Carter and Carter
[2011] FamCA 100
•25 February 2011
FAMILY COURT OF AUSTRALIA
| CARTER & CARTER | [2011] FamCA 100 |
| FAMILY LAW - SPOUSAL MAINTENANCE – Discharge of spousal maintenance order; Lump sum spousal maintenance; Whether the husband is able to establish just cause for discharging the spousal maintenance order |
| Family Law Act 1975 (Cth) Sections 72, 74, 75, 80 & 83 |
Brown & Brown [2007] FamCA 151; (2007) FLC 93-316; (2007) 37 Fam LR 59
In the Marriage of Vautin (1998) 23 Fam LR 627
| APPLICANT: | MR CARTER |
| RESPONDENT: | MS CARTER |
| FILE NUMBER: | SYC | 3668 | Of | 2009 |
| DATE DELIVERED: | 25 February 2011 |
| PLACE DELIVERED: | Sydney |
| JUDGMENT OF: | Justice Loughnan |
PLACE HEARD: Sydney
| HEARING DATE: | 27 January 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT HUSBAND: | Mr R. Maurice |
| SOLICITOR FOR THE APPLICANT: | David Leamey Solicitor & Barrister |
| COUNSEL FOR THE RESPONDENT WIFE: | Mr A. Givney | |
| SOLICITOR FOR THE RESPONDENT | Adrian Twigg & Co. | |
Orders
1.The Initiating Application of the husband filed 18 June 2010 and the wife’s Amended Response to Initiating Application filed 13 January 2011 are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carter & Carter is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3668 of 2009
| MR CARTER |
Applicant
And
| MS CARTER |
Respondent
REASONS FOR JUDGMENT
The parties are divorced and the husband has remarried. Nevertheless, for convenience I will refer to the respondent as “the wife” and to Ms B by name. Orders for spousal maintenance were made in favour of the wife by the Supreme Court of NSW in 1970. Those orders were registered under the Family Law Act and were increased on two occasions by consent. The husband seeks that the current order be discharged. The wife opposes that order and seeks lump sum maintenance.
Applications
The husband seeks orders in terms of his Initiating Application filed 10 June 2010 as follows:
1.That pursuant to section 83(1) of the Family Law Act Orders 2 & 3 made on 5th July 1990 be discharged as and from the date of filing of this Application..
In fact the order of 5 July 1990 has already been discharged. No point was taken on this issue. I understand the import of the husband’s application to be that he seeks the discharge of order 4 of the order of the Local Court, Family Matters, Sydney made on 17 August 2001.
The wife filed an Amended Response to Initiating Application filed 13 January 2011. There was no reference to the Amended Response during the hearing and it was not formally relied on by the wife.[1] Nevertheless the wife seeks that the husband’s application be dismissed. I take it that she seeks orders in terms of her Amended Response as follows:
[1] The Amended Response to Initiating Application is not included in the list of documents to be read in the wife’s Case Outline.
1.That the Applicant Husband shall pay or cause to be paid to the Respondent Wife within 42 days of the date of these orders as lump-sum spouse maintenance the sum of $250,000 being the capitalisation of maintenance in respect of the Respondent Wife for the period from September 2010 to May 2027.
1.1That in the event that the Husband fails, neglects or refuses to pay any part of that sum within the time stated then interest shall accrue on such part as may from time to time be outstanding until paid in full, calculated at the rate prescribed from time to time pursuant to Rule 17.03 of the Family Law Rules 2004.
2.This is an Order to which Section 77A of the Family Law Act applies and the sum of $250,000 of the amount payable is to make provision for the maintenance of the Respondent Wife.
Together with:
3.That the maintenance Order in the Local Court Family Matters, Sydney dated 17 August 2001 be discharged from the date to which it stands.
4.That in the event that he opposes these orders, the Applicant pay the Respondent’s costs of and incidental to this application.
5.Such further or other orders as to this Honourable Court may seem appropriate.
Documents read
The parties relied on the following documents:
Documents relied on by husband:
a.Application by husband 10 June 2010.
b.Affidavit of Mr Carter sworn 16 April 2010.
c.Affidavit of Mr Carter sworn 22 November 2010.
d.Affidavit of Mr K Carter sworn 22 November 2010.
e.Affidavit of Mr Y Carter sworn 22 November 2010.
f.Financial Statement sworn 30 October 2010.
g.Agreed Balance Sheet.
Documents relied on by wife:
a.Affidavit of Ms Carter sworn and filed 18 November 2010.
b.Affidavit of Ms Carter sworn 27 August 2010.
c.Affidavit of Mr F sworn and filed 19 November 2010.
d.Financial Statement sworn 28 October 2010, filed 29 October 2010.
Short history
The husband and wife are 74 and 71 years of age, respectively. They married in 1959, and separated nine years later. Their divorce was finalised in 1970. At the time of their divorce, the husband was ordered to pay the wife spousal maintenance in the amount of $60 per week, and child maintenance in the amount of $20 per week. On 5 July 1990, orders were made by consent which had the effect of increasing the rate of spouse maintenance. On 17 August 2001, orders were made by consent, discharging the 1990 order and fixing a new rate of spouse maintenance.
Children
There is one child of the marriage, namely Ms J born in 1960. She is currently 50 years of age.
Background facts
The husband was born in 1936 and he is therefore 74 years of age. The wife was born in 1939 and as at the date of the hearing she was therefore 71 years of age. The parties married in 1959. They separated in late 1968.
On 13 March 1970, a divorce was granted under the Matrimonial Causes Act 1959. At this time, the husband was ordered to pay to the wife $60 per week by way of spousal maintenance and $20 per week by way of child maintenance.
There is one child of the marriage, namely Ms J born in 1960. She is currently 50 years of age.
