Blanchard & Blanchard
[2009] FamCA 321
•30 April 2009
FAMILY COURT OF AUSTRALIA
BLANCHAND & BLANCHAND [2009] FamCA 321
FAMILY LAW – CHILD SUPPORT ASSESSMENT – application for departure order – periodic and non-periodic payment – jurisdiction and power – stay of proceedings and adjournment pending appeal – principles and their application
Child Support (Assessment) Act 1989 (Cth) ss 99, 115 (repealed), 116(1), 116(1)(b)(i) and (ii), 117(1)(a) and (b), 118
Gallo v Dawson (1990) 93 ALR 47
Jennings Construction Limited v Burgundy Royal Investments Pty Ltd (No. 1) (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
Lightfoot v Hampson (1996) FLC 92-663
Reid & Reid (1999) FLC 98-007
Tormsen & Tormsen (1993) FLC 92-39
Cooper Brookes (Wollongong ) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297
APPLICANT: Mr Blanchand
RESPONDENT: Ms Blanchand
FILE NUMBER: SYF 3639 of 2005
DATE DELIVERED: 30 April 2009
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: The Hon. Justice Rose
HEARING DATE: 30 March 2009
WRITTEN SUBMISSIONS: 2 April 2009
6 April 2009
24 April 2009REPRESENTATION
SOLICITOR FOR THE APPLICANT: G. Meredith
GAYLE MEREDITH & ASSOCIATES
COUNSEL FOR THE RESPONDENT: J. Millar
SOLICITOR FOR THE RESPONDENT: BARKUS DOOLAN KELLY Orders
(1) Declare that the Court has jurisdiction to hear and determine the part-heard applications of the wife for orders for departure from the Child Support Agency assessments in relation to the liability of the husband for payment of child support with respect to the 2 children of the marriage.
(2) That the Response to an Application in a Case of the husband filed 26 March 2009 is dismissed.
(3) That there be a stay of proceedings of orders numbered 6 to 10 and 12 made 21 October 2008 pending a determination of the husband’s Appeal in the Full Court or as otherwise ordered upon the following terms:-
(a) That the husband diligently prosecute his Appeal.
(b) That the husband seek the earliest date for hearing of his Appeal regardless of the convenience of his counsel or solicitor.
(4) That the further hearing of the part-heard applications of the wife referred to in Order 1 is adjourned until further order.
(5) That by consent paragraph 6 of the Orders made on 21 October 2008 be varied under the slip rule so that the words “[B] Superannuation Fund (“the fund”)” are inserted in substitution for the words “[M] Super Trust Number […] (“the fund”) as at the date of these orders.”
(6) That by consent there be no Order as to costs in relation to Order 5.
(7) Liberty to apply for directions upon seven (7) days written notice being given.
IT IS NOTED that publication of this judgment under the pseudonym Blanchand & Blanchand is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
FAMILY COURT OF AUSTRALIA AT SYDNEY FILE NUMBER: SYF 3639 of 2005
MR BLANCHAND Applicant
And
MS BLANCHAND Respondent
REASONS FOR JUDGMENT
Introduction
1.In these proceedings, the husband seeks orders that the wife’s part-heard application for orders for departure from the current child support assessment and non-periodic child support (“the applications”) be dismissed for “want of jurisdiction”. In the event that the submissions made on behalf of the husband in that regard are unsuccessful, he seeks an order that the wife’s applications be adjourned “until after the appeal.”[1]
[1] Husband’s Case Outline Document 30.3.2009 paragraph 2.1
2.In addition, the husband seeks a stay of proceedings in relation to orders numbered 6 to 10 and 12 made 21 October 2008 “pending the orders providing for a splitting order for the husband’s superannuation entitlements.”[2] He also seeks an order for costs.
[2] Ibid paragraph 2.2
3.On 21 October 2008, I gave judgment and made orders for property settlement and superannuation splitting (“the orders”) as well as directions in relation to the wife’s part-heard applications for spousal maintenance and child support departure orders. For ease of reference those orders are reproduced as follows:-
“1.That on or before 5.00pm 18 November 2008 the husband sign all documents and do all things necessary to transfer to the wife the whole of his right title and interest in the property situate at and known as [P property] in the State of New South Wales (“the former matrimonial home”) subject to the existing mortgage to the Commonwealth Bank of Australia.
