regarded as sinister or out of the ordinary.
Later that day, I was advised that the parties, with the assistance of their respective counsel, had reached a mutually agreed resolution of the case, the details of which had been recorded in a handwritten memorandum, which each party had signed. I was provided with the original of this document.
This memorandum remains on the court file and has been memorialised in the orders which have been subsequently engrossed and signed by me and sealed by an appropriate officer of the court. The orders note that they were made, with the consent of each of the parties, by me, on 10 July 2012.
On the basis of what I was told by counsel for each of the parties, I was satisfied, at the time, that each party freely consented to the orders proposed and that the orders themselves represented a just and equitable outcome of the proceedings. In this context, I was advised by counsel of the basis of the proposed resolution.
In particular, I was told that the parties had elected to take a pragmatic approach to the calculation of the pool of matrimonial assets. Although they had not been able to agree on an exact total, they agreed that it was somewhere between $1.4 million (the husband) and $1.5 million (the wife). On this basis, the final division of property was in the range of between 38-40 per cent in the wife’s favour and 60-62 per cent in the husband’s favour, depending on whether the larger or smaller figure was adopted.
On the basis of the following factors: that the marriage between the parties was relatively short; that it was jointly accepted the husband had brought in significantly more assets than had the wife, at the commencement of the marriage; that the wife had the responsibility for caring for X and had a lower income earning capacity than had the husband; I was satisfied that the outcome was a just and equitable one, particularly given that both parties were legally represented and each counsel sought that the orders be made.
The effect of the orders was that the wife received cash in an amount of $222,000.00; retained her share portfolio ($205,000.00); her shares ($28,000.00); her superannuation ($42,000.00). In addition, it was noted that she had already received $100,000.00 by way of the earlier partial property settlement.
The husband sought that $22,000.00 of the cash settlement be characterised, pursuant to section 77A of the Family Law Act as spousal maintenance. The section provides that were a court makes an order involving the payment of a lump sum, it is required to specify the portion of that payment, which relates to the provision of maintenance for the party receiving such a sum.
The current Applications
The wife commenced these proceedings on 15 November 2012. Initially, she sought orders in respect of both spousal maintenance and child support for X. In particular, she sought a payment of $700.00 per week, by way of spousal maintenance, for a period of 36 months, to be capitalised as a lump sum in the sum of $109,200.00.
In addition, she sought a departure from the administrative assessment of child support, for X, for the period from November 2011 to 30 June 2012 to be set at $1,081.00 per month. The intent of this was to remove any credits arising in Mr Benson’s favour as a result of non-agency payments relating to the provision of the Mercedes motor vehicle, in the period following separation.
Further, Ms Benson sought a sum of $13,380.00, being a lump sum of child support referrable to the period during which child support payments payable by Mr Benson had been reduced as a consequence of the payment by him of the lease payments relating to the Mercedes motor vehicle.
Finally, Ms Benson sought an order that Mr Benson pay fifty per cent of all of X’s school fees, at (omitted) School, from the commencement of the 2013 school year.
On 7 March 2013, Ms Benson amended this application. She now seeks orders pursuant to section 79A(1)(a) of the Act that the orders made on 10 July 2012 are varied to ensure a fair and equitable outcome.
In addition, she seeks pursuant to section 83(1) & (2) of the Act that there be a modification to those orders and the husband pay her an additional sum of $109,200.00 by way of spousal maintenance, which is calculated at the rate of $700.00 per week, for the next three years.
Mr Benson formally responded to the Amended Application on 10 April 2013. In his response he raised issues regarding X. In particular, he sought a regime of orders through which he could begin to spend time with X. Otherwise, he seeks the dismissal of Ms Benson’s application for further financial orders.
Due to complexity of the issues surrounding X, orders have been made for him to be independently represented in these proceedings and a family report prepared. These reasons for judgment are not concerned with the orders any of the parties seek in respect of X, other than that those issues are vexed and emblematic of the strained and suspicious relationship between the parties.
The evidence
The wife has filed numerous affidavits in these proceedings. The main ones, on which she relies, in respect of these proceedings, are as follows:
a)An affidavit of herself filed 15 November 2012, to which is attached a copy of a letter from her Barrister and one page of the Outline of Case of the husband’s Counsel;
b)An affidavit of herself filed 7 March 2013.
These affidavits repeat her criticisms of the husband made prior to the resolution of the proceedings in July 2012. They clearly evidence the fact that the wife has a long standing sense of grievance against the husband and believes that he has a superior standard of living to the one which she herself enjoys and this, of itself, is grossly inequitable.
Ms Benson is clearly an intelligent person, who it would seem, with some professional assistance, has provided her own affidavit material for the case. Her affidavits make sense and are logically constructed. However, in my view, the relief which she seeks from the court is largely inchoate. She obviously feels hard done by particularly that her situation, when compared to that of her former husband, is grievously unfair.
In all these circumstances, it is my assessment that Ms Benson lacks objectivity about her situation, particularly what occurred in the settlement negotiations between her counsel, Mrs West and counsel for the husband, Mr Nehmy. Rightly or wrongly, she now feels that she was not allowed to take a proper part in those discussions. My impression is that she now regrets settling the case on the basis on which she did.