On 1 October 1970, the parties entered into a Deed of Agreement whereby the husband pay $14,000 to the wife and the wife transfer to the husband all of her interest in the company G Pty Ltd and in the properties at N and E, including liabilities.
In 1980, the husband married Ms B.
In 1981, Mr K Carter was born to the husband and Ms B.
In 1986, Ms H was born to the husband and Ms B.
On 5 July 1990, the following orders were made by this Court, by consent:
1. That Application (a) of the Application filed on the 30th day of August 1989 on behalf of the wife be dismissed.
2. That the Order for maintenance made on the 13th day of March 1970 in the Supreme Court of New South Wales Matrimonial Causes Jurisdiction be varied by deleting the sum of “$60.00” and inserting the sum of “$250.00” and by adding the words “that payment be made by bank order on the husband’s bank for payment to the account in the name of [the wife] account no. … with the St George Building Society, … Branch at the rate of $1083.00 per Calendar month, the first payment to be made on 12th July 1990.”
3. That the amount of maintenance referred to in Order 2 above be varied on and from the instalment of maintenance next due after 4th July in each year in accordance with the variation in the Consumer Price Index published by the Commonwealth Statistician for all groups for Sydney by comparison of the Consumer Price Index as it stands on the 30th June immediately preceding the date of variation as compared with the same index at the same date 12 months prior thereto.
4. That each party pay their own costs of and incidental to all matters herein.
In 1991, Y was born to the husband and Ms B.
On 17 August 2001, the following consent orders were made in the Local Court Family Matters:
1. That the Respondent (husband) pay to the Applicant (wife) arrears of spousal maintenance up to and including June 2001 in the amount of $6,548.80 within 7 days of the date of order.
2. That the Respondent pay the Applicant’s costs in the amount of $500.00 within 30 days of the date of order.
3. That the Spouse Maintenance Order made on 13 March 1970 in the Supreme Court of New South Wales and the Spousal Maintenance Orders numbered 2 and 3 made in the Family Court of Australia at Sydney on 5 July 1990 be vacated.
4. That on and from 1 July 2001 the amount of spousal maintenance payable by the Respondent to the Applicant is the amount of $260.40 per week ($1128.40 per calendar month) such monthly amount to be paid by the 12th day of each calendar month commencing on 12 July 2001.
5. That the amount of spousal maintenance to be paid pursuant to Order 4 be varied on and from the instalment of maintenance next due after 1 July 2002 and each subsequent year in accordance with the variation in the Consumer Price Index published by the Australian Bureau of Statistics for all groups of Sydney by comparison with the Consumer Price Index as it stands on 30th June immediately preceding the date of variation as compared with the same index at the same date twelve months prior thereto.
6. That the payment of spouse maintenance be made by direct deposit to the account in the name of [the wife],being Account No. … at the St George Bank.
It is Order 4 of those orders that is the subject of these proceedings.
On 21 January 2008, the husband sold a property at C for the sum of $2,950,000. The husband says that, of this, $950,000 was used to repay bank debt, $1,000,000 was paid to his superannuation fund and $1,000,000 was paid to Ms B.
On 14 May 2009, the husband sold the business G Pty Ltd to his son, K Carter for the sum of $1,200,000 by way of vendor finance. A mortgage was signed by the husband and his son on 14 May 2009 for the sum of $1,200,000. The husband assigned his rights under that mortgage to Ms B. The husband says that, to date, K Carter has not repaid this amount. The husband paid the stamp duty on the transfer of $52,000, by withdrawing funds from his self-managed superannuation fund.
The husband says that in May 2009 he ceased full time employment but continued to work two days per week.
On 22 June 2009, the wife filed an Application in a Case for production of financial documents by the husband.
On 24 June 2009, orders were made by Registrar Crawford for the husband to produce financial documents.
On 24 August 2009, the wife filed an Application seeking an order for the issuing of an Enforcement Summons including orders for the husband to attend an enforcement hearing and for the husband to produce documents required by the orders made on 24 June 2009 together with updating documents.
On 25 August 2009, orders were made by Registrar Crawford in relation to the issuing of an Enforcement Summons.
On 21 September 2009, the Enforcement hearing took place before Registrar Crawford. The husband’s Response, seeking a discharge of the original order, was dismissed and the husband was ordered to pay the wife’s costs.
On 12 October 2009, an Enforcement Warrant was filed on behalf of the wife for the sum of $19,528.92.
On 14 October 2009, $18,778 was paid to the wife’s solicitors. This sum did not include legal fees.
Following negotiations, $8,000 was paid to the wife’s solicitors for legal fees in December 2009, pursuant to the orders made on 21 September 2009.
The husband says he ceased paid employment in May 2010.
On 10 June 2010, the husband filed an Initiating Application seeking that Orders 2 and 3 made on 5 July 1990 be discharged.
On 13 January 2011 an Amended Response to Initiating Application was filed on behalf of the wife. That document annexed a sealed copy of the order of the NSW Local Court Family Matters of 17 August 2001, thereby effecting registration of that order in this Court.[2]
Credit and Submissions
[2] Regulation 17 Family Law Regulations (Cth) 1984.
The evidence of the witnesses
The witnesses called for cross-examination were the husband, the wife and the husband’s sons. There are issues that fall to be determined solely by reference to the uncorroborated testimony of the parties. It is therefore necessary to make credit findings.
The husband said that he was nervous and he appeared ill at ease. He professed to not recall many financial and other facts. Whether for that reason or other reasons, the husband is not a good witness. He insisted on several occasions that he be allowed to explain why he had transferred the business premises of a car yard to his son and when finally given the opportunity, his explanation made no sense.
