BRIVIO & BRIVIO
[2019] FamCA 151
•18 March 2019
FAMILY COURT OF AUSTRALIA
| BRIVIO & BRIVIO | [2019] FamCA 151 |
| FAMILY LAW – COSTS – Where application by husband for interim costs order – Where discussion of applicable principles – Where order for interim costs in sum of $50,000.00 made. FAMILY LAW – SPOUSAL MAINTENANCE – Where application by husband for interim spousal support – Where consideration of applicable principles – Where Court not satisfied that husband unable to support himself adequately – Where application dismissed. FAMILY LAW – ADULT CHILD MAINTENANCE – Where application by husband for adult child maintenance – Where at final hearing child now living with wife – Where application dismissed. FAMILY LAW – INJUNCTIVE RELIEF – Where interim application by husband for injunctions restraining wife from dissipation of her assets – Where only basis for application was husband’s “concern” – Where consideration of applicable principles – Where application dismissed. FAMILY LAW – CHILD SUPPORT DEPARTURE – Where application by husband for child support departure – Consideration of the purposes of the statutory child support – Where consideration of section 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) – Where application dismissed. |
| Family Law Act 1975 (Cth) ss 66L, 72, 74, 75(2), 114, 117, 118 Child Support (Assessment) Act 1989 (Cth) ss 4, 116 |
| Bagala & Bagala [2009] FMCAfam 953 Beklar & Beklar [2012] FamCA 894 Bevan & Bevan (1995) FLC 92-600 Collins and Collins [1985] FamCA 15; (1985) FLC 91-603 Gyselman (1992) FLC ¶92-279 Harris & Ellis [2011] FamCAFC 90 Penfold v Penfold (1980) FLC 98-800 Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 Sheahan (1993) FLC ¶92-375 Waugh & Waugh [2000] FamCA 1183 |
| APPLICANT: | Mr Brivio |
| RESPONDENT: | Mr Brivio |
| FILE NUMBER: | PAC | 2925 | of | 2018 |
| DATE DELIVERED: | 18 March 2019 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Foster J |
| HEARING DATE: | 17 September 2018 and 19 February 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Batey |
| SOLICITOR FOR THE APPLICANT: | Scarf Family Law |
| COUNSEL FOR THE RESPONDENT: | Mr Gould |
| SOLICITOR FOR THE RESPONDENT: | E & A Lawyers |
Orders
That within 14 days from this date the wife pay to the husband, or as he may otherwise direct in writing, the sum of $50,000.00 by way of interim costs with the ultimate characterisation of such sum reserved to final hearing.
That, otherwise, the husband’s applications for interim spousal maintenance, adult child maintenance, injunctive relief and child support departure be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brivio & Brivio has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 2925 of 2018
| Mr Brivio |
Applicant
And
| Mr Brivio |
Respondent
REASONS FOR JUDGMENT
The issues for determination relate to interim orders sought by the applicant wife and the respondent husband.
On 28 June 2018 the applicant wife filed an Initiating Application seeking orders that, in summary, provided:
a)That the wife transfer to the husband her interest in the former matrimonial home at Suburb T.
b)That in consideration of such transfer the husband pay to the wife “such sum as is necessary to adjust the parties respective interests in the total net pool of assets excluding superannuation in the wife’s favour as to 60 per cent and in the husband’s favour as to 40 per cent.
c)Various implementation and enforcement orders.
d)That there be a splitting order in favour of the wife as to 50 per cent of the husband’s superannuation entitlement in the Super Fund 1.
In his Response filed 3 August 2018 to the wife’s Initiating Application the husband sought final property orders that provided for a division of the matrimonial asset pool as to 60 per cent to the husband and as to 40 per cent to the wife.