2.That the husband pay to the wife the sum of $176,944.00 on or before 5.00pm 30 January 2009.
3.That pending compliance with Order 2 the husband pay all mortgage instalments, council and water rates, fire and household insurance premiums in relation to the former matrimonial home promptly when they fall due.
4.That upon the husband complying with Order 2 the wife shall be solely responsible for promptly paying mortgage instalments, council and water rates, fire and household insurance premiums and all other outgoings in respect of the former matrimonial home and the wife shall indemnify the husband in relation to any claims or demands which may be made upon him for payment of all or any of such liabilities and expenses.
5.That subject to the Orders made this day declare that each of the parties is the sole beneficial owner of all items of personalty in his or her possession power or control and to the extent that it may be necessary to do so, each of them shall forthwith do all things necessary to transfer to the other the interest that may be held by a party contrary to this declaration.
Superannuation splitting payment
6.That in accordance with s.90MT(4) of the Family Law Act the base amount of $312,168.00 is allocated from the husband’s superannuation benefits to the wife out of the husband’s interest in the [M] Super Trust number […] (“the fund”) as at the date of these Orders.
7.That in accordance with s.90MT(1)(a) of the Family Law Act whenever a splittable payment becomes payable in respect of the interest of the husband in the fund the wife is entitled to be paid the amount (if any) calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount as at the operative time and there shall be a corresponding reduction in the entitlement of the husband towards the splittable payment which would have been made but for these Orders.
8.That pursuant to Order 7 the operative time is the fourth business day after the day on which a sealed copy of the Orders made this day are served on the trustee of the fund (“the trustee”).
9.That the trustee for the fund and the husband in accordance with the obligations set out under the Family Law (Superannuation) Regulations 2001 and the Superannuation Industry (Supervision) Act 1993 and the Superannuation Industry (Supervision) Regulations 1994 shall do all such acts and things and sign all such documents as may be necessary to calculate the entitlement of and make payment to the wife in accordance with these Orders.
10.That having been accorded procedural fairness Orders 6 to 9 herein binds the trustee to observe the requirements of the Family Law Act and the Family Law (Superannuation) Regulations 2001.
Spousal maintenance and child support assessment departure proceedings
11.That the applications of the wife be listed for mention and directions on a date and time to be fixed.”
4.The wife originally sought child support departure orders in accordance with paragraph 28 of her Amended Application for Final Orders filed 9 March 2007 (“the Application”). That application also sought parenting orders and orders for property settlement. Subsequently, the parties settled the parenting proceedings. As is apparent from Order 11 of the orders, I directed that the part-heard applications of the wife for spousal maintenance and child support assessment departure “be listed for mention and directions on a date and time to be fixed.” I did so for reasons given in paragraphs 144 to 151 of the Judgment. In the Judgment I had expressed my regret at the delay in delivery of judgment in the circumstances referred to in paragraph 4 of the Judgment. The background to that delay should be completed by reference to the lack of an application by either party to re-open his or her case due to any change in relevant financial circumstances or for any other reason.
5.On 5 November 2008, I made an order “That the wife’s applications for spousal maintenance and child support departure orders are fixed for hearing at 10am 23 January 2009”. That was the earliest mutually convenient date following enquiries made in that regard by my Associate. Directions were made for the filing and service of Minutes of Orders Sought, Updated Financial Statements, Affidavits of Current Relevant Matters, Case Outlines and Lists of Authorities.
6.On or about 10 December 2008 I was informed that the wife’s application for spousal maintenance had settled and an agreement entered into
7.On 19 January 2009, I acceded to the joint application of the parties that the hearing fixed to take place on 23 January 2009 be vacated and that a new date and time be fixed for hearing, namely 11am 30 March 2009. Accordingly, delay has occurred at the behest of the parties which I had sought to minimise by fixing the earlier date for hearing. No reasons were given by the parties. Further directions were made requiring the husband to file and serve his Affidavit and material on which he seeks to rely and his Statement of Financial Circumstances by 20 February 2009 and that each party file a Case Outline document by 25 March 2009.
8.The husband did not comply with the directions. No reasons for non-compliance were given to me and/or my Associate so far as I am aware. Ultimately, on 2 March 2009 he filed his Affidavit filed 27 February 2009 and his Application in a Case on the same date. That application has been summarised earlier in this judgment.