The husband said that Ms B makes payments for him and that she has more financial resources than he and yet when he was searching for an explanation for a large deposit and withdrawal in respect of her bank account in August of 2010 he belatedly offered words to the effect: “The money came from our superannuation fund. I put $100,000 back into the account and used $52,000 to pay the stamp duty on the real estate transfer to my son.” Thus he was suggesting that these were his transactions on his wife’s account.
Initially the husband said that he was not aware of the sale of a house neighbouring his home and immediately thereafter agreed that a real estate agent had discussed it with him. Indeed he knew the sale price.
The husband’s son, Y Carter, was briefly cross-examined and his evidence was not challenged.
The husband’s son, K Carter was briefly cross-examined and his evidence was not challenged.
The wife struggled with her evidence. It is her evidence that her affidavits do not accurately reflect her views about some matters – to take a silly example – whether the husband has a son called Y. Her memory is not completely accurate. Having said that, I did not detect any intention to mislead the court. In any event, there is no significant contest about her evidence.
Submissions
There is an agreed balance sheet.
The written submissions on behalf of the husband are:
APPLICANT HUSBAND’S SUBMISSIONS
Background Facts
1.Husband born in 1936 and the wife in 1939. Husband is 74 years of age.
2.Married July 1949 separated 1968, one child Ms J, now 50 years.
3.On 13 March 1970 under the Matrimonial Causes Act:
a.Divorce granted.
b.Orders made for husband to pay $60 per spousal maintenance and $20 child maintenance per week.
c.Deed entered into by the parties whereby the husband paid $14,000 to the wife and the wife transferred her interest in the company, G Pty Ltd and property situated at N and E to the husband, including liabilities.
4.On 5 July 1990 after the wife brought an application for leave under sec 44(3) to bring a property application consent orders made whereby husband paid spouse maintenance of $250 per week varied with CPI each July. Sec 44(3) claim dismissed by consent.
5.Those orders were further amended on 17.8.01 providing for lump sum payment of $6,548 arrears and a weekly payment of $260 per week with CPI adjustment.
6.Husband ceased full time employment in May 2009 at the age of 72 and ceased all work in May 2010.
7.The wife filed her first (and only) enforcement proceedings in this Court on 24.8.09.
8.14.10.09 Agreement reached on arrears of $18,778 which were paid and agreement about wife’s legal fees in the sum of $8,000 paid in Dec 2009.
9.On 10.6.10 the husband filed the application before the Court to discharge the spouse maintenance order.
Legislation and Authorities
SECTION 81
DUTY OF COURT TO END FINANCIAL RELATIONSIn proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
SECTION 83
MODIFICATION OF SPOUSAL MAINTENANCE ORDERS
83(1) [Power to discharge, suspend, etc]If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first-mentioned court in accordance with the applicable Rules of Court; the court may, subject to section 111AA:[3]
(c) discharge the order if there is any just cause for so doing;[3] Relates to Maintenance orders made in New Zealand etc.
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to
subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
History
83(1A) [not relevant]
83(2) Requirements to be satisfied]
The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) not relevant
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent that the amount ordered to be paid is not proper or adequate; [4]
[4] Note: These requirements are expressed to be disjunctive.
(c) Not relevant
83(3) Not relevant
83(4) [CPI changes]
In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
83(5) [Change in cost of living]
The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
83(5A) [Previous payments, etc]
In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:(a) the other party; or
(b) any other person for the benefit of the other party.
83(6) [Decrease retrospectivity]
An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
83(6A) [Retrospective order decreasing amount]
Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date, being moneys that would not have been required to be paid under the second-mentioned order as varied by the first-mentioned order, may be recovered in a court having jurisdiction under this Act.83(6B) [Retrospective order discharging order]
Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second-mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.83(7) [Relevance of other sections]
For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.83(8)[Recovery of arrears]
The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
What does “discharge the order if there is any just cause for so doing in sec 83(1)(c) mean?
In Turnbull and Turnbull (2006) FLC ¶ 93-307 it was that there will only be a "just cause" if:
"Having regard to the other provisions of the Act, particularly those relating to maintenance, it can be said that it is 'right' or 'proper' that the order should be discharged (citing Lutzke & Lutzke (1979) FLC ¶ 90-714 at 78,832)"
Making such orders is always discretionary, even if "just cause" is established (Vakil & Vakil (1997) FLC ¶ 92-743).
What does “that the amount ordered to be paid is not proper” in sec 83(2)(ba) mean?
Although at first blush “not proper” might suggest “inadequate” that is not the case. The meaning of "proper" was considered in Robinson and Willis (1982) FLC ¶ 91-215. Asche SJ (at p 77,157) said:
"An order which is either insufficient or excessive in the circumstances, is not 'proper'. In the former case because the burden of support may be thrown on the public; in the latter because an excessive order will result in inability to pay the accumulation of impossible arrears and, again, ultimately a probable recourse to the public purse."
Elliott J in the same decision (at p 77,166) noted that a "proper" order was one which the court thought proper, not one which "the parties think fit". The key circumstances in which spousal maintenance can be ordered are set out in s 72 (eg Clauson and Clauson (1995) FLC ¶ 92-595). This section 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..."
Important considerations about sec 83:
1. As a result of sec 83(7) for any application for variation under sec 83, (with reference to secs 72 and 75) are still applicable. The applicant must establish that he or she is unable to support himself or herself adequately. The need of the applicant for maintenance must again be tested (Astbury and Astbury (1978) FLC ¶ 90-494).
2. The factors in s 83(2) are clearly in the alternative". In Caska v Caska (1998) FLC ¶ 92-826 the Full Court found (at p 85,412) that s 83(2)(ba) (being that the amount ordered to be paid in the previous order "is not proper or adequate") is an additional and optional ground. It may be relied on when seeking a variation of a maintenance order made by consent. It is not a prerequisite for the variation of all orders.