Otherwise, in his Response the husband sought various interim orders, in summary, as follows:
a)That the wife pay to the husband by way of spouse maintenance the sum of $2,000.00 per week pending further order.
b)That there be a departure order in relation to the child support assessment issued by the Child Support Registrar for the child X born in December 2001 to provide that the wife pay to the husband child support in an amount of $640.00 per week for the said child and that the wife pay and continue to pay all school fees and extracurricular activities and uniform and sports charges for the child continuing attendance at B school.
c)That the wife pay to the husband by way of adult child maintenance the sum of $1,100.00 per week for the adult child Mr Y born in 1996.
d)That the wife be restrained from reducing the credit balance in bank accounts in her name with D Bank and the E Bank without first providing to the husband 28 days’ written notice of intention to do so.
e)That the husband forthwith have exclusive occupation to the exclusion of the wife of the former matrimonial home at Suburb T.
f)That the wife pay as they fall due and payable all mortgage payments, council rates, water rates, insurances, strata levies and any land tax for the home unit property at Suburb G.
g)That the wife caused to be paid to the husband’s solicitors on account of the husband’s legal fees and disbursements in relation to these proceedings the sum of $50,000.00 or in the alternative that the wife pay within seven days of any payment by her of legal fees to her lawyers a similar amount to the husband’s lawyers with the characterisation of such payments reserved to final trial.
h)That pending further order the wife be restrained from selling, disposing, assigning or further encumbering her interest and entitlements in Family Trust 1, Family Trust 2, Trust 4, her interest and entitlements in any other undisclosed trust including any other financial resource, her interest in any deceased estate, any shares held by her either in her own name or any entity in which she has an interest and her interest in any real property whether in her own name or in any entity in which she has an interest.
On 14 September 2018 the wife filed a Response to the interim orders sought by the husband. In that Response the wife sought orders, in summary, that provided:
a)That the application for interim orders by the husband be dismissed.
b)That within 14 days the husband and wife do all things necessary to list for sale and sell the property at Suburb G and that the proceeds of sale be paid to discharge the mortgage encumbrance secured thereon, in payment of legal costs and selling expenses in payment of any outstanding outgoings in relation to the property then as to $75,000.00 to the wife and $75,000.00 to the husband and that the balance be held in a controlled monies account by the wife’s lawyers on behalf of the husband and wife pending further order.
c)That pending sale of the Suburb G property the husband indemnify the wife from all or any liability arising from any mortgage repayments and outgoings in relation to the property including taxes.
d)That pending sale of the Suburb G property the husband be restrained from further encumbering the said property without the written consent of the wife.
e)That pending further order the husband indemnify the wife from all or any liability arising out of mortgage payments and outgoings including taxation and duties relating to the Suburb T property.
f)That within seven days the husband cause his solicitor to deliver to the wife’s lawyers an index of the wife’s documents removed by the husband from the Suburb T property currently held by his solicitors and the original of every document in that index.
The wife did not press her interim application for sale of the former matrimonial home.
The interim issues between the parties were listed for hearing on 17 September 2018. On that day orders were made by consent, without admissions and pending further order that the husband have exclusive occupation of the former home at Suburb T and that the wife shall not without invitation of the husband or court order enter into the dwelling thereon.
Otherwise, the matter proceeded by way of written submissions. The wife was ordered to file written submissions in relation to interim issues by no later than 28 September 2018 with the husband’s submissions in response by no later than 5 October 2018 with judgment thereafter reserved.
Subsequently, the wife sought leave to reopen her case. That application was not opposed and on 3 December 2018 orders were made as follows:
(1)The parties have leave to reopen their respective cases in regard to the issues for interim hearing.
(2)The father file and serve any further affidavit material to be relied upon by him in support of the orders sought by him including an affidavit in support of his application by the adult child, Y, by no later than Friday, 18 January 2019.
(3)The mother file and serve any further affidavit material to be relied upon by her in support of the orders sought by her by no later than Friday, 15 February 2019.
(4)The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Friday, 15 February 2019.
(5)The interim applications for determination be adjourned part-heard to the judicial duty list at 10.00 am on Tuesday, 19 February 2019.
(6)The parties’ costs of and incidental to the proceedings today be reserved.