9.The wife was granted leave unopposed to amend the applications, firstly in accordance with Exhibit 4 and then subsequently as set out in Exhibit 12. The orders so sought were amended further in accordance with her “Amended Minute of Orders to be Sought by the Wife at Hearing on 30 March 2009.” That document was filed on 20 February 2009 and is in the following terms:-
AND THE COURT ORDERS PURSUANT TO SECTION 124 OF THE CHILD SUPPORT (ASSESSMENT) ACT 1989 BY WAY OF DEPARTURE
2. That the husband:
2.1pay or cause to be paid to the wife or as she may direct in writing on behalf of the children [N] and [J] both born […] September 1993 by way of periodical child support the sum of $600 per week.
2.2pay or cause to be paid all school fees incurred by the husband and the wife in respect of each of the children from the date of the making of the Order until the date each child respectively leaves secondary education and such fees shall mean and include all tuition fees, reasonable excursion fees, incidental sporting costs, the costs of school books, school uniforms and reasonable extra-curricular activities.
3. In relation to the children’s medical expenses:
3.1.1.the wife pay or cause to be paid and keep paying as and when same fall due, all instalments at the existing scale to HCF including cover for private hospital, optical, physiotherapy, dental and orthodontic expenses in respect of the children;
3.1.2.The wife as soon as practicable provide to the husband a health insurance card for the children’s health insurance (if available from HCF) and do all acts and things necessary to authorise HCF to deal with claims made by the husband on the children’s behalf;
3.1.3.should the wife receive any payments from HCF in relation to claims made by the husband for expenses he has incurred on behalf of the children, the wife shall promptly refund the amount wrongly received from HCF to the husband; and
3.1.4.the husband shall as and when same fall due, pay any orthodontic and other medical expenses incurred in respect of the children not able to be recovered from HCF, including by way of refund to the wife in relation to any such expenses she has incurred and paid.
10.At the commencement of the hearing on 30 March 2009, the solicitor for the husband informed me that his application for leave to file a Notice of Appeal in relation to the orders out of time had been heard on 20 February 2009 and judgment was reserved.
11.Succinct oral submissions were made by the solicitor for the wife and Counsel for the husband in relation to the issue of jurisdiction. I made directions for the lodgement and service of more extensive written submissions on behalf of the husband and wife on or before 1 April 2009 and 6 April 2009 respectively. Those directions have been complied with.
Jurisdiction and Power
12.Section 99 of the Child Support (Assessment) Act 1989 (“the Act”) confers jurisdiction on this Court and the other courts specified “in relation to matters arising under this Act.”
13.Division 4 of the Act contains the provisions in relation to “orders for departure from administrative assessment in special circumstances” (departure orders). The following sections are contained in Division 4.
14.Section 116(1) provides that a liable parent or a carer entitled to child support may apply for a departure order subject to the conditions precedent referred to in that section applying.
15.Section 117(1) provides that a discretionary power to made a departure order provided that the Court is satisfied in relation to the matters set forth in subsection (1)(a) and (b).
16.Section 117(2) provides the grounds for departure.
17.Section 118 identifies the different orders that may be made under Division 4.
18.Division 5 of the Act provides for “orders for provision of child support otherwise than in the form of periodic amounts paid to carers.”
19.Section 122 makes it clear that Division V applies where an application is made to provide child support “otherwise than in the form of periodic amounts”.
20.Section 123 provides for the specific application that may be made “for non-periodic child support”. The conditions precedent are also set out in subsection 2.
21.Section 124(1) makes provision for the discretionary power to make an order for non-periodic child support.
Section 116
22.The provisions of this section are critical given the issue raised in relation to jurisdiction and power in the context of the Application and Exhibit 12 to which previous reference has been made.
23.There is no issue that the wife as an applicant falls within the description given in section 116(2).
24.Section 116(1) sets out a number of conditions precedent to an application that may be made pursuant to that subsection. Section 116(1)(b) contains the following relevant provisions so far as the Application and Exhibit 12 are concerned:-
“(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 career 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; …”
25.Consequently, for the purpose of determining whether or not the wife’s applications are properly before the Court at the time the applications were made, I am required to make findings that the wife as the unchallenged “carer entitled to child support” or the husband as “the liable parent” is a party to a pending application. In addition I must also make findings that I am satisfied in relation to the matters specified in section 116(1)(b)(ii) to which I have referred.