In many ways, my impression of Ms Benson is of a person grasping at straws or who has a tendency to put undue emphasis on matters of little or no overall consequence. Regrettably, she has a siege mentality in respect of Mr Benson. Essentially, Ms Benson’s sense that she has been wronged, in some fundamental way, blinds her to the actual nature of her case and the legal provisions, which apply to it.
Ms Benson has many complaints about the barrister and solicitor, who represented her, after her last minute instructions, in the hearing of July 2012. It was Ms Benson’s decision to retain counsel, at this late stage, after she had hitherto been representing herself. In this context, she must bear some responsibility, if she perceives that her lawyers did not present her case, in the manner which she would have wished or with the vehemence which she sought.
In any event, this court is not charged with oversight of the professional responsibilities of members of the South Australian legal profession. I am not entitled to be privy to what passed between the lawyers concerned in what are confidential negotiations. I was satisfied that it was appropriate, given the provisions of section 79 of the Family Law Act, to make the orders which were made on 12 July 2012 with the apparent acquiescence of both parties.
The Law Society and Bar Counsel of South Australia have professional oversight in respect of legal practitioners in the State of South Australia. If Ms Benson feels that the case was compromised, against her instructions, any complaint, which she may wish to bring in this regard, lies with these professional bodies, not the court.
In the context of her complaints about her lawyers, Ms Benson has provided the letter of report, from her barrister Ms West to her solicitors RJ Cole & Partners, dated 11 July 2012. She makes many complains about calculations, which appear in this letter. What is germane to these complaints is that the information, claimed to have been misrepresented by her then barrister, was available to Ms Benson herself in July 2012. As such, it is difficult to see that she was herself deceived.
In particular, Ms Benson complains that her Barrister reported that Mr Benson's (employer omitted) redundancy was $440,000.00, when it should more properly be recorded as $421,000.00. She makes this complaint on the basis of documents made available to her by Mr Benson, well prior to the hearing in July.[5]
[5] See Affidavit filed 17 February 2014 at paragraph 10.
Ms Benson also has complaints about how issues to do with the parties’ respective initial contributions of capital were factored into the ultimate compromise of the proceedings, ostensibly reached by the parties. She complains that no regard was made as to how Mr Benson’s utilised that contribution. In addition, she complains that her parcel of shares, purchased by her father, was not quarantined from the discussions between the barristers.
In my view, these are not matters that relate to any alleged omissions, on Mr Benson’s part, in respect of the proper disclosure of his financial circumstances. Rather, what they evince is an inchoate sense of grievance, on the wife’s part, that she has been harshly treated by Mr Benson and subsequently by the court.
Ms Benson complains that it was erroneous for the court to be told that she was retaining assets in excess of $600,000.00, when the reality was that the amount she actually received was $503,000.00. In this regard, she points to the fact that she utilised the interim distribution of property, in the sum of $100,000.00, received by her around July of 2011, in living expenses for herself and X. This may be so, but it does not mean that the sum in question should not be regarded as being relevant to the settlement overall.
Ms Benson also contends that Mr Benson wantonly wasted marital assets in the period between separation and trial. As a consequence, it seems to be her position that there should have been a notional adding back of assets, into the parties’ pool of assets, as calculated by Ms West and Mr Nehmy, counsel for the husband.
In addition, Ms Benson complains that other items of property, which the husband had or received after the parties separated, were again not included in the parties’ pool of assets. These included furniture and household effects retained by Mr Benson; the sum of $30,000.00 allegedly withdrawn from the parties’ joint bank account following separation; a bonus of $28,240.00 received by Mr Benson on 15 August 2010; a signing on bonus of $10,000.00 received by Mr Benson, when he commenced employment with (employer omitted); and 900 (employer omitted) shares sold by the husband.
Again, these are complaints which relate to alleged omissions attributable to those who advised Ms Benson, rather than the failure of Mr Benson, either negligently or disingenuously, to provide financial disclosure to her. Ms Benson’s essential complaint is that Ms West did not properly calculate the pool of marital assets, to which issues of contribution and future need were applied.
Mr Benson made no secret of his sources of income. In addition, Ms Benson herself was not loath to issue her own subpoenas to organisations with which Mr Benson had a financial relationship. The essence of Ms Benson’s complaint is that her legal advisors did not place significant emphasis on matters, which were within her knowledge prior to the hearing of July 2012.
In her most recent affidavit, Ms Benson complains that her former solicitor has failed to answer her queries about the settlement. Again these are matters of professional regulation not within the oversight of the court. She also complains that she was not provided with Mr Nehmy’s case outline document prior to her ostensible agreement to the consent orders. It is her position that she had a right to view this document so that she had a voice … to ensure the process was completely transparent.[6]
[6] See wife’s Affidavit filed 17 February 2014 at paragraph 28.
These complaints may be valid. I do not know. However, in my view, they do not necessarily establish that the proceedings of July 2012 miscarried. What they demonstrate is that Ms Benson now feels considerable disquiet about the advice she received from her counsel.