Context
In the context of the interim hearing, the husband relied upon his affidavit filed 3 August 2018 and his financial statement filed 3 August 2018 and his further affidavit filed 18 January 2019.
The wife, for the purposes of the interim hearing, relied upon her affidavit filed 12 September 2018 and her financial statement filed 14 September 2018 and her further affidavit filed 15 February 2019.
The wife is presently 51 years of age and the husband 54 years of age.
The husband and wife commenced cohabitation at the time of their wedding in 1994.
There are three children of the marriage, Mr Y, aged 22, Mr Z, aged 19 and X, aged 17.
The parties separated in January 2018 at which time the wife left the matrimonial home at Suburb T. The wife presently resides in rented accommodation at Suburb C and the husband continues to reside in the former matrimonial home at Suburb T.
The wife’s evidence
There are no parenting orders in place in relation to the child X who spends time with each parent as she wishes. As to the other adult children Mr Z resides with the wife and Mr Y appears to divide his time between the two parents’ homes or with friends.
There is presently a child support assessment in place that requires the wife to pay child support to the husband in relation to the child X. The wife’s current child support assessment is at the rate of $350.49 per week for the period commencing 1 September 2018 to 30 June 2019. It appears that neither party has applied for a review of the administrative assessment of child support. The child spends varying time between both households.
At the time of cohabitation the wife was employed as a health professional and did additional part-time work as a sports coach. Following the birth of the first child the wife did not return to full-time paid work.
The husband during the party’s cohabitation remained in full-time employment in various sales and management positions and in the 2017 financial year had an income of about $218,000.00 per annum. The wife asserts that his various positions involved long working hours and frequent business-related travel that limited the husband’s time within the home to assist with homemaker and parenting responsibilities.
The children Y and Z had significant learning and behavioural issues although both children continued their education through to year 12. The wife asserts that she had significant engagement in assisting the children with their educational obligations and requirements.
The wife asserts that the husband had significant anger management issues during the relationship that impacted adversely on herself and the children and made her role within the home even more arduous. The wife asserts that she sought counselling and professional help and as a consequence of trauma during the marriage she suffers from post-traumatic stress disorder. This issue will require determination at final trial.
The wife concedes that in the later years of the marriage she suffered from alcohol abuse that made it all the more difficult to undertake her significant role in the household and with the children. She, otherwise, was engaged in the administration of a family trust, the Family Trust 1and the testamentary trust arising out of the estate of her late grandfather, the Family Trust 3.
The wife says that on separation a significant quantity of her personal documents including documents relating to the administration of her extended family affairs were left at the matrimonial home. There appears to have been significant conflict between the parties immediately post separation resulting in the husband excluding the wife from the matrimonial home by changing the locks.
Upon the wife obtaining independent accommodation, the adult child Mr Z moved to live with her with the adult child Mr Y spending about half his time at the wife’s residence. The wife sees the child X on average three to five days per week but the child would usually return to the Suburb T home in the evenings to sleep after she has dinner with the wife and does her homework.
The adult child Mr Y was diagnosed with ADHD and more recently with borderline personality disorder. He has an ongoing engagement with his treating psychiatrist. Mr Y has had significant behavioural issues including self-harming behaviours that necessitated ambulance attendance and hospital admission. More recently he has confided in the wife that he has been using illicit drugs. The wife has, through F Hospital, sought assistance for the child for his personality disorder and she maintains private health cover for the adult child. It is the wife’s hope that the Mr Y will return to his university studies. Both parents are actively engaged in his care and intervention for his mental health issues. Mr Y was spending time at both parents’ houses that appears to have no regular pattern and in accordance with his wishes from time to time.
On 10 January 2019 the adult child Mr Y spoke to the wife after receiving correspondence from the father’s solicitors dated 9 January 2019 seeking instructions from him in relation to the present application for adult child maintenance. He expressed his dismay at being involved in the proceedings and said he did not want to be.
As and from mid-January 2019 the adult child Mr Y has resided full time with the wife after driving to the wife’s home in his car. He expresses concerns and fears for the husband’s behaviour towards him. To the wife’s observation the child has been more calm and settled in her household and has continued his engagement with his mental health professionals.