In paragraph 15, their Honours, Fogarty, Finn and May JJ, said:
But irrespective of that consideration, we are of the view that the appeal must be allowed on the basis of this ground because his Honour was, in our opinion, clearly wrong in law in holding that, in order to vary a previous spousal maintenance order made by consent, the applicant for variation must show that the condition contained in s 83(2)(ba) (being that the amount ordered to be paid in the previous order ``is not proper or adequate'') is satisfied, and that the other matters or conditions in s 83(2) (including a change of circumstances in the payer or payee) have no application. In this regard we agree with the submission made on behalf of the appellant wife, that the conditions or matters listed in s 83(2) are clearly in the alternative, and that s 83(2)(ba) provides an additional ground which may be relied on when seeking a variation of a maintenance order made by consent; it is not a prerequisite for the variation of such an order.
As a result neither an applicant for an increase nor an applicant for a decrease need prove the original amount is or was not proper or adequate in order to vary a consent order and that there is no threshold test before varying a maintenance order that was made by consent.
Husband’s case
10.The husband has been paying spouse maintenance for 40 years and 10 months (ie: between March 1970 and January 2011).
11.The husband paid spouse maintenance between March 1970 and 5 July 1990 (1060 weeks) of $63,600. Adjusted for inflation in today’s dollars that is about $168,000. [5]
[5] Based on average annual inflation of 5%.
12.Between July 1990 and January 2011 (1,069 weeks) he paid about $310,010. Adjusted for inflation that is about $392,000. [6]
[6] Based on average annual inflation of 3%.
13.In other words over the course of about 41 years the husband has paid the equivalent of $560,000 in today’s dollars.
14.The husband remarried in January 1980 and has had 3 children with his wife, K aged 29, Ms H aged 21 and Y aged 19. Y is a university student and is fully dependent upon the husband.
15.The husband filed an application in this Court to discharge the maintenance orders on 10.6.10.
16.The wife seems to suggest that it is suspicious and unreasonable that the husband ceased full time employment in May 2009 at age of 72 and subsequently retired last year.
17.The wife also seems to imply that the husband’s decision to sell the …business to his son. It appears that the wife expects the husband to continue to work into his 90s.
18.The Applicant husband and his current wife now live off the proceeds of their superannuation fund.
19.The husband of course has a legal obligation to support his current wife and an obligation to support his dependent son Y.
20.The husband’s case essentially is that:
a.Having paid spousal maintenance to the wife for 41 years he is now retired and no longer has an income stream;
b.No one could reasonably expect him to continue to work;
c.He continues to have obligations to support his current wife and dependent 19 year old son.
d.He now relies on his accumulated superannuation for his financial support.
e.The wife owns a valuable home and has an inheritance of $100,000 as well as some shares. She is in a completely different and much more favourable financial situation to that she was in 41 years ago.
Wife’s lump sum claim
21.The wife filed an Amended Response on 13.1.11 seeking a lump sum of $250,000 she says representing 16 years and 8 months of maintenance (869 weeks @$289 per week). By 2027, the husband will have obtained the age of 91 years. By 2027 the husband would have been paying spousal maintenance for about 57 years.
22.According to the NSW Department of Health the average life expectancy of men in NSW is 79.3 years (as at 2006). [7]
[7] lump sum application lacks any merit as:
· The amount claimed is excessive;
· The period it is said to relate to is bears no relationship with reality;
· That it does not meet the criteria in the authorities for the making of a lump sum order. He does not fit the profile of a recalcitrant maintenance payer; e.g.: the wife told Centrelink in 2005 that the husband was paying more than required. [8]
[8] Centrelink Records 2.11.05.
· She also says in her affidavit that by and large he has met his obligations over 41 years. [9]
[9] Affidavit of wife 18.11.10 #13.
· Payment of such sum would be unjust and unreasonable;
· It is therefore outside the range of a reasonable exercise of discretion.
24.Numerous authorities, referring to sec 81, have expressed preference for periodic orders save in exceptional circumstances.
25.This was concisely summarised by the Full Court in Clauson and Clauson (1995) FLC ¶ 92-595 (at p 81,908):
"The other aspect which it is important to identify in this case is that the power to make a maintenance order is to be found in s 74. As s 80(1) makes clear, the Court, in exercising that power, can do so in a number of ways, including by a periodic order or a lump sum order. Periodic maintenance should be considered before lump sum maintenance. The central power is to order maintenance; that power may be exercised in different ways. A claim for lump sum maintenance is not a claim to the exercise of a separate head of power; it is a claim for maintenance which may be satisfied by a periodic order or by a lump sum order...
The power to capitalize periodic spousal maintenance is a power to be exercised cautiously..."26.To illustrate the inherent unreasonableness of the wife’s claim, were she to succeed a combined lump sum of $350,000 (i.e.: $250,000 + $100,000 wife’s inheritance) currently could be invested to earn 6.3% on term deposit with a major bank. [10] This would produce an income of $1,837.50 per month or $424 per week while preserving her capital in addition to her receipt of social security entitlements (if applicable).
[10] is however no evidence before the Court of the effect on the wife’s social security entitlements were she to receive a lump sum from these proceedings.
28.There has been only one maintenance enforcement application brought by the wife in 41 years. On this occasion arrears were brought up to date.
29.Despite the way the wife seeks to portray the husband her own description of the husband’s track record for payment is that he “largely fulfilled the conditions to which he is subject under the 1990 orders and has paid spouse maintenance to me …” [11]
[11] Affidavit of wife 18.11.10 #13.