In addition, Ms Benson asserts that she has received advice from three accredited family law specialists that she was entitled to a 55/45 split of marital assets. Again, Ms Benson may have received this advice. However, once again, this does not establish that the earlier proceedings miscarried, certainly not because of any omission or deception on Mr Benson’s part.
In my view, the wife is now fixated upon her view that she ill-advisedly settled the proceedings in July 2012 and believes that Mr Benson must be responsible, in some way, for this. However, it seems to me that, prior to July 2012, whilst acting on her own behalf, Ms Benson was well aware of the salient issues in the case and was accordingly capable of instructing her counsel properly, particularly in regards to any potential issues relating to non-disclosure.
Regrettably, it is my impression that Ms Benson has the propensity to misquote sources and material, from earlier stages in the proceedings, in order to assist her cause, now that she perceives she has been hard down by. In this context, she attaches a letter from one of her previous solicitors, sent to the husband’s solicitors, in support of her assertion that she has been advised she is entitled to a 55/45 per cent split of assets.
In addition, she places emphasis on comments made by me, in the reasons for judgment supporting my decision not to make any further interim property settlement, as being supportive of this view. In this latter regard, as a fair reading of the reasons concerned will demonstrate, Ms Benson is mistaken.
In her affidavit material, Ms Benson alludes to two specific documents, which she alleges were not disclosed by Mr Benson. The first is what is entitled an e-trade cash investment account with the (omitted) Bank; the second is what is described as a current (employer omitted) Superannuation Statement.
In the context of the first document, which is annexed to Ms Benson's Affidavit material, the wife asserts that this is evidence that Mr Benson was engaged in share trading, presumably at profit, which he did not disclose to her. The implication of the document being that it evidences a failure on Mr Benson’s part to make a full and frank disclosure of his financial circumstances.
What is interesting to note about the document is that it is dated from April to October 2010 and bears Ms Benson’s residential address, after the parties had separated. The account discloses a balance of $3,388.79, at the end of the period in question.
Mr Benson concedes that he did have a share trading account, when the parties separated. He also concedes that he may have omitted to disclose the balance in the account. He explains this omission by the fact that the relevant statement was sent to Mr Benson’s address. In addition, he appoints to the self-apparent fact that Ms Benson was well aware of the account prior to the hearing of July 2010, as she received the document in question.
Mr Benson relies on one affidavit, in support of his position. It is his affidavit filed on 28 February 2014. In addition, he gave sworn evidence in court and was cross examined by the wife. The wife also gave additional sworn evidence but was not extensively cross examined by Mr Benson.
In my estimation, Mr Benson gave his evidence in a calm and methodical manner. He presented as a person who was wearied by what he regarded as his former wife’s unrealistic demands. It is the effect of his evidence that he has never concealed anything from her and has always wished to settle proceedings between them amicably and fairly.
It is his position that the settlement reached in July 2012 was appropriate and resulted in a situation in which Ms Benson received a significant component of her entitlements in cash, which was her preference.
In particular, Mr Benson denies that he has concealed relevant financial documents from Ms Benson or has failed, in any way, to provide her with a full and frank disclosure of his financial situation. In this context, he relies on an Affidavit of his former solicitor, Mr Constantinou filed on 9 July 2010. Specifically, the husband states that he provided the following documents to Ms Benson:
·Pay slips;
·(employer omitted) superannuation fund statements;
·Self-managed superannuation fund statements;
·Employment contract with (employer omitted);
·Bank account statements;
·Share transactions, including in respect of (employer omitted) and (employer omitted) Shares.
In addition, Mr Benson denies that he has enjoyed an extravagant lifestyle, in the period between separation and trial. Again, in my view, this is a question of fact, rather than one relating to a lack of disclosure. In any event, the evidence relating to this alleged extravagant lifestyle comes from Ms Benson’s analysis of Mr Benson’s bank account statements, which were available to her.
On balance, I find the evidence of Mr Benson to be more reliable than that of Ms Benson in respect of matters relating to disclosure. I do not accept that the wife was not aware of Mr Benson’s financial situation, including his superannuation holdings, at the time of the hearing in July 2012.
In respect of the (omitted) E-trade Statement, in my view, this is an example of Ms Benson seizing upon a document, out of context, in an attempt to buttress her claim that a significant miscarriage of justice has occurred. At the end of the day, in my assessment, the major reason why Ms Benson feels aggrieved, at the outcome of the July 2012 proceedings, relates to poor communication between her and her legal advisors, who were retained by her late in the piece.
Legal principles applicable to applications pursuant to section 79A
Section 79A(1)(a) of the Family Law Act reads as follows:
“Where, on application by a person affected by an order made by a Court under section 79 in property settlement proceedings, the Court is satisfied that:
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
…
the Court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
Accordingly, in circumstances where the court is satisfied that there has been a miscarriage of justice, a discretion is provided to set aside any orders considered to be vitiated by any such miscarriage. The burden falls on Ms Benson to establish that there has been a miscarriage of justice in all the circumstances of the current case.
In Lancer & Lancer[7] Bryant CJ noted that the section 79A contained two aspects. The first being a fact finding exercise, that is whether the applicant concerned could establish, to the relevant evidentiary standard – the balance of probabilities – that there had been a miscarriage of justice by reason of one of the matters set out in sub‑section (1).