The adult child Mr Z has been diagnosed with ADHD and generalised anxiety disorder. Mr Z has ongoing counselling with a psychologist and is on medication. Mr Z was accepted into university for 2018 but deferred his studies. He is presently is in part-time employment at a local business. Mr Z appears to be well settled primarily in the wife’s household and has commenced university studies.
The wife asserts that she continues to make significant payments in relation to all children including private health cover, any gap payments for medical appointments whilst the children are in her care, prescription medication costs, groceries and food, household utility costs, accommodation, clothing and footwear, sundry expenses and mobile phone and data charges. In addition the wife says that she pays private school fees for the child X together with expenses for books and educational expenses and the child’s extracurricular activity costs. The payment of such fees would appear to be non-agency payments that the wife may seek to have offset against any periodic child support obligation assessed against her. Such is a matter for application and administrative assessment.
Following separation the wife has paid funds totalling $61,000.00 into the parties’ joint bank account together with a further sum of $10,000.00 into the husband’s Visa credit card account.
The wife receives monthly distributions of $6,000.00 from Family Trust 1 and otherwise she receives various dividend payments and interest payments arising from her investments.
During cohabitation the wife’s distributions from Family Trust 1 and the husband’s income together with rental income from the parties’ property at Suburb G were paid into the parties’ joint bank account.
Family Trust 1
This trust was established by the wife’s paternal grandfather in 1976. The current trustee and appointer of the trust is J Pty Ltd. The wife is a director of the trustee company, the other director is the wife’s sister Ms H. During the parties’ cohabitation the wife received regular distributions from the trust. From April 2016 these distributions have been in the sum of $6,000.00 per month.
The wife’s father Mr S died in 2015. Probate of his estate was granted to the wife in 2016. The wife has a one third interest in the rest and residue of that estate.
The assets of Family Trust 1 comprise cash at bank of about $66,500.00 and significant holdings of publicly listed shares. The wife’s sister is solely dependent upon her income from the trust.
Family Trust 2
The wife asserts that this trust is associated with her mother’s financial affairs. She has received no distributions from the trust nor is she aware of the trust having any assets of value.
Family Trust 3
This trust relates to the estate of the wife’s paternal grandfather who died in 1992. The wife received a small bequest of $5,000.00 from her late grandfather’s estate. Apart from other legacies the rest and residue of the estate was divided as to one half on trust for the wife’s father as to income derived therefrom during his lifetime and thereafter to be divided between the wife, her sister Ms H and the surviving child of her late brother in equal shares. The estate was fully administered following the wife’s father’s death in 2015.
The wife’s interest from the estates of her late father and her late grandfather in all totalled about $402,000.00.
Financial Contributions
During the period of the parties’ cohabitation the wife received significant funds from the sources referred to above together with in 2004 a loan of $325,000.00 from her mother. Those funds she asserts were held in her various accounts and used for the parties’ living expenses and expenses for the children.
Asset Pool
The wife asserts that the parties’ asset pool has a non-superannuation value of just over $4 million with the only significant liability being the mortgage secured over the Suburb G property of about $430,000.00. The significant real estate assets of the parties include the matrimonial home at Suburb T having an estimated value of $1.8 million and the investment property at Suburb G having a value of about $670,000.00. Otherwise, there are various assets comprising personalty bank accounts and publicly listed shares. Otherwise the husband’s superannuation interest has a value of about $1.4 million. The wife, otherwise, has a financial resource being her beneficial interest in Family Trust 1.
The husband’s income
The wife asserts that in August 2017 the husband took leave from his employment as a consequence of issues arising from his employment. In November 2017 the husband received a severance payment of about $41,600.00 that was paid into the parties’ joint bank account.
The wife says that in February 2018 after separation the husband informed her that he had no intention of looking for employment and considered himself the primary carer of the children.