26.I refer to those matters against that background that I need to be satisfied that the Court has jurisdiction under the Act for the purpose of sections 116(1) and 116(1)(b)(i) and (ii) given that I am required to determine “matters arising under this Act” in accordance with section 99.
27.Detailed and well prepared submissions have been made on behalf of each of the parties, supplemented by brief oral argument advanced when the proceedings were before me on 30 March 2009 prior to such written submissions being made.
28.In support of the submissions made on behalf of the husband in the husband’s case outline document,[3] reliance has been placed upon the provisions of section 116(1)(a) which relate to the Registrar having refused to make a relevant determination; an objection to the refusal having been lodged which was subsequently disallowed. However, it is clear from the provisions of section 116(1)(a)(iii) that the provisions to which I have referred represent a basis for hearing the applications as an alternative to subsequent provisions in the subparagraphs of section 116(1). I accept that if section 116(1)(a) represents the only basis upon which the applications may be made, then the applications would have to be dismissed as the provisions of section 116(1)(a) have not been fully engaged.
[3] Lodged 30 March 2009
29.On behalf of the husband I was referred to the judgment of the Full Court in Reid & Reid.[4] The issue before the Full Court was whether or not at first instance the orders made granting the departure from administrative assessment were made without jurisdiction. Whilst there were pending proceedings in relation to the subject child, an issue had arisen as that application was not being heard at the same time as the departure application. There also had not been a Review Officer’s determination of a review. The Full Court’s judgment in Reid considered the application of the provisions of section 115(b) and (c) of the Act which have been repealed since the judgment was given. It is important however to consider those provisions and their differences, if any, compared to the current section 116(1)(b)(i) and (ii). The repealed section 115(b) and (c) provided as follows:-
[4] [1999] FamCA 699
“(b)where the child support is for a period beginning on or after 1 July 1992 and the Registrar has, on application made under section 98B, either made or refused to make a determination under Part 6A in relation to the child; or
(c)where the child support is for a period beginning on or after 1 July 1992 and:
(i)the carer entitled to child support or the liable parent is party to an application pending in a court having jurisdiction under this Act; and
(ii)the court is satisfied that it would be in the interest of the carer and the parent for the court to consider, at the same time as it hears that application, whether an order should be made having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to the children in the special circumstances of the case.
30.It is clear that there are material differences between the repealed section 115(c)(ii) and section 116. The former required the Court “to consider, at the same time as it hears that application” whether or not a departure order should be made. The reference to “that application” is an application pending in the Court. However, there is no such requirement contained in section 116 that it is mandatory to give consideration to the prospect of hearing an application for a child support assessment departure order being made “at the same time” as the Court hears a pending application.
31.In Reid, the Full Court held that the appeal from the first instance order providing for departure from a child support assessment be allowed on the ground that there was an absence of jurisdiction to make the order as there was no other application to be heard at the same time as the application for the departure order. In that regard, the repealed section 115(c) did not apply.
32.On behalf of the husband it was submitted that the Full Court’s judgment in Lightfoot v Hampson[5] is relevant. As is made clear by the headnote, the Court is required to hear and determine an application under Part 7, Division 4 of the Act before hearing an application under Division 5. In addition it was held that a combination of Division 4 with section 141 provides the Court with a wide power to make a departure order so far as the form of that order is concerned which is not confined to periodic orders and may include inter alia orders for a lump sum.
[5] (1996) FLC 92-663
33.With regard to Division 5, Lightfoot v Hampson is also authority for the proposition that it is “essentially a substitution provision and is not an independent source of power to make a child support order.” None the less, it can lead to an increase of the total liability of the liable parent by the indirect path provided in section 125, that is, on the basis of satisfaction of “special circumstances justifying a non-credit against all or any part of the existing assessment in the course of making a substituted non-periodic order.”[6] The Court further considered whether departure applications previously made represented “applications pending” within the meaning of the repealed section 115(c) and concluded that inferentially the answer was in the affirmative.