[7] Lancer & Lancer [2008] FamCAFC 112
The second part being what followed from such a positive finding, namely whether the court, in its discretion, should set aside or vary the original order.
Section 79A is a piece of beneficial legislation. Accordingly, it is not to be interpreted in an unduly restrictive fashion.[8] I also acknowledge that it is a fundamental requirement of all matrimonial property litigation that the parties to such proceedings make a full and frank disclosure of their financial matters, both to each other and to the court.
[8] See Gebert & Gebert (1990) FLC 92-137 at 77, 935
This a matter of public policy interest, given the high volume of matters coming before this court and the Family Court, involving property issues. It is essential to the administration of justice that as many as possible of these case be resolved consensually and both the individuals concerned and the community generally have confidence in the probity of such settlements. As such, a failure to make proper disclosure can amount to a miscarriage of justice.[9]
[9] See Suiker & Suiker (1993) FLC 92-436 at 80,471
However, in this case, I do not think that Ms Benson has established that there has been a miscarriage of justice, on the balance of probabilities, on the basis of any of the considerations set out in section 79A(1)(a). In particular, I do not consider that she has established any fraud or suppression of evidence, which can be attributed, in any way, to Mr Benson.
To the contrary, I am satisfied that the proceedings of 10 July 2012 were fair to all concerned. Both parties were represented by counsel. The negotiations between those counsel occurred on a level playing field. The fact that Ms Benson considers that the result is now unfair to her or indeed that there was a possibility that, if the case had proceeded to final adjudication, she might have received a larger share of property does not constitute a miscarriage of justice.
Child support application
As previously indicated, Ms Benson seeks a departure from the administrative assessment of child support, for X, to take into account the diminution of the assessment by reference to any non agency payments paid by Mr Benson. In addition, she seeks that Mr Benson pay 50 per cent of X’s education expenses, which have not as yet been quantified to me.
At this juncture, it is difficult for me to establish a clear narrative of what has occurred in respect of child support for X, given that I have not been provided with all the documents originating with the Child Support Agency itself. It is, however, Mr Benson’s position that he has paid all monies, which he has been assessed to pay by the Child Support Agency.[10]
[10] See Affidavit of the husband filed 28 February 2014 at paragraph 38.
In her affidavit filed on 17 February 2014, Ms Benson has provided two child support assessments both dated 29 October 2013. The first is for the period from 1 April 2013 to May 2013 and is based on a child support income of $287,499.00 for Mr Benson, which results in an annual amount of child support payable of $13,427.00.
The second assessment is for the period 29 October 2013 to 30 November 2013. It is based on a child support income of $90,609.00 for Mr Benson, which results in an annual amount of child support payable of $6,022.00.
In addition, it is clear from Ms Benson’s affidavit that there have been proceedings in the Social Security Appeals Tribunal, instigated by Mr Benson, which determined that the Mercedes motor vehicle lease payments, made between March 2011 and July 2011, totalling approximately $8,000.00, could be credited to the parties’ child support account as prescribed non agency payments.
Most recently, on 4 February 2014, the SSAT determined that these lease payments should be credited as non-agency payments. The amount in question is around $8,000.00 in total. On 19 March 2014, Ms Benson filed a Notice of Appeal, in respect of the SSAT decision dated 4 February 2014. This appeal has not, as yet, been determined.
As I understand matters, there is a further decision of the SSAT made on 20 June 2013. Again, Ms Benson was the applicant and the proceedings touched on the issue of the controversial motor vehicle lease payments but the essential basis of the appeal was that the determination in question did not properly reflect the income, property and/or financial resources of the husband.
In addition, Mr Benson cross-applied asserting that the assessment did not properly reflect the wife’s earning capacity. The SSAT affirmed the decision of the Child Support Agency. As far as I know, this decision has not been the subject of appeal to this court.
Accordingly, it seems probable that there have been extensive proceedings before both the Child Support Agency and indeed the SSAT in respect of child support issues between the parties. I do not consider that I have been provided with a comprehensive record of all the relevant decisions concerned, particularly a running record of the relevant assessment, particularly what has been Mr Benson’s child support income for assessment purposes from time to time.
In addition, an appeal from the SSAT remains outstanding, in respect of the controversial issue of the motor vehicle lease payments. I personally have been scheduled to hear that appeal later in the year. In these circumstances, it seems inappropriate that there be any adjudication of whether it is just and equitable that there be some form of “refund” to Ms Benson in respect of the non-agency payments, which have been credited to Mr Benson, as a result of the lease payments.
In addition, it is my view that a court, in the current circumstances, must be extremely cautious about entering into child support issues, particularly where it is uncertain whether or not the parties concerned have exhausted their remedies for both internal and external review administrative review, pursuant to applicable child support legislation.
In order to explain why I have reached this view, it is necessary to outline, as best I can, the legislative basis for the calculation of child support in this country and the relevant mechanisms to review such calculations. At the outset, it is important to note that the involvement of courts, such as this one, in the assessment of child support is closely circumscribed. Fundamentally, the calculation of child support is an administrative matter.