The wife asserts that the husband has demonstrated historically a capacity to earn a significant income from various senior management and/or sales positions.
The wife’s income
The wife’s income comprises substantially her monthly distribution from Family Trust 1. She has not worked in full-time paid employment since the birth of the first child. She is presently enrolled in further education seeking to obtain qualifications in allied health care. She expects that her studies will complete sometime in 2019. She presently undertakes some part-time paid work. That position is non-ongoing. She proposes to seek full-time work once her studies are completed.
Otherwise, the wife’s income comprises bank interest, share dividends and managed fund distributions totalling about $500.00 per week.
The husband’s evidence
The husband makes various assertions as to financial dealings of the wife’s late father based, it appears, on various historical documents that have remained in his possession. None of his assertions appear to have any forensic value in terms of the present matters for determination.
The husband asserts that he left his employment in November 2017 due to concerns for the welfare of the family and the wife’s deteriorating alcohol dependency.
He blandly asserts that he has no current capacity (mental or otherwise) to obtain appropriate gainful employment due to him being the full-time carer for the children X and Mr Y and at times Mr Z. He offers no evidence supporting that a bland assertion other than some evidence as to what he asserts to be his daily routine in relation to the children and the household. There is no evidence supporting the supposed contention that his presence is necessary. The child X is 17 years of age. He offers no evidence as to any efforts by him to obtain full-time or indeed even part-time employment to provide for his own needs in circumstances where he remains in sole use and occupation of the parties’ matrimonial home that is unencumbered.
The wife’s evidence is to the contrary that, indeed, he is not the full-time carer of any of the children.
The husband acknowledges that prior to the birth of the first child the wife was in employment as a physiotherapist and has not returned to that employment since. He asserts that the wife’s distributions received from Family Trust 1 are about $9,350.00 per month although no documentary evidence is produced in support of that contention.
Assets
The husband asserts that the non-superannuation asset pool has a value of about six million. The substantial difference between his assertion as to the value of the pool and that asserted by the wife is that he includes in the pool what appears to be the wife’s entitlement to the capital value of Family Trust 1.
He asserts that he has funds at bank and public company shares totalling in all more than $100,000.00. Otherwise, he has personal assets including motor vehicles and boats having a total value, he says, of about $50,000.00.
The adult child Mr Y he says in 2017 enrolled at university but following the parties’ separation in early 2018 the child has suffered ongoing depression and exhibited self-harm and suicidal behaviour. Notwithstanding this the husband says that in March 2018 Mr Y was again at university but struggling to meet the demands of his study.
The adult child Mr Y had previously been employed part-time in retail and held other employment at a local business. He asserts that since separation the adult child has spent a substantial portion of time within his household. There is no evidence from Mr Y as to his inability or otherwise to obtain employment. Nor is there any evidence from the adult child Mr Y as to his financial needs.
The husband otherwise expresses concerns in relation to the other adult son Mr Z, but acknowledges that the adult child remains residing primarily with the wife.
Spouse Maintenance
Section 72 of the Family Law Act 1975 (Cth) (“The Act”) sets out the relevant provisions in relation to the right to spouse maintenance. The Court can make such order as it considers proper (s 74).
Section 72 provides that a party to a marriage is liable to maintain the other party to the extent that the first mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether:
a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
b)by reason of age or a physical or mental incapacity for appropriate gainful employment; or
c)for any other adequate reason;
having regard to any relevant matter referred to in subsection 75(2) of the Act.
In Redman and Redman [1987] FamCA 2; (1987) FLC 91-805 at 76,081 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) said:
As Nygh J said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts “not as final or exhaustive a hearing as would be the case if one were hearing the matter finally”: Williamson and Williamson [1978] FamCA 57; (1978) FLC 90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.
There is no fettering principle that the pre-separation standard of living must automatically be awarded and reasonableness in the circumstances is the guiding principle (see Bevan & Bevan (1995) FLC 92-600).
The relevant matters in s 75(2) need to be considered.
The parties’ ages are referred to above and neither asserts any adverse health issues.