[6] ibid
34.In addition, it was further submitted on behalf of the husband that so far as the current assessment was concerned, the wife was advised to make an application to the Registrar followed by an objection and then if necessary seek a review of the decision as the wife is not a party to a pending application before the Court.
35.On behalf of the husband it is submitted that at the time of the commencement of the substantive hearing on 3 September 2007 each of the parties sought orders in relation to child support. Section 116 applied. Both parties were parties to an application pending in the Court which had jurisdiction under the Act. It is implicit that each of the parties had an expectation that the Court would be satisfied that it was in the interests of the parties and the liable parent and the carer entitled to child support for consideration to be given as to whether or not an order should be made. That represented an acknowledgement of the condition precedent being fulfilled as set forth in section 116(1)(b)(ii).
36.It is submitted for the reasons given that the child support proceedings are simply part-heard as they were adjourned on 21 October 2008 and directions made for the filing of further evidence.
Conclusion
37.In considering the interpretation and application of the provisions of sections 116(1) and 116(1)(b)(i) and (ii) it is important to not lose sight of the unchallenged facts so far as the hearing of the applications and the previous applications for orders for property settlement and spousal maintenance which were heard on a consolidated basis, as well as the chronology of orders sought by the parties.
38.The Initiating Application was that of the wife filed 2 August 2005. In that application, the wife sought parenting, property settlement, superannuation splitting and spousal maintenance orders as well as injunctive relief.
39.The husband’s Response filed 22 August 2005 sought parenting and property settlement orders as well as dismissal of the wife’s spousal maintenance application.
40.The husband’s Amended Response filed 15 February 2006 also sought parenting and property settlement orders as well as dismissal of the wife’s spousal maintenance application.
41.The wife’s Amended Application filed 9 March 2007 continued to seek parenting, property settlement, superannuation splitting and spousal maintenance orders as well as injunctive relief. However, the wife also sought child support departure orders as accurately repeated in paragraph 2 of the written submission filed on behalf of the husband on 6 April 2009. The orders so sought included child support on a periodic basis by monthly payment as well as payment of school fees and expenses and medical expenses of the children.
42.An affidavit of the husband and his Financial Statement, both filed on 27 August 2007 provided evidence of relevant child support assessments made in 2007.
43.The trial commenced before me on 3 September 2007 and continued, so far as the evidence was concerned, on 4 and 5 September 2007. Written submissions were subsequently lodged and served. I heard evidence in relation to all of the applications of the parties as set out in their respective Amended Application and Amended Response to which I have referred, subsequently amended by the orders sought by them in the following Exhibits.
44.Exhibit 3 included a minute of orders sought by the husband, filed in court on 3 September 2007. He sought orders for child support departure which I summarise as including a proposed liability of the husband that he pay periodic child support as may be assessed by the child support agency from time to time; half of the children’s private school fees and expenses; payment by him of the children’s HCF private health cover premiums and that the parties pay equally all medical, dental and orthodontic expenses in relation to the children not recoverable from Medicare and HCF.
45.Exhibit 4 included a minute of orders sought by the wife in relation to child support departure and was filed in court on 4 September 2007. The wife sought orders pursuant to section 124 that the husband be liable for the husband’s private school fees and expenses as well as all medical expenses and HCF medical insurance premiums for them.
46.Exhibit 12 includes a minute of child support departure orders sought by the wife filed in court on 5 September 2007. The orders so sought provided for the husband to be liable for payment of the children’s private school fees and expenses and all of their medical expenses.
47.Senior Counsel for the husband provided written submissions dated 26 September 2007, lodged on 27 September 2007. The submissions in relation to child support departure solely related to the merits based on the evidence given. No point of law was raised in terms of jurisdiction or power.
48.I accept the submission made on behalf of the husband that the Act provides an administrative review system of the assessment of child support carried out by reference to formula and that as a general proposition it cannot be bypassed by an application to the Court. However, section 116(1)(b)(i) and (ii) provide the statutory provisions for the Court’s jurisdiction to be attracted.
49.I have concluded that there is jurisdiction to complete the part-heard hearing of the applications for the following reasons.