30.Indeed it transpires from the Centrelink records that she told them that she received from the husband more than the agreed amount.[12]
[12] Centrelink Records 2.11.05.
31.There is not one complaint by the wife to Centrelink that the husband is failing to meet his obligations.
32.More generally the Court is invited to find that the wife’s evidence is exaggerated and unreliable. For example:
a.She only disclosed her inheritance when specifically pressed.
b.She did not disclose jewellery until specifically asked.
c.She has preserved her inheritance despite claiming she is unable to afford to support herself.
d.Claimed to be unable to work but able to build a house on her own between 1980-1982. [13]
e.Said in her affidavit that she has no income other than pension – when has interest and dividend income. [14]
f.Insisted in her second affidavit that the husband was still running the business even though in the first she conceded it was now run by his son. [15]
g.Has volunteered unqualified evidence about matters with which she could not possibly have any direct knowledge; e.g.: husband’s family and business affairs; having had no involvement with the husband for more than 40 years.
h.For example denied absolutely that the husband has a son named Y, notwithstanding that Y is a witness in the proceedings.
Consistently she has understated value of her assets (e.g.: home and car).
[13] Affidavit of wife 18.11.10 #21.
[14] Affidavit of wife 18.11.10 #43.
[15] Compare Affidavit of wife 27.8.10 #27 with Affidavit 18.11.10 #18 & #29 on page 12.
The written submissions on behalf of the wife are:
1.The husband seeks that the Court exercise its discretion provided under Section 83(1)(c) which provides as follow:-
“If there is enforce an Order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage
(a) …
(b)Made by another court and registered in the first-mentioned court in accordance with the applicable rules of court;
The court may, subject to Section 111AA;
(c)Discharge the Order if there is any just cause for so doing
2.In considering the concept of “just cause” the court is required to consider as to whether it is “right” or “proper” that the Order should be discharged [see Lutzke v Lutzke (1979) FLC 90-714].
3.The husband has the onus of establishing “a just cause” [see Astbury v Astbury (1978) FLC 90-494].
4.The Applicant must establish that he is unable to support himself adequately [see Astbury v Astbury]. The husband during the course of cross-examination enforcement proceedings admitted that he had transferred to one of his children of his second marriage a property valued at $1.2 million subject to such son providing a mortgage back to him. The husband transferred the mortgage to his wife. The husband in effect has given away a property worth $1.2 million and does not expect his wife to enforce the mortgage against their son.
5.The husband lives in a home which he says has a value of $5 million. The wife proposes to bring evidence to indicate that the husband’s assessment of value is somewhat pessimistic and contrary to recent statements he has made.
6.The wife in her financial circumstances establishes a need for maintenance and further if she does not continue to receive the amount of maintenance pursuant to the Order then she would clearly not be able to make ends meet. The wife is entitled to a reasonable standard of living.
7.The husband’s Financial Statement indicates that notwithstanding the husband lives in a property of a value [what he says] of $5 million. He does not seem to pay any outgoings associated with it including insurance, rates and the like.
8.Shortly put the husband has not established a case.
The approach in proceedings for discharge of spousal maintenance
Section 83 of the Family Law Act1975(Cth) provides:
Modification of spousal maintenance orders
(1) If there is in force an order (whether made before or after the commencement of this Act) with respect to the maintenance of a party to a marriage:
(a) made by the court; or
(b) made by another court and registered in the first‑mentioned court in accordance with the applicable Rules of Court;
the court may, subject to section 111AA:
(c) discharge the order if there is any just cause for so doing;
(d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event;
(e) revive wholly or in part an order suspended under paragraph (d); or
(f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner.
(1A) The court's jurisdiction under subsection (1) may be exercised:
(a) in any case--in proceedings with respect to the maintenance of a party to the marriage; or
(b) if there is a bankrupt party to the marriage--on the application of the bankruptcy trustee; or
(c) if a party to the marriage is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.
(2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied:
(a) that, since the order was made or last varied:
(i) the circumstances of a person for whose benefit the order was made have so changed (including the person entering into a stable and continuing de facto relationship);
(ii) the circumstances of the person liable to make payments under the order have so changed; or
(iii) in the case of an order that operates in favour of, or is binding on, a legal personal representative--the circumstances of the estate are such;
as to justify its so doing;
(b) that, since the order was made, or last varied, the cost of living has changed to such an extent as to justify its so doing;
(ba) in a case where the order was made by consent--that the amount ordered to be paid is not proper or adequate;
(c) that material facts were withheld from the court that made the order or from a court that varied the order or material evidence previously given before such a court was false.
(3) Subsection (2) does not prevent the court from making an order varying an order made before the date of commencement of this Act if the first‑mentioned order is made for the purpose of giving effect to this Part.
(4) In satisfying itself for the purposes of paragraph (2)(b), the court shall have regard to any changes that have occurred in the Consumer Price Index published by the Australian Statistician.
(5) The court shall not, in considering the variation of an order, have regard to a change in the cost of living unless at least 12 months have elapsed since the order was made or was last varied having regard to a change in the cost of living.
(5A) In satisfying itself for the purposes of paragraph (2)(ba), the court shall have regard to any payments, and any transfer or settlement of property, previously made by a party to the marriage, or by the bankruptcy trustee of a party to the marriage, to:
(a) the other party; or
(b) any other person for the benefit of the other party.
(6) An order decreasing the amount of a periodic sum payable under an order or discharging an order may be expressed to be retrospective to such date as the court considers appropriate.
(6A) Where, as provided by subsection (6), an order decreasing the amount of a periodic sum payable under an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date, being moneys that would not have been required to be paid under the second‑mentioned order as varied by the first‑mentioned order, may be recovered in a court having jurisdiction under this Act.
