Bridges and Bridges
[2011] FMCAfam 1288
•13 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BRIDGES & BRIDGES | [2011] FMCAfam 1288 |
| FAMILY LAW – Application to enforce orders for adult child maintenance. |
| Family Law Act 1975, ss.66R, 66S, 66S(2)(d), 66S(3) |
| In the Marriage of Luckie [1989] FamCA 26 |
| Applicant: | MS BRIDGES |
| Respondent: | MR BRIDGES |
| File Number: | MLC 13862 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing date: | 28 October 2011 |
| Date of Last Submission: | 28 October 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 13 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Sevdalis |
| Solicitors for the Applicant: | Victoria Legal Aid |
| The Respondent: | In person (assisted by an interpreter) |
ORDERS
That pursuant to s.66S of the Family Law Act 1975 paragraph 1 of the orders of 5 August 2010 be varied as follows:
(a)That on or before 4 November 2011 the respondent pay to the applicant by way of lump sum capitalised child maintenance the amount of $5,486 to be paid into an account nominated by the applicant, being [bank account details omitted.
(b)That orders 3 and 4 of the orders of 5 August 2011 be and are hereby discharged.
In the event the respondent fails to comply with order 1(a) above, the respondent shall forthwith do all things required to transfer to the applicant on trust for sale the 2006 Holden Sedan motor vehicle registration number [omitted] and in the event the said motor vehicle is no longer in the possession or control of the respondent, the respondent forthwith transfer to the applicant on trust for sale the property known and situate at [address omitted].
In default of the Respondent doing all acts and things and executing all such documents as may be necessary to give effect to these orders within 14 days of the date on which the obligation to do so is set under these orders and on the Registrar being satisfied of such failure or neglect or default by the respondent by way of an affidavit, a Registrar of the Federal Magistrates Court of Australia is appointed pursuant to s.106A to execute all such documents in the name of the respondent and to do all such acts and things necessary to give validity and operation to the said orders.
Upon the transfer of the motor vehicle or real property to the applicant pursuant to paragraphs 2 and 3 above, the applicant forthwith sell the said motor vehicle or real property and upon settlement of the sale of the motor vehicle or real property, the proceeds of sale be applied as follows:
(a)First to pay all costs, commissions and expenses of the sale.
(b)Second to pay the solicitors for the applicant the sum of $2,330 together with interest pursuant to the Family Law Rules.
(c)Third to pay the applicant $5,486 together with interest in accordance with the Family Law Rules.
(d)Fourth, pay the balance to the respondent.
The Court specifies that this order is an order to which s.66R of the Family Law Act 1975 applies, that the child for whose maintenance is provided is Ms Bridges and that the whole of the payment to
Ms Bridges is attributable to her maintenance.
Certify for advocacy.
Dismiss all extant applications.
IT IS NOTED that publication of this judgment under the pseudonym Bridges & Bridges is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 13862 of 2007
| MS BRIDGES |
Applicant
And
| MR BRIDGES |
Respondent
REASONS FOR JUDGMENT
This is the latest tranche in litigation I have already described previously as arising from very unfortunate and sad circumstances. On 5 August 2010, I gave judgment in the matter and effectively ordered the respondent father to pay $84.40 per week in adult child maintenance to his daughter until the completion of her first tertiary qualification.
As is clear from a re-reading of my Reasons for Judgment, I was well satisfied that the respondent father was in a position to pay a sum of that order, and I was likewise satisfied that the applicant daughter needed the funds.
I made an order that provided that in the event of default, there be liberty to apply to the applicant in respect of a third party debt notice.
On 2 June 2011, the applicant filed the application now before the Court. Putting the matter shortly, she seeks that the earlier order for periodic payments be replaced by a lump sum order for some 65 weeks to take her through to the end of her degree at [omitted] University, now posited for the end of next year as I understand it.
Ms Bridges seeks that in the event that the father does not pay her the capital sum of $5,486 within a given period of time, a car owned by her father, registration number [omitted], be sold to meet the shortfall or alternatively, that a property in which the father has an interest be sold.
In her affidavit filed in support of the application, Ms Bridges deposes to the fact that her father initially paid the sums ordered by the Court but has essentially ceased to do so. She goes on to depose that her father will not be likely to comply with any Court orders and it is for that reason she is seeking the capitalised sum.
I note that in her financial statement, Ms Bridges’ financial circumstances remain no better than they were. She has income of only $220 per week and pays rent of $80. It is clear that her need for the sums previously assessed remains.
As was the case in the earlier hearing, the respondent father has filed no materials with the Court.
When the matter was called on before the Court, the applicant confirmed that she will finish her course in December 2012, and that she is seeking 65 weeks payment of $84.40 per month in full.
The father, who represented himself with the assistance of an interpreter (his English is extremely limited), was naturally not very able to cross-examine his daughter. As had been the case at the previous hearing, the interchange between him and his daughter rapidly took on the character of a domestic dispute.