In Australia, the financial support, to be provided by parents to their children, is determined by reference to a scheme inaugurated by two pieces of interrelated legislation. Firstly, the Child Support (Assessment) Act 1989 (the “Assessment Act”) and secondly, the Child Support (Registration and Collection) Act 1988 (the “Collection Act”).
These complex pieces of legislation are supported by other legislation, relating to social welfare payments, taxation matters, and the like. In broad terms, the child support regime provides a mechanism for the financial support, to be provided by parents for their children, to be calculated administratively, through the application of legislatively prescribed formulae.
The relevant formulae are based on a number of elements, primarily related to the respective incomes of the parents themselves and the extent of care, which each provides to any child concerned. In this particular case, there is no controversy that Ms Benson currently provides 100% care for X.
The principle object of the Assessment Act is to ensure that children receive a proper level of financial support from their parents.[11] This object is supported by the following particular objects set out in section 4(2) as follows:
a)that the level of financial support to be provided by parents for their children is determined according to their capacity to provide financial support and, in particular, that parents with a like capacity to provide financial support for their children should provide like amounts of financial support; and
b)that the level of financial support to be provided by parents for their children should be determined in accordance with the costs of the children; and
c)that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings; and
d)that children share in changes in the standard of living of both their parents, whether or not they are living with both or either of them; and
e)that Australia is in a position to give effect to its obligations under international agreements or arrangements relating to maintenance obligations arising from family relationship, parentage or marriage.
[11] See Assessment Act at s.4(1)
The objective that the level of child support, payable by parents for their children, should be readily determined is, at least in part, achieved by the application of the child support formula to the circumstances of the parents concerned.
The formula itself is informed by regular statistical research, undertaken by agencies of the Australian Government, relating to the actual costs of provided for children, within the context of wages paid to average salary earners within Australia.
The intention of the legislature is that the formula should be transparent and provide fairly for the financial support of children, based on an objective assessment of their needs. The formula is also intended to be responsive to the care provided, by separated parents, for their children.
Pursuant to section 25 of the Assessment Act, separated parents, of a child living in Australia, may apply to the Registrar of the Child Support Agency for an administrative assessment to be made in respect of the child concerned.
In this particular case, Ms Benson applied for an administrative assessment of child support, for X, which commenced on 11 February 2011. As previously indicated, it seems clear that there have been a number of administrative departures, from the relevant administrative assessment for child support for X, from time to time. In addition, the assessment has changed as Mr Benson’s income has changed, particularly when he changed his employment from (employer omitted) to (employer omitted).
In spite of the good intentions of the Australian Government, the application of the child support formula remains controversial, particularly amongst separated parents. In addition, the potential for human circumstances to throw up situations not readily anticipated by the various child support formulae, created by the legislation, remains infinite.
In these circumstances, the legislature has created a process, through which a person aggrieved by any administrative application of the formula, in any of its intricacies, may apply to the Registrar of the Child Support Agency to depart from that formula. However, this right of review is only available in certain stipulated circumstances.
The grounds for an administrative departure are set out in Part 6A of the Assessment Act, primarily in section 98C. This section provides three basic criteria, which must be satisfied, before the Registrar may decide to depart from an administrative assessment of child support.
In the first instance, the Registrar must be satisfied that one, of a number of stipulated grounds for departure, is satisfied. Amongst other things, these grounds including the following: any special needs of the child concerned; the manner agreed upon by the parents of educating the child concerned and the financial implications flowing from any such agreement; and, relevantly in this case, the income, property, financial resources or earning capacity of a parent, which is not properly reflected in any child support assessment arising.
Secondly, the Registrar must be satisfied that it is both just and equitable, as regards the child, the carer of the child and the parent liable to pay child support, to depart from the applicable administrative assessment and thirdly and finally, it is otherwise proper to do so.
Again, although I have not been provided with all the details, it appears to be the case that both parties have pursued their rights under Part 6A of the Assessment Act. These departure applications have related to the motor vehicle lease issue and assertions that the applicable assessments have not properly reflected the parties’ incomes and, in the case of Ms Benson, her income earning capacity.
In addition, there is a further right of review. Pursuant to provisions contained in the Collection Act, a person may lodge an objection, with the Registrar of the Child Support Agency, to any decision arising from the departure process, which is created by Part 6A of the Assessment Act.
Lawyers categorise this objection process as being an independent but internal method of administrative review. The objections process is mandated by section 80 of the Collection Act.
Thereafter, any person who remains aggrieved, following this objection process, may further appeal to the SSAT pursuant to the provisions of section 110B of the Collection Act. The process of appeal to the SSAT provides a de novo hearing process. That is the SSAT is authorised to gather evidence and make findings of fact.
Pursuant to section 88 of the Collection Act, the SSAT is directed to provide a mechanism of review, of child support decisions, which is fair, just, economical, informal and quick. Lawyers categorise the SSAT process as being an independent and external source of administrative review.
It is only in limited circumstances that an appeal can be successfully lodged, with the court, from a child support decision of the SSAT. Pursuant to section 110B of the Collection Act, the only appeal to the court, from a decision of the SSAT, arises in respect of a question of law.