(6B) Where, as provided by subsection (6), an order discharging an order is expressed to be retrospective to a specified date, any moneys paid under the second‑mentioned order since the specified date may be recovered in a court having jurisdiction under this Act.
(7) For the purposes of this section, the court shall have regard to the provisions of sections 72 and 75.
(8) The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.
As the section applies to the proceedings before me, the husband must establish that there is just cause for discharging the order of 17 August 2001 or that his circumstances or those of the wife have so changed as to justify the discharge of the order OR that the amount ordered by consent is excessive (inter alia, by reference to property settlement payments).
Those considerations are made by reference to the provisions of sections 72 and 75.
Section 72(1) of the Family Law Act 1975 (Cth) says as follows:
(1)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 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).
Thus if the wife cannot support herself adequately for any adequate reason then the husband is obliged to provide that support to the extent that it would be reasonable to do so.
Section 75 provides:
(1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
….
Turning the matters in s 75(2) that are relevant to the facts of these proceedings:
(a) the age and state of health of each of the husband and wife;
The wife and husband are 71 and 74 years of age respectively.
There is no independent evidence about the health of the parties. The wife was in hospital for 10 days in July 2010 with pneumonia. She has scar tissue on her lungs and requires x-rays every two weeks. The wife requires dental treatment and anticipates a cost of about $15,000. The husband suffers from anxiety.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The wife’s income is $768.75 per week, made up of $48 in interest, $10 in IAG dividends, $344 in Centrelink benefits in the form of the Age Pension and $362.75 per week in spousal maintenance. The wife had a lesser figure for maintenance in her Financial Statement of October 2010 but as I understand her evidence, she contends that the husband is not in arrears. The wife lives by herself in her home.
The wife’s expenditure is as follows:
Expense Amount Rates and unit levies $29.00 Other rates and unit levies $37.00 Home and contents insurance $13.00 Motor vehicle green slip insurance $12.00 Other expenses. $739.00 Food $220.00 House supplies $50.00 Electricity $24.00 Telephone $45.00 Petrol $30.00 Motor vehicle maintenance $14.00 Parking and fares $18.00 Clothing and shoes $70.00 Medical, dental and optical $45.00 Entertainment hobbies $150.00 Chemist, pharmaceutical $10.00 Gardening, lawnmowing $12.00 Dry cleaning $4.00 Books and magazines $10.00 Gifts $4.00 Hairdressing, toiletries $20.00 Internet $13.00 Sub-total $739.00 Total $830.00
The wife has a weekly shortfall of income over expenses of about $70.00.
It is not suggested that the wife has additional earning capacity.
The wife’s assets and liabilities are agreed as follows:
Assets Value Property G $1,100,000 Cash at bank $109,000 Household contents $20,000 IAG shares $2,680 2008 Toyota Yaris $6,000 Total $1,237,680.00
It is the husband’s contention that the wife has $50,000 worth of jewellery. There is no evidence, nor were there any submissions on this issue. The wife has no relevant liabilities.
The husband receives $1,200 per week in the form of distributions from the superannuation fund owned by Ms B and him. He lives at property U with his wife and their son, Y.
Although not disclosed on his Financial Statement, Ms B’s income is of the order of $1,915 per week. She does no work at the business, formerly run by the husband and now run by K Carter. Nevertheless, she is paid $1,000 a week by that business. It is the husband’s evidence in cross-examination that he and Ms B receive a combined income of $2,115 per week from their superannuation fund. In that the husband deposes to receiving $1,200 per week from that source, I assume that Ms B receives the balance of $915 per week.
As to the husband’s earning capacity, he has recently given up paid employment and handed over his business to his son. He has been working at the business without pay, on average 2-3 days a week of recent times so as to allow K Carter to focus on a new child. The husband is 74 years of age.
The husband spends $1,200 per week made up as follows:
Expense Amount Maintenance to the wife $327.00 Other expenses. $873.00 Total $1200.00
Despite the obligation to do so in maintenance proceedings, the husband has not set out the detail of his living expenses in his Financial Statement. The husband says that of the “other expenses” of $873, he estimates that $480 is paid for the benefit of Y. Y confirms that the husband pays his university fees and provides other financial support. The husband says that he (the husband) benefits from $345 per week paid by Ms B. He apportions that as to $25 for the use of a car, $120 for the lease of the boatshed on the property and $200 for “council rates and outgoings”.
The balance sheet shows the husband’s agreed assets as follows:
Assets Value A one half interest in property U $2,500,000 Household contents $15,000 Carter Super Fund $800,000 Total $3,315,000.00
The wife alleges that the husband has other assets. There is no evidence that would enable such a finding. Ms B owns half the business, with K Carter. She holds a mortgage over the business premises for a loan of $1,200,000 that she has forgiven or will not enforce. She owns another property at D and has it on the market for sale. The husband understands that the sale price is of the order of $1,500,000 to $2,000,000.
Ms B has no obligation to support the wife. However, where the capital and income of the husband and Ms B are intertwined and no effort has been made to define the individual financial circumstances of the husband, the financial circumstances of Ms B become relevant.
There are no relevant liabilities on the agreed balance sheet.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
There are no children of the marriage under 18 years of age.
(d) commitments of each of the parties that are necessary to enable the party to support:
himself or herself; and
a child or another person that the party has a duty to maintain;
(e) the responsibilities of either party to support any other person;
I have set out the evidence in relation to the parties’ expenses.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
any law of the Commonwealth, of a State or Territory or of another country; or
any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
I have set out the evidence in relation to pension payments and superannuation. Although not developed in the evidence, there may be an issue about the rate at which drawings are made from the fund owned by the husband and Ms B and whether those drawings are from income or capital. I can make no findings about that. That situation would be obviously affected by further contributions to the fund, for example from the sale of the properties at D and/or U.
