Callan and Bruen

[2017] FamCA 628

FAMILY COURT OF AUSTRALIA

CALLAN & BRUEN [2017] FamCA 628

FAMILY LAW – CHILD SUPPORT – non periodic payment of private school fees – where the husband was ill and sought an adjournment – where no update material had been filed for six weeks after the case was earlier adjourned – orders made.

Family Law Act 1975 (Cth)

APPLICANT: Ms Callan

RESPONDENT: Mr Bruen

FILE NUMBER: MLC 3447 of 2017

DATE DELIVERED: 22 August 2017

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 18 August 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Strum QC

SOLICITOR FOR THE APPLICANT: Coote Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Szabo

SOLICITOR FOR THE RESPONDENT: Peter Szabo Family Law

Orders

1. That paragraph 2 of the orders made on 6 July 2017 is varied to read “until further order”.

2. That the application seeking child support orders is adjourned to 10.00am on 17 November 2017 as a one day matter.

3. By way of non-periodic child support, the husband is responsible for the outstanding school fees of B School noting that he may make such arrangement for payment as the school so agrees.

4. Any payment pursuant to paragraph 3 of these orders by way of non-periodic payment of child support is not to be offset against any obligation under the assessment of child support.

5. That the costs of the wife this day are reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 Callan & Bruen 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 MELBOURNE

FILE NUMBER: MLC 3447  of 2017

Ms Callan

Applicant

And

Mr Bruen

Respondent

REASONS FOR JUDGMENT

1. These reasons have been prepared and delivered after the orders were made on 18 August 2017. The parties did not seek formal reasons but as the application had to be adjourned and the husband was absent because of illness, I consider an explanation other than by reference to the transcript is necessary.

2. The discrete matter before the Court on 18 August was the wife’s interim application for non-periodic child support.

3. The husband disputed that that application should proceed.

4. The more comprehensive application was before the Court in early July in relation to both periodic and non-periodic child support. It became apparent that the Court could not rely upon the husband’s evidence, in particular, his financial statement. His solicitor conceded as much at the time. That gave rise to the adjournment and an order for indemnity costs but also a determination of the periodic child support issue in the interim. The order made was that it was only to continue until the return date of 18 August.

5. The detail of the July hearing did not necessitate a set of reasons for judgment because of the various concessions made that day by the husband. However, it is apparent that the husband was concerned about some issue because he obtained the transcript in the interim. As may not be widely known, the Court as a contracting party to the transcript provider is given a copy of whatever is ordered by a party. As such, the copy was on the court file.

6. In the ensuing five weeks after the July hearing, the husband did not file a new rectifying financial statement or affidavit as to his financial circumstances. His solicitor advised that he was working with his financial advisers to get the issue of his income position clarified. Even so, having regard to the discussion at the July hearing, it was perplexing that nothing was provided.

7. As the 6th week commenced, the husband fell ill and it seems to have been accepted by the wife that he was seriously so.

8. The illness necessitated the solicitor for the husband approaching the wife seeking an adjournment. Sensibly, the solicitor for the wife agreed. However, that was on the basis that the husband agreed to an extension of the periodic child support order because it ended on 18 August. Sensibly too, the husband agreed to that extension.

9. What seems to have then transpired (and it is not in evidence nor very clear) is that the husband sought from the wife to have the children of their relationship on the weekend. That raised the ire of the wife who questioned how that could occur if the husband was incapable of coming to court. It was unnecessary for me to make any determination of that question because the wife had agreed to the adjournment but it did give rise to the question of what should happen in the interim with the wife’s non-periodic child support claim.

10. Whilst non-periodic payments can often not be seen to be regular draws on parties’ resources, the unusual position here can be seen in the evidence of the wife.

11. The wife filed an affidavit in which she said that one of the children needed a prescription and the husband observed that he did not have sufficient money to care for the children over the relevant weekend. The wife apparently has access to the husband’s electronic banking records and not only denied the husband’s capacity was as he described, but took a “screen shot” of the accounts. There was no reply to this evidence nor apparently could there have been because of the husband’s illness but his solicitor did not have instructions to respond. There could be no dispute that the husband, despite being ill, could communicate. That can be seen from his capacity to seek the care of the children. In addition, senior counsel for the wife questioned whether the husband knew what his solicitor was proposing but the solicitor confirmed that he had communicated with his client. The silence then on the capacity to fund such things as education should have been capable of explanation when there was evidence before the Court from the wife.

12. Even so, education expenses can be irregular but here, the wife produced the fee invoice of the children’s private school. Without instructions or evidence, the solicitor for the husband submitted that fee payment arrangements could be made with the school. That does not answer the question of whether the children’s attendance at the school was potentially in jeopardy or that the school might sue for its past and future committed fees.

13. The situation was not satisfactory and I indicated that despite the agreed adjournment, I would permit the wife to proceed with her application for interim non-periodic child support but only in relation to school fees.

14. I then suggested a compromise that if the order read that the husband could make some arrangement with the school that should be satisfactory. It did not answer the question of whether the husband should pay the non-periodic payment anyway but having regard to the silence on the “screen shots” and the history of the July hearing, I consider that it was just and equitable and proper to make the order.

15. The Court has given these parties an opportunity to litigate and on the July hearing, the husband was clearly not ready. The August hearing had to be adjourned because of his incapacity but the resources of the Court have to be carefully used because of demands on its time. There is no justification for allowing this case to step over other cases in the meantime because of the lack of evidence from the husband.

16. I mentioned there was another matter. The husband filed an application in a case seeking effectively a “rehearing” of the July case based upon what he said was non-compliance with the rules relating to service of the wife’s application on the Child Support Registrar. Eventually after discussion, the solicitor for the husband indicated the Court could summarily dismiss the application and in hindsight that was very sensible. The application had no merit.

17. The issue of costs was raised and a formal application made. I declined to determine the issue then because of my lack of evidence from the husband not only as to his financial position but also as to why all of these things mentioned above had occurred. Why was it that there was no comprehensive disclosure? Why was there no new financial material? Why was the unusual application for a “rehearing” brought when the same practitioner appeared on the July hearing?

18. These matters are perplexing when the parties are each suggesting there is a financial problem in their case. I will have a careful examination of the evidence in November when the matter returns as to why these issues have been litigated as they have.

I certify that the preceding Eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 22 August 2017.

Associate: 

Date:  22 August 2017