The parties’ property and financial resources as best can be determined are referred to briefly above. The husband has immediately realisable assets of not insignificant value should he choose to remain out of the workforce.
The husband has both the physical and mental capacity for gainful employment and has demonstrated such for many years over this long relationship. The wife asserts a need to retrain for good reason but, otherwise, is in receipt of a significant income stream from a trust and her investments.
The parties are at odds in relation to the living circumstances of the child under the age of 18, that is X, but there remains a child assessment in place. The wife contends that she is actively engaged in the child’s circumstances each week with the child spending some nights at her home but perhaps the majority of nights in the husband’s home.
Otherwise, one adult child of the marriage Mr Z, now at university, resides primarily with the wife, and the other Mr Y now living with the wife full-time.
The husband has a significant entitlement to superannuation benefits that cannot be accessed until he reaches the appropriate retirement age.
It appears the parties enjoyed a reasonable standard of living and at present the husband remains in occupation of the parties’ most valuable asset; the matrimonial home that is unencumbered.
Neither party is cohabiting with another person.
The wife has a present child support liability in relation to the child X and asserts that she is making payments accordingly together with other significant payments relating to the child.
The husband does not assert incapacity for employment by reason of mental or physical incapacity. The Court is not satisfied that he is unable to support himself by reason of his care of the child X who is 17 years of age. It appears he has simply chosen to cease employment in the circumstances that flowed from the parties’ separation. He adduces no evidence as to incapacity for part-time employment nor any evidence as to attempts to obtain employment at all.
In all the circumstances the Court is not satisfied that the husband has demonstrated that he is unable to support himself adequately by reason of the circumstances contemplated in s 72 of the Act. His application for interim spouse maintenance by way of periodic payments or payment of property outgoings will be dismissed.
Child Support Departure
As the Full Court said in Harris and Ellis [2011] FamCAFC 90:
20.There are two ways to seek a departure from an administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) (“the Act”). The Child Support Registrar can make a departure determination under Part 6A (on the application of the payer or the payee, or on the Registrar’s own motion). Alternatively, on the application of the payer or the payee, certain courts can make a departure order pursuant to Division 4 of Part 7.
21.The Registrar may make a departure determination, and a court may make a departure order, if satisfied that one of the grounds for departure referred to in s 117(2) of the Act exist. The orders that may be made by a court on hearing an application for a departure order are set out in s 118 of the Act.
22.The procedure for seeking a departure determination from the Registrar under Part 6A of the Act is comparatively simple. The Registrar can, however, refuse to make a determination if the issues are “too complex”, in which case the Registrar may recommend that an application be made to a court for a departure order. This is the effect of s 98E (and see also the similar provision in s 98R which concerns an application for a departure determination initiated on the Registrar’s own motion).
23.There have always been limitations on the circumstances in which a party can apply to a court for a departure order. Those limitations were significantly amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the Reform Act”).
24.The major difference following the commencement of the amendments made by the Reform Act was the requirement for a party aggrieved by a decision of the Agency to seek a review from the Social Security Appeals Tribunal (“the SSAT”), rather than applying to a court for a departure order. A party aggrieved by a decision of the SSAT may appeal to a court, but the right of appeal is restricted to questions of law: Child Support (Registration and Collection) Act 1988 (Cth) s 89 and s 110B.
……
26.Following the commencement of the amendments made by the Reform Act, the limitations on making an application for a departure order are to be found in s 116 of the Act, which is expressed in the following terms (my emphasis added):
S 116 Application for order under Division
(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:
…
(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).
The husband relies on s 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) for jurisdiction in relation to his departure application.
The objects of the Child Support (Assessment) Act 1989 (Cth) are set out in s 4, and in particular, the relevant sections are ss (1) and (2)(c):
4 Objects of Act
(1)The principal object of this Act is to ensure that children receive a proper level of financial support from their parents.
(2) Particular objects of this Act include ensuring:
...
(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...