(g) where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
There is some evidence in relation to the standard of living of the parties. They live in areas that I would think could be described as comfortable, middle to upper class. The husband and Ms B live in a waterfront property. The husband, with members of his second family have taken overseas trips. On his own case, he was able to give a property valued at $1,200,000 to one son, in effect, for back wages.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
There is no evidence of either party seeking further study or intending to set up in a new business.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant;
This is not relevant.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
There is no significant evidence about this issue.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
There is no significant evidence about this issue.
(l) the need to protect a party who wishes to continue that party's role as a parent;
This is not relevant.
(m) if either party is cohabiting with another person — the financial circumstances relating to the cohabitation;
I have set out above what there is of that evidence. The husband’s evidence about the financial arrangements between himself and Ms B is not entirely satisfactory. The thrust of the husband’s case is that Ms B has the main income of the family and that she holds the main banking accounts. The husband has access to those accounts; one of their sons also has some involvement with Ms B’s finances. Significantly, Ms B is not on affidavit. No sensible explanation was given by the husband for Ms B holding the mortgage that secures the (forgiven) purchase price of the car yard premises sold by the husband to K Carter.
(n) the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
This is not relevant.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
There is no child support.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
The husband and Ms B have being trying to sell their home for periods over the last three years. Although not disclosed in his case, it transpires that the home, which has an agreed value for the purposes of these proceedings of $5,000,000, was placed on the market again at the end of 2010, for $6,800,000.
(p) the terms of any financial agreement that is binding on the parties.
There was no binding agreement made between the parties.
Turning to the questions raised in s 72:
The wife’s capacity to adequately maintain herself
In considering whether a party is unable to support himself or herself, the Court is required to consider the income, earning capacity and financial resources of that party, and their reasonable expenses, having regard to the matters in s 75(2).
The wife is 71 years of age and it is not suggested that she is capable of paid employment. As to her income, it is over-committed even before I exclude from my considerations, as I am required to do, her age pension. Once the pension is excluded, the wife has a weekly shortfall of over $400.00. Without maintenance the shortfall would be over $700 per week.
Not that there is any significant focus on the issue in the evidence of the parties, the only matter referred to by way of a change in the wife’s financial circumstances since 17 August 2001 is an inheritance from her mother. The wife received $114,646.71 of which she applied $12,000 to legal fees in these proceedings, $800 to purchase a clothes dryer, $3,000 for a skylight and $2,500 for a washing machine. The wife understands that she will need to pay about $30,500 for house repairs and house painting. The income on her savings, before the savings are reduced by any house maintenance costs, is already factored in to the weekly deficit I have identified.
I am satisfied that the wife cannot adequately support herself. I am satisfied that her inability to adequately support herself arises for an adequate reason.
The husband’s reasonable capacity to provide support
Learned counsel for the husband made the following submission:
“It’s not my case that he (the husband) is able to meet an order or able to continue to meet the order, I won’t make that concession, but I will concede that that finding is open to your Honour, so that, if you like I am having a bit of it each way”
The husband’s capacity is determined by his financial circumstances, not by whether he engages in paid employment or not. Thus regard must be had to his income, earning capacity, assets and financial resources. He is 74 years of age and although has recently been working at the business for 2-3 days a week without pay, it is not part of the wife’s case that he could be reasonably be expected to continue in full-time or any paid employment.
Three matters cause me some concern in the husband’s case in relation to his financial circumstances. The evidence about the income from the superannuation fund had to be drawn from the husband in cross-examination rather than being apparent in his own evidence. Ms B is selling a commercial property that may have a value of the order of $1.5 million to $2 million. The husband and Ms B have their property on the market for $6.8 million and yet there is no evidence at all about their plans either for the proceeds or for future accommodation. If, for example, they intend to put much of the proceeds into their superannuation fund and buy a more modest property, then that would be relevant to the husband’s reasonable capacity to provide support. It beggars belief that they do not have plans in the event that the property sells.
Conclusion
To address what the husband’s counsel referred to as essentially his case:
·The facts that the husband has paid maintenance to the wife for 41 years and has retired are not sufficient for the order he seeks. The submission that the husband no longer has an income stream is wrong;
·It is not suggested in the wife’s case that the husband is expected to continue to work;
·While he continues to have obligations to support Ms B and his dependent 19 year old son, by the same token, he continues to have the obligation created by s 72 to the respondent in these proceedings;
·He now relies on his accumulated superannuation for his financial support and the (inadequately explained) financial arrangements with Ms B;
·Albeit a fraction of the value of the home in which he lives, I accept that the wife owns a valuable home. She also received an inheritance of $100,000. It is irrelevant that the wife is in a different situation to 41 years ago. As far as the evidence reveals, at best she is in a marginally different financial situation to 17 August 2001.
I accept the concession made in the husband’s case to the effect that it is open to me to find that the husband is able to meet a maintenance order or the maintenance order. I make that finding.
The husband has not made out his case. The Court’s power is to discharge or vary maintenance. No application or submission was made in relation to maintenance being varied. Even if that is not fatal, there is simply not enough evidence about the husband’s past (since 17 August 2001), present and likely future financial circumstances to identify one amount or another to which the maintenance should reasonably be reduced.
The husband’s application must fail.
The Approach to Lump Sum Spousal Maintenance
In s 80, provision is made for Part VIII orders to be made in various forms.. Section 80 commences:
(1) The court, in exercising its powers under this Part, may do any or all of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;
….Thus, there is power to make spouse maintenance orders in the form of a lump sum. Commonly, orders for spousal maintenance are periodic. In that way, they can more easily be responsive to changes in financial circumstances and there is a reduced risk that payments made for ongoing support are not used for that purpose. If, for example, an order was made for a lump sum that capitalised a periodic rate for 10 years and either of the parties died after one year, then an injustice could arise to the payer or to those who might share in the payer’s estate.