That is an appellant, in a decision from the SSAT, must satisfy the court that a jurisdictional error has occurred in respect of the application, by the SSAT, of any applicable legal principle.
Accordingly, an appeal on a question of law is different in nature from the de novo hearing process provided by the SSAT, as it is only in limited circumstances, that the court, in such an appeal process, is able to make findings of fact.
Again, in the present case, it is clear that both Mr Benson and Ms Benson have exercised their rights of review by the SSAT in respect of child support issues pertaining to X. In addition, Ms Benson has exercised her right of appeal to this Court in respect of one decision of the SSAT. This appeal remains outstanding.
In summary, the legislature has provided a process for the administrative review of child support decisions, involving two separate levels of review within the Child Support Agency itself, which culminates in an external appeal process, involving the gathering of evidence and the making of any prerequisite findings of fact, under the auspices of the SSAT. The fundamental underpinning of the regime being that it is cheap to access; informal; yet remains fair.
Fundamentally, the review process, in respect of child support decisions, is to be largely quarantined from any judicial involvement. It is only when the review process become vitiated through legal error that judicial oversight becomes available to correct such error. This level of oversight arises at the end of the process rather than at any initial or intermediary stage.
The regime, as outlined, is informed by the legislature’s desire that issues relating to the financial support, to be provided by parents, for their children, should be readily determined, without the need for those parents to have resort to court proceedings, which have the potential to be expensive, both in financial and emotional terms. In this regard, reference is again made to the objects of the child support regime as outlined in section 4(2) of the Assessment Act.
Ms Benson’s application, in respect of child support, can be summarised as follows:
·Between November 2012 and June 2013, Mr Benson’s annual rate of child support be set at $12,973.00;
·Future payments of child support be indexed by reference to the consumer price index;
·Credits in respect of non-agency payments be removed from any applicable child support assessment;
·She be reimbursed the sum of $4,000.00 in respect of these non-agency payments;
·Child support be assessed from the date of separation until her date of application for child support in 2011;
·Mr Benson provide child support to cover 50% of X’s education expenses.
All of these departure applications are expressed to arise pursuant to section 117 of the Assessment Act.
Some of these applications are easily dealt with. It is inappropriate that child support payments be subject to CPI changes. The administrative formula recognises such changes.
In my view, it is also inappropriate for this court, in this round of proceedings, to deal with matters arising in respect of the contentious and long standing issue regarding of how Mr Benson’s payment of the lease payments on the Mercedes motor vehicle should be dealt with, given these matters are subject to an appeal from a determination of the SSAT.
In addition, I do not believe that I am authorised, in effect, to back date an application for an administrative assessment of child support to the date the parties separated. There is no child support assessment for the period from July 2010 until February 2011, accordingly there can be no departure from it.
This leaves Ms Benson’s application to depart apparently from the assessment for the period from November 2012 to June 2013 and to factor into future child support assessments some recognition of X’s educational expenses.
Pursuant to section 117(1) of the Assessment Act an applicant for departure from an administrative assessment of child support must satisfy three pre-conditions before such a departure order is made. They are as follows:
·An applicant must establish one or more of the grounds for departure as specified in section 117(2);
·Thereafter the court must be satisfied that it is just and equitable to make a departure order;
·The court must then be satisfied that it is otherwise proper to make a departure order.
If the three conditions as set out in section 117(1) are satisfied then the court may make the departure order sought. However, there is a further significant proviso to any departure application, namely special circumstances must be demonstrated to exist.
In theMarriage of Gyselman[12] the Full Court of the Family Court said as follows, in respect of the phrase special circumstances:
“Whilst it is not possible to find with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something that is special or out of the ordinary, that is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases.”
[12] In the Marriage of Gyselman (1992) 15 FamLR 219 at 225
In Savery & Savery[13] Kay J held that:
“Special circumstances” [were] facts peculiar to the particular case which set it apart from other cases.”
[13] Savery & Savery (1990) FLC 92-131
Amongst the grounds for departure, specified in section 117)(2) of the Assessment Act are the following:
·The applicable administrative assessment does not reflect the income, earning capacity, property and financial resources of one or other of the parents concerned;
·The manner in which any applicable child is being educated as a consequence of the expectation of the child’s parents.
At this junction, it is difficult to see that Ms Benson has demonstrated any special circumstance in the current case. Certainly, in my assessment, there is a paucity of evidence in regards to the issue of child support. There is no dispute that Mr Benson is a PAYG tax payer. His employment circumstances do not appear to be unusual.
In addition, at this stage, there is no evidence before me regarding what are X’s likely educational expenses and what expectations, if any, the parties had in respect of how he was to be educated.
However, these considerations alone are not the end of the matter. Ms Benson has instigated these proceedings in the light of her dissatisfaction with the outcome of the property proceedings between her and Mr Benson, which were concluded in July 2012. She has, in effect, tagged these proceedings onto her other applications for a review of those orders pursuant to section 79A and for spousal maintenance.