As was observed by Riethmuller FM (as he then was) in Bagala & Bagala [2009] FMCAfam 953:
20.Section 4(2)(c) of the Act seeks to have child support matters settled without recourse to the Courts, thus avoiding needless expense for the parties and using court resources that might otherwise be utilised. There have been two sets of significant amendments to the scheme, each further advancing the object of providing an inexpensive administrative system for review of child support assessments. The first was the introduction of the departure process under part 6A of the Act, allowing for administrative departures from child support assessments. The second change was providing for objection rights following Part 6A decisions, and the third significant change provided for review by the SSAT. All of these changes were driven by considerations of access to justice, and the reality that the costs of legal proceedings are almost invariably greater than the amount of money in dispute in child support cases, placing great hardship of applicants and undue pressure on respondents to settle to avoid the disproportionate costs of litigation. Thus, a well-developed informal administrative system has been developed.
The expression ''special circumstances'' was considered by the Full Court in Gyselman (1992) FLC ¶92-279 at p 79,065. The Court said:
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which 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. ... In Savery’s case [(1990) FLC ¶92-131] (p 77,897), Kay J. ... said that:
‘‘Special circumstances'' were ''facts peculiar to the particular case which set it apart from other cases''.
In Sheahan (1993) FLC ¶92-375 the Full Court said at p 79,884 that the ''relevant facts of the particular case must be considered to determine whether they constitute special circumstances which ... if not taken into account, would result in injustice or undue hardship to any person''.
The present financial circumstances of the parties as asserted by each of them are set out above.
In all of the circumstances and concomitant with the objects of the child support legislation, it is appropriate that the administrative procedure follow its statutory pathway, in particular, in the context of this interim application where the evidence of the parties and their respective financial circumstances in particular the husband’s capacity for employment cannot be tested by cross examination.
There are no special circumstances in this matter that give rise to the Court being satisfied that it is in the interests of both the husband and wife for the Court to entertain the present departure application nor would they suffer undue hardship or injustice if they were left to pursue the administrative review process.
Accordingly, the interim application for child support departure will be dismissed.
Adult Child Maintenance
Section 66L of the Act provides:
Children who are 18 or over
(1)A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary
(a) to enable the child to complete his or her education; or
(b)because of a mental or physical disability of the child.
The court may make such a child maintenance order, in relation to a child who is 17, to take effect when or after the child turns 18.
(2)A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary:
(a) to enable the child to complete his or her education; or
(b) because of a mental or physical disability of the child.
(3)…
The evidence of the husband and that of the adult child’s treating mental health practitioner is such that the Court accepts that Mr Y has a significant ongoing mental health disorder.
Mr Y’s mental health practitioner in early July 2018 was of the opinion that in the “short term” the adult child is likely to need continued support and care from his family.
At present the evidence appears that Mr Y receives support from the wife alone as he has placed himself in the wife’s household since 19 January 2019.
The husband has the obligation to adduce evidence in support of the “necessity” for such an order. The necessity for the order as sought is not made out. The application will be dismissed.
Injunctions
The husband seeks injunction in the terms set out above.
The applicable law is found in s 114 of the Act, and the Full Court decisions in Waugh & Waugh [2000] FamCA 1183. The Full Court of the Family Court identified "the fundamental question" as being "whether there was any evidence of an intention ... to dispose of any assets pursuant to any scheme to defeat any judgment which ... might be obtained in the substantive proceedings".
The husband’s only evidence in support of such an order is his bland assertion as to his “concern” that the wife “may” dispose of assets.
It is trite to say that injunctive relief as sought by the husband needs more than just concern. Such application will be dismissed.
Interim Costs
Section 117(1) of the Act is the basic provision concerning costs and provides the general rule that subject to s 117(2), s 117AA and s 118, each party to proceedings under the Act shall bear his or her own costs.
Section 117(2) requires a finding of justifying circumstances as an essential prerequisite to the making of an order for costs (Penfold v Penfold (1980) FLC 98-800).
If there are circumstances that justify it in so doing, the Court may make an order for costs pursuant to s 117(2) as the Court considers just.