50.At the commencement of the hearing on 3 September 2007, each of the parties were parties to an application pending in the Court which had jurisdiction under the Act. Their applications sought orders as previously described. Indeed, the husband as well as the wife sought child support assessment departure orders. That situation did not change at the conclusion of the evidence, nor when judgment was given and orders for property settlement were made on 21 October 2008. In the interim, written submissions were made by counsel. I have referred to those submissions. It was implicit from the written submissions made by senior counsel for the husband that there was no issue in relation to the applicability of sections 116(1) and 116(b)(i) and (ii), as no doubt submissions would have been made by him had that not been the case.
51.I had a concern that I should have further evidence for the reasons given in paragraphs 146, 148 to 150 of the judgment. I referred to the lack of any application by the husband or indeed the wife to re-open his or her case so that evidence of those matters could be adduced having regard to regrettable delay which had occurred in giving judgment subsequent to the written submissions having been lodged. Accordingly, directions were made by me which I have earlier referred.
52.In the event, the parties reached agreement in relation to the wife’s outstanding spousal maintenance application. That left the applications pending on a part-heard basis.
53.It is important not to overlook that pursuant to section 116(1) the subject applications may be made to this Court which has jurisdiction under the Act “in the special circumstances of the case” upon the establishment of the matters referred to in section 116(1)(b). When the applications were made, section 116(1)(b)(i) applied. There was never any submission to the contrary on behalf of the husband. Indeed, it followed that it was considered on his behalf that those statutory provisions applied as amongst other things, he himself sought child support departure orders.
54.It was also never an issue that I should reach a conclusion other than in accordance with section 116(1)(b)(ii). No submission to the contrary was made.
55.The only relevant event that has occurred is that the outstanding application of the wife for an order for spousal maintenance was settled and consent orders made on about 10 December 2008. That left for determination the part-heard applications. I do not accept that the Court lacks jurisdiction simply because all other previous applications of the parties for different relief have been determined. The critical timing is that pursuant section 116(1) the applications were made at the time that “the liable parent or carer entitled to child support” was “a party to an application pending.”[7] The ordinary reading of section 116(1) and 116(1)(b) does not support the proposition that the Court loses jurisdiction once previously pending applications for different relief have been determined, notwithstanding that such applications were pending at the critical time namely when the applications the subject of this judgment were made by the wife. If that were not the case then I would have expected that Parliament would otherwise have legislated. The case for the husband in these proceedings would have the implication that no other pending application for different relief should be determined by way of judgment and order or pursuant to a consent order before an application for child support departure was determined. That would result in an absurdity for obvious reasons. In my view it would provide an ironic and negative outcome to the positive construction of section 116(1) inconsistent with the principles of statutory interpretation.[8] Section 116(1) provides a purpose or object of enabling a liable parent or carer entitled to child support to make an application in respect of an administrative assessment of child support provided that one or other of the basis for “special circumstances of the case” have been established at that time. I am satisfied that it would be in the interests of the parties to consider the making of an order referred to in section 116(1)(b)(ii). The reasons are that the parties have been engaged in their litigation since during 2005 with a hearing followed by judgment and orders in relation to property settlement and superannuation splitting on 21 October 2008. Notwithstanding that they had resolved issues between them in relation to parenting orders and spousal maintenance, the legal costs that they have incurred have been undoubtedly substantial. Each of them contends that there have been changes in their financial circumstances of recent times. I infer that each has also experienced significant emotional pressure not only as a result of the completed proceedings, but also the ongoing proceedings in relation to child support assessment departure and proceedings instituted in the Full Court. I have also taken into account the interests of the parties in relation to their children who are likely to have been affected by the parental conflict as well as the ongoing uncertainty in relation to payment of private education expenses.
[7] Section 116(1)(b)(i)
[8] The Acts Interpretation Act 1901 (Cth) section 15AA; Cooper Brookes (Wollongong ) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 319-323 per Mason and Wilson JJ (including; inter alia, “rules of common sense”)
56.As I have earlier stated, I do not accept the submission that Reid supports the husband’s case. I am concerned with the interpretation of section 116(1) rather than the repealed section 115 with its material differences. I also do not accept that the observations contained in the judgment of Boland J delivered 3 April 2009 are persuasive. The issues for determination by Boland J were whether an extension of time should be granted to file a Notice of Appeal from the Orders and whether an order for indemnity costs or otherwise should be made. So far as the former is concerned, the applicable principles are as stated by McHugh J in Gallo v Dawson[9] and as set out by the Full Court in Tormsen & Tormsen.[10] Those principles and the application of them were the subject of the judgement that was given by Boland J. With respect, the observations in relation to review of a child support assessment could only have been obiter as those observations were not relevant to consideration of the principles for extension of time for the lodgement of a Notice of Appeal, particularly as the applications for child support departure were and are part-heard. Presumably the observations were made merely by way of a consideration of the overall litigation between the parties.