Nothing was put to challenge Ms Bridges’ assertions as to her financial circumstances (at least in any detail) and indeed her evidence remained unchanged. A number of documents were tendered by the applicant including exhibit A1, showing a substantial decrease in the mortgage previously owed by the father (in his own evidence, he asserted this was now paid out) and exhibit A2, which appears to suggest that the father’s income is still approximately $600 per week, as it was previously.
When it came to the father’s turn to address the Court, his agitation, already very apparent, increased markedly. At one stage I had to leave the bench to give him an opportunity to compose himself. The transcript will record an unrelenting diatribe against his daughter. Putting the matter shortly, he repeated complaints made in the previous hearing about his daughter’s failure to be a good daughter to him. I regret to say that it is not possible to characterise his diatribe as anything other than a rage-filled series of insults. Amongst other remarks which poured out, Mr Bridges said:
a)She is not my daughter. She is a stranger trying to hurt me;
b)I opened the gates of the world to you. She just demands money;
c)Everyone helped. She just spat at it;
d)She wants her own life and has a boyfriend. Why should I pay;
e)She can quit being a student and sweep streets;
f)If she does not want to be here, she can go back to Poland;
g)I don’t know her. I’ve had enough of her. I wish she would bugger off.
Under cross-examination by counsel for the applicant, the respondent said that his home is owned 50 per cent by him and 50 per cent by his mother and that the mortgage is paid off, although the mortgage is still, as he described it, open. He confirmed that he still has the Holden car [registration omitted]. He said that this was bought with money from his mother. He repeated, “I don’t have a daughter.”
In the face of the vituperation expressed by the father, it is quite clear that the applicant daughter’s assertion that the father has no intention of obeying any Court orders to pay any money is quite correct. He has simply refused to abide by the orders previously made.
Section 66S of the Family Law Act 1975 (“the Act”) gives the Court power to vary orders for the maintenance of a child. Section 66S(2)(d) enables the Court, subject to subsection (3), to vary an extant order:
(ii)in any other way.
Subsection 66S(3) provides relevantly that “the Court must not vary the order so as to increase or decrease any amount ordered to be paid by the order unless it is satisfied … that since the order was made or last varied … the circumstances of the child have changed so as to justify the variation”.
Here, although on one view what is being asked for is not an increase or decrease in the amount but rather its payment in a single lump sum, I am satisfied that Ms Bridges’ circumstances have indeed changed. Previously she had the benefit of an order that she would be paid the sum ordered and although she received it for a brief while through to about November 2010 and intermittently thereafter, the fact is she does not now have that money. It is plain that the Court has power to make the order sought.
Sub-section 66R requires the Court, in the event that it makes an order requiring payment of a lump sum, to express the order to be one to which the section applies and to specify the child for whom it is to benefit. I will do so.
As I have said before, this is a very regrettable case. The extreme dislike that clearly pertains between the daughter and her father is as obvious as it is unfortunate.
I have no doubt that the father could pay the periodic sums ordered and indeed he did so for a period of time in any event. He simply refuses to continue to do so. There is no need for me to revisit my earlier judgment. I am quite satisfied that I was correct to conclude that the applicant ought receive the periodic maintenance she was seeking. She still ought to.
In the circumstances, there will be orders in the form sought by the applicant, save that I will include the necessary orders in respect of s.66R.
Counsel for the applicant drew the Court’s attention to the case of
In the Marriage of Luckie[1989] FamCA 26. In that case, the Full Court of the Family Court made observations about the power to order lump sum maintenance. At [11] the Court said:
“A number of cases decided under the superseded child maintenance legislation were to the effect that save in exceptional circumstances the most appropriate order for child maintenance was a periodic order rather than a lump sum order anticipating a long term future. These decisions include Spano v Spano (1979) FLC 90-707, V. and G. (1982) FLC 90-207, Racine and Hemmett (1982) FLC 91-277 and Vartikian v Vartikian (1984) FLC 91-587. The rationale underlying the general attitude of the court was that it was difficult to predict the long term future and that a lump sum maintenance for a long future period might mean that maintenance had been pre-paid in respect of a time when the circumstances did not justify an order for child maintenance. However, the cases also recognised that there might be particular circumstances justifying the making of a lump sum order to cover future child maintenance.
12. Section 66E(5) makes it clear that the usual and preferable order for the payment of child maintenance is one for periodic payments and that the court is not to consider other methods of payment unless it has first considered the capacity of the party to make periodic payments. …”
I respectfully adopt and support the reasoning of the Full Court in that case. Here, I have already considered periodic payments. It is the failure of those payments to assist the applicant that gives rise to the necessity for a lump sum payment. These circumstances are wholly exceptional in the sense that without them, the applicant will simply not get the benefit of the orders to which she is entitled.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Burchardt FM.
Date: 13 December 2011
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