In considering what order, if any, should be made, regard must be had to the provisions of s 117(2A) to the extent each is relevant. The considerations are:
a)the financial circumstances of each of the parties to the proceedings;
b)whether any party has legal aid and the terms of any grant of aid;
c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answers, questions, admissions of facts, production of documents and similar matters;
d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the Court;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
g)such other matters as the Court considers relevant.
In Collins &Collins [1985] FamCA 15; (1985) FLC 91-603 (at 79,877), the Full Court described the discretion conferred by s 117 as being a “broad” one and held that the factors set out in s 117(2A) are not to be read in a restrictive way.
The husband asserts that he has diminished financial capacity to meet his ongoing legal costs whereas the wife has a demonstrable capacity to meet her legal costs from her significant investments and cash at bank.
The wife has substantial cash or cash equivalent assets from which she can meet a modest costs order in favour of the husband.
As summarised by Ryan J in Beklar & Beklar [2012] FamCA 894:
[31]In relation to future legal expenses, whether pursuant to s 74 or s 117(2), in Strahan & Strahan [2011] FamCAFC 126; (2011) FLC 93-466 per Boland and O’Ryan JJ at [96] the Full Court referred with approval to remarks made by Brereton J in Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578 as follows:
... in addition to the three matters described in Zschokke, where the order was made pursuant to either s 74 or s 117 of the Act:
· an applicant should have “at least an arguable case for substantive relief which deserves to be heard”: Chester v Chester (1995) FLC 92-612 (“Chester”) at 82,107 per Moss J;
· there should be evidence of the applicant’s “likely costs of the litigation”: see Wilson and Chester;
· “it is not an essential precondition” that the applicant’s legal representatives will not continue to act unless the costs are paid or secured on an ongoing basis: Columb and Columb (unreported, Family Court of Australia, Fogarty J, 27 November 1987); see however Coomes and Coomes [1995] FamCA 103; (1995) FLC 92-558 per Cohen J;
· an order may “make a provision for litigation expenses at a rate that appears reasonable in all the circumstances”;
· an order can be made “in respect of costs already incurred as well as of future costs”;
· “whether the order is to be in respect of costs already incurred or costs to be incurred, and whether the applicant’s lawyers will continue to act in the absence of provision for costs to be incurred, may be relevant to the discretion to make an order, and its’ quantum”;
· “any such order should be framed to protect the parties from any risk of injustice arising from the manner in which the funds are expended” and this may be done “by requiring that the funds be administered solely by the applicant's solicitors and applied only to meet the expenses referred to in the order, with detailed records being maintained to permit review by the Court at the time of the exercise of its discretion in the substantive property proceedings or on the final determination of the issue of costs”: Breen.
[32]Reference to the three matters referred to in Zschokke and Zschokke [1996] FamCA 79; (1996) FLC 92-693, is to:
· a position of relative financial strength on the part of the respondent;
· a capacity on the part of the respondent to meet his or her own litigation costs;
· an inability on the part of the applicant to meet his or her litigation costs.
[33]These are not preconditions but, where they exist, add considerable weight to the case for an order of this type. Strahan [90].
In the present application the husband has a substantive application before the Court for a property adjustment order although inelegantly expressed.
The parties have a significant property pool acquired during the relationship and the wife has significant financial resources in addition thereto.
The husband has given evidence of the likely legal costs he will incur. They appear reasonable in the circumstances of this matter.
It is patent that the wife is in a superior financial position to that of the husband in terms of readily available assets. She has significant cash funds available to meet a modest payment to the husband’s solicitors on account of her costs.
In the circumstances of this matter an order for the payment of $50,000.00 only is appropriate and proper.
Such payment will meet the husband’s outstanding costs and provide a fund to meet some anticipated costs of his proceedings.
Ultimately, the characterisation of the payment in the overall scheme of proceedings will be reserved to final trial. An order will be made accordingly.
I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 18 March 2019.
Associate:
Date: 18 March 2019
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