Section 116 of the Assessment Act prescribed the applicable criteria, which must be satisfied, before a parent can apply to the Court for a departure application. As previously indicated, parents, both liable and caring parents, have recourse to administrative departure provisions, within the Child Support Agency itself and externally to the SSAT. As previously indicated, I am uncertain as to whether the parties have exhausted these remedies. Section 116 reads as follows:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a) all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii) an objection to the refusal has been lodged;
(iii) the Registrar has disallowed the objection; or
(aa) all of the following apply:
(i)a decision has been made in respect of the administrative assessment;
(ii) an objection to the decision has been lodged;
(iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab)the SSAT has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(b)both of the following apply:
(i)the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c)in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
On the basis of the evidence currently available to me, I am not satisfied that it would be in the interests of Mr Benson for the court to consider Ms Benson’s application for departure application in the context of the other proceedings brought by her.
I am concerned that such an approach has the capacity to be fundamentally unfair to him. In addition, it seems to me to be more appropriate that, wherever possible, issues of child support be determined administratively. In Provis & Wharton[14] I said as follows:
As previously indicated, in my view, the various provisions to which reference has been made, eschew the involvement of the court, in the application of the child support formula to parents, except in circumstances closely prescribed by the legislature.
The rationale for the exclusion of the court, from the process of review, is readily explicable in light of the objects as outlined in section 4 of the Assessment Act. Court proceedings, regarding child support assessments, should be the exception rather than the rule. This is particularly so, since the inauguration of the external level of appeal, in child support matters, provided by the SSAT.
The instigation of appeals to SSAT, in child support matters, was part of a wide ranging reform of the child support system inaugurated by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (the “Reform Act”). The SSAT is intended to be a specialist tribunal, dealing with child support matters, in preference to a court such as this one.
The relevant portion of the Explanatory Memorandum, published in support of the Reform Act, indicates that it:
…introduces review by an internal external body, the Social Security Appeals Tribunal, of child support decisions which have been reviewed under the Child Support Agency’s internal review procedure. The purpose of introducing this is to provide external review mechanism which is faster, less formal and less expensive than court action, while still providing just and fair outcomes. …It is an inquisitorial, rather than an adversarial process, which may assist in reducing tensions between separated parents when resolving child support issues.
…
Parents…may appeal a decision of the SSAT to a court on a question of law. Parents can still appeal to the courts, in a number of situations. These are applications about the making of assessments requiring parentage declarations, applications to terminate an agreement, applications for child support in non-periodic form. Applications for urgent child support pending the making of an assessment, and applications for a departure in some limited circumstances, such as where the decision is too complex to be finalised administratively, or the applicant seeks to vary a child support assessment from more than 18 months ago.[15]
[14] Provis & Wharton [2013] FCCA 1854 at paragraph 60-67
[15] See Explanatory Memorandum at page 89
The important matter to note, in my view, is that departure applications are to be heard by the court in what are categorised as being limited circumstances, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair.
In addition reference is made to the expense, for parents, of utilising court procedures and for the potential of court cases to add a further level of irritation, in what are often already inflamed parental relationship.
It is in this context that section 116 of the Assessment Act must be considered. This section also has had its most recent genesis in the reforms initiated the Reform Act of 2006. Again, in my view, it is instructive to have regard to the relevant Explanatory Memorandum.
The relevant portion reads as follows:
Because the SSAT will be established in order to review many matters…direct applications to the court will be limited…the person must first go through the internal review process…[however]
… if there are other matters before the court that involve one or the other of the parents, for example family law or bankruptcy matters, then the parent can ask the court also to consider the child support matter, without first going through internal review. The court may consider whether to hear the child support matter together with the other matter. If the court chooses not to hear the child support matter, the parent must go through the internal review processes.[16]
[16] Ibid at pages 140-141
These comments appear to be apposite to the current proceedings. For all these reasons, I propose to dismiss the portion of Ms Benson’s application dealing with child support issues.
Spousal maintenance
Ms Benson’s application’s for spousal maintenance was instigated some years after the parties separated and a few months after she had entered into final property orders, which had conferred upon her a cash sum in excess of $200,000.00. The relevant order was characterised as one to which section 77A of the Family Law Act applied, so far as the sum of $22,000.00 was concerned.
Ms Benson now seeks a capitalised sum of spousal maintenance, in the amount of $109,200.00, to cover a period of three years. Mr Benson opposes this application and seeks an end to the parties’ financial relationship with one another, apart from issues to do with the ongoing financial support of X.
The legal principles applicable to both issues to do with the division of marital property, following marriage breakdown and ongoing spousal maintenance are set out in Part VIII of the Act. The provisions are complicated and there is some overlap between issues of property settlement and spousal maintenance.
Mr Benson and Ms Benson are divorced. A divorce order was made by this court on 27 September 2012. The obligations of former spouses to support one another financially are limited. In particular, pursuant to section 81, the court is required, as far as practicable, to make orders that will finally determine the financial relationship between parties and avoid further proceedings between them.