[9] (1990) 93 ALR 479
[10] (1993) FLC 92-392
Stay of proceedings
57.By his Application in a Case filed 2 March 2009 the husband seeks a stay of proceedings in relation to orders numbered 6 to 10; and 12 made 21 October 2008. The latter order required return of documents produced on subpoena. The other orders were in relation to superannuation splitting payments.
58.I have concluded that a stay of proceedings will be granted as sought for the following reasons.
59.On 3 April 2009, the husband was granted an extension of time to file a Notice of Appeal. In the event that a stay is denied, it may be impractical to restore the status quo due to change in financial aspects of superannuation entitlements. I accept that the judgment given on 3 April 2009 that included the opinion that one or more of the proposed grounds of appeal has merit. Whether the appeal is likely to succeed is of course a matter for the Full Court.
60.The husband has complied with Orders for property settlement. I also accept the evidence explaining the delay by the husband which resulted in him having to make application for an extension of time to appeal. A refusal to grant a stay may cause financial hardship to the husband given the evidence of the adverse change in his financial circumstances. Whilst there may also be financial hardship caused to the wife, I am satisfied that the balance of convenience lies in favour of granting the stay as sought. However, I will do so on terms that require the husband to diligently prosecute the appeal and to seek the earliest date for hearing of the appeal regardless of the convenience of his counsel or solicitor. That will alleviate to some extent the ongoing financial uncertainty affecting each of the parties to which they have deposed in their respective affidavits and delay subsequent to the Orders made 21 October 2008. In providing those Reasons, I have taken into account the established principles governing a stay of proceedings pending an appeal.[11]
[11] Kelly & Kelly (1981) FLC91-007; Jennings Construction Limited v Burgundy Royal Investments Pty Ltd (No. 1) (1986) 161 CLR 681 at 685
Adjournment of the proceedings
61.I have determined that there will be an adjournment of the applications as sought by the husband. My reasons for doing so are that depending upon the Full Court’s judgment, the financial circumstances of the parties may materially alter by comparison with the findings made in the judgment delivered on 21 October 2008. As referred to earlier in this judgment, the husband deposes to adverse changes in his financial circumstances subsequent to the orders made on 21 October 2008. Ironically, his proposed Notice of Appeal annexed to his affidavit sworn 27 February 2009, which includes 16 grounds of appeal, does not include the ground of fresh evidence which one might have considered would be relied upon having regard to the alleged changes in financial circumstances to which I have made reference. Nonetheless, I am prepared to assume in favour of the husband that such a ground may be sought to be relied upon by him after advice has been sought and obtained from suitable counsel.
62.I have also taken into account the proposed stay of proceedings pending the appeal.
63.I will make an order granting liberty to apply for further directions upon 7 days written notice being given so that if the proceedings are to continue before me then directions can be made for that purpose upon short notice.
64.By letter dated 31 March 2009 under the letterhead of the wife’s solicitors and signed by the solicitors for the parties orders are sought by consent pursuant to the slip rule. These orders will be made.
65.I assume that the solicitors for the parties will furnish them with a copy of this judgment. I urge them to renew negotiations for an ultimate compromise in relation to the outstanding issues taking into account the changes in their financial circumstances which are contended to have occurred subsequent to 21 October 2008. In addition, they should consider the reasonable needs of their children, not to mention the likely significant legal costs that each will incur should the appeal proceed to a hearing and the part-heard applications of the wife require determination, with no doubt further preparation and affidavits likely to be required. The legal costs so incurred, excluding costs already incurred to date subsequent to 21 October 2008, may well be put to greater benefit for the parties and their children including payment of a significant portion of ongoing private education expenses at the current schools. It may assist the parties in their deliberations if they instruct their legal representatives to provide them with a written estimate of the likely ongoing legal costs including counsel’s fees which they may incur.
I certify that the preceding sixty-five (65) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose.
Associate:
Date: 30 April 2009
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