The Full Court of the Family Court has described the preferred approach to the resolution of matrimonial property cases as follows:
·Identification and valuation of the property of the parties;
·Identification and evaluation of contributions to the property – the contribution stage – section 79(4)(a) – (c);
·Identification and assessment of the various factors in section 79(4)(d) – (g) including to the extent they are relevant the matters in section 75(2) – the prospective needs phase;
·Considerations of justice and equity.[17]
[17] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 and Bevan & Bevan [2013] FamCAFC 116 at [60]
Section 75(2) is headed as follows: Matters to be taken into consideration in relation to spousal maintenance. Thereafter, there is a list of considerations, including such matters as the age and state of health of each of the parties; their income, property and financial resources; their capacity for employment; and whether either of them has the care of a child of the marriage under the age of 18 years.
Accordingly, the process of division of matrimonial property encompasses a consideration of the future needs of the parties concerned in the context of maintenance. Spousal maintenance is not necessarily a separate or discrete issue for the court. In this context, Mr Benson points to order (3) of the orders of 10 July 2012, which in the context of a final property settlement between the parties, alludes to the provision of a specific sum of money as being spousal maintenance for Ms Benson from him.
Section 77A provides that when a court makes an order for the payment of a lump sum of money, by one spouse to another, in property proceedings, it is required to specify the portion of that payment which is attributable to the provision of maintenance.
Accordingly section 77A has two purposes. Firstly, to distinguish between a spousal maintenance order and an order for an alteration of property interests. Secondly, to ascribe a pecuniary value to a spousal maintenance order so that any Commonwealth authority can properly determine the eligibility for a spouse for an income tested social security benefit.
In these circumstances, it would appear to be Mr Benson’s position that it is axiomatic that he has provided spousal maintenance for Ms Benson and it would be neither reasonable nor proper for the court to entertain a further application for spousal maintenance for Ms Benson, particularly as the parties are now divorced.
Pursuant to section 74(1) of the Family Law Act, the court is authorised to make whatever order, it considers proper for the provision of maintenance. Accordingly questions of propriety are germane to issues of spousal maintenance.
However specifically, the power is governed by the provisions of section 72(1), which stipulates that a party to a marriage is liable to maintain the other party, only to the extent that is reasonable and only if the other party is unable to support himself or herself adequately by reason of having the care of a child of the marriage under the age of 18 years or as a consequence of physical or mental incapacity for paid work. These criteria are to be considered in the light of the matters listed in section 75(2), if relevant.
The Full Court has determined that the discretion contained in section 74 is to be exercised with reasonableness in the circumstances as the guiding principle.[18] Accordingly, in determining whether to entertain Ms Benson’s application for a further award of cash to be made in her favour, following the settlement of the earlier proceedings instigated by her, the court must consider both the objective circumstances and their propriety.
[18] See Bevan & Bevan (1995) FLC 92-600 at 81,898(1) –(2)
In all the circumstances of this case, I do not consider it would be proper to make any award of spousal maintenance, in Ms Benson’s favour. On the settlement of the parties’ competing applications for property settlement, she received a significant sum of capital. From Mr Benson’s perspective, a component of this was specifically referrable to his former wife’s ongoing financial support.
In all these circumstances, it does not appear to me to be reasonable that Ms Benson should be allowed to pursue Mr Benson further for spousal maintenance. It seems to me that the major motivating factor, for Ms Benson’s application for spousal maintenance, is that her perception of the outcome of the property proceedings was unfair to her.
Conclusions
As she is entitled to, Ms Benson has represented herself throughout these proceedings. Her application is to be categorised as a scatter gun approach, in which she has sought to secure a further payment of money from Mr Benson, through whatever mechanism the court deems applicable, be that by way of further property order, spousal maintenance order or child support departure. However, her true motivation is her perception that the end of the marriage between the parties has left her hard done by.
I have done my best to consider all these various applications within the overall circumstances of the case. I am satisfied that Mr Benson resolved the property proceedings in July 2012 in good faith. From his perspective, this was the end of his financial relationship with Ms Benson, apart from ongoing issues in respect of the financial support of X, which fell within the domain of the Child Support Registrar.
Ms Benson was represented at the hearing of July 2012, albeit at the last moment. This however, was her choice. I am satisfied that these proceedings were fair and were not characterised by any lack of candour or disclosure on Mr Benson’s behalf. In terms of what I know of the case, the settlement reached was a just and equitable one. It incorporated a significant component attributable to Ms Benson’s ongoing financial support.
It is regrettable that Ms Benson now feels let down by her legal advisors. It is her perception now that she was not “kept in the loop” so far as the process of negotiation was concerned. Whether this is so or not is not possible for me to determine. In any event, it is not my responsibility to determine any complaints Ms Benson may have in respect of her legal advice. My responsibility is to decide whether the settlement reached was negotiated on a “level playing field”. I am satisfied that it was and there has been no miscarriage of justice within the parameters envisaged by section 79A(1) of the Act.
I am further satisfied that it would not be proper, in all the circumstances of the case, for there to be a further award of spousal maintenance made in Ms Benson’s case, given the structure of the consent orders made in July of 2012. In addition, for the reasons outlined above, Ms Benson has not satisfied the legislative criteria required to support a court initiated departure from the applicable administrative assessment of child support.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and ninety-two (192) paragraphs are a true copy of the reasons for judgment of Judge Brown
Associate:
Date: 25 June 2014
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Appeal
-
Costs
-
Jurisdiction
-
Remedies
4
4