In In the Marriage of Vautin (1998) 23 Fam LR 627, the Full Court said at paragraph 43:
It has been pointed out on a number of occasions in this court that in the exercise of the power to order lump sum maintenance caution is usually appropriate because of the apparent finality of lump sum orders and the difficulties in making predictions into the future.
However, no priority is placed on periodic payments over lump sum payments in the maintenance sections, that is, ss 72, 74 and 75.
In seeking a lump sum order, the arguments made on behalf of the wife are that the husband has been in breach of the periodic order and the parties have been put to the cost of enforcement proceedings. It is argued that legal costs are relatively expensive when seen in the context of a modest periodic maintenance. I am referred by learned counsel for the wife to the decision of Brown & Brown [2007] FamCA 151; (2007) FLC 93-316; (2007) 37 Fam LR 5.
In that case, the Full Court dealt with an appeal which, among other things, dealt with a challenge to spouse maintenance orders by way of lump sum, for inadequacy of reasons. The Full Court said:
58.In our view, on the reading of paragraphs 367 to 369 inclusive, it is clear that his Honour concluded that a lump sum was the appropriate form of order not only for the reasons referred to in paragraph 367 but also because he considered that he was obliged to make an order which was “proper”. The content of paragraph 369 goes particularly to the question of what would be a “proper” order. We regard the factors listed in paragraph 369 as going both to the form of order and its quantum.
59.Moreover, we accept the submission of Mr Richardson that paragraphs 367 to 369 are by way of summary of what had gone before in O’Ryan J’s reasons.
60.As Mr Richardson submitted, particular findings in previous paragraphs underpinned the comprehensive terms used in these final paragraphs. He provided us with a “Schedule of references relevant to lump sum order”. About half of the passages nominated have already been set out in this judgment. These and the remaining passages relate to:
· the conduct of the husband constituting non-compliance with consent orders;
· uncooperative behaviour in respect of the proceedings;
· failures to make full and frank disclosure;
· transactions such as the transfer of his interest in the “Dural mansion” to his present wife for nominal consideration;
· unfulfilled promises made from time to time by the husband to provide for the wife in particular ways (including lump sum payments);
· the husband’s wealth;
· the wife’s contributions to the husband’s financial circumstances (which grew substantially subsequent to the property settlement orders, but from a basis that was developed during cohabitation); and
· the generous levels of support provided by the husband after separation and divorce, followed by the severance of support upon the wife’s institution of proceedings.
61.O’Ryan J had a discretion to choose the form of maintenance, as was recognised in Vautin v Vautin (1998) FLC 92-827 at 85,423-85,424 by Fogarty and Burton JJ:
“42. Maintenance is a term of wide meaning directed to various forms of provision for the support of a spouse or child.…In making the order which is appropriate in that context, the Court may make a periodic order or lump sum order or a combination of both and/or make any other orders of the kind referred to in s 80(1).
43. … in the exercise of the power to order lump sum maintenance….It may be ordered, amongst other reasons, to meet non-periodic expenditure for the maintenance of that person where there is an established need and a capacity to pay. It is not confined to cases of the capitalisation of periodic maintenance and/or where periodic maintenance is unlikely to be paid because of concerns about the capacity or willingness of the liable parent to pay (as passages in the judgment in Clauson and Clauson (1995) FLC ¶ 92-595 at pp. 81,907 and 81,908 may suggest) or to cases where the need for or the capacity to pay periodic maintenance is demonstrated.”
There are obvious features of the husband’s conduct in the case before me that fall within the categories found in Brown. As in Brown, Mr Carter deliberately stopped paying periodic maintenance, his financial disclosure was not fulsome and he recently gave away a valuable asset to a family member. However, there are important differences between the cases. For example in Brown there was:
· a finding that the husband was very wealthy. The trial judge found that the husband’s assets were worth of the order of $150,000,000;
· a finding that the husband had a financial resource in the form of his earning capacity, contacts, opportunity and experience obtained in the media industry and the property investment market;
· a demonstrated failure of the husband to comply with previous orders;
· an international aspect to the case and indeed, the husband had been the subject of interim restraints on his overseas travel; and
· no appearance by the husband at trial notwithstanding that the trial dates were selected to suit his convenience. Thus he was not available for cross-examination.
Further, in Brown, the parties were in their 50’s, not in their 70’s as is the case here. Given the husband’s wealth, there were fewer reasons in Brown to suppose that changes in the parties’ financial circumstances would justify a variation in the level of periodic support which, in turn, could lead to an injustice flowing from the capitalisation of maintenance.
While accepting that there are features of the two cases that are similar, I am not satisfied that it is necessary or proper to make a lump sum order in the case before me. The husband here is not a man of such wealth that the capitalisation of maintenance would have no appreciable impact on his financial circumstances. There is no suggestion that the husband would seek to remove assets from the jurisdiction to defeat a periodic order. There was no challenge to that part of the husband’s case involving the assertion that K Carter had been underpaid for his work in the business for many years, that being the alleged justification for giving him the business. On the other hand there have been enforcement proceedings and the husband concedes he was in arrears. It is vexing that the husband would stop paying maintenance in 2008 notwithstanding he could afford to pay – even on the ‘advice’ of his lawyer. Nevertheless I am not convinced that the problems and potential unfairness of a lump sum order are warranted.
I flagged with the parties that I might impose on the husband a notice provision to give the wife some comfort about ongoing compliance. I propose to order that the husband give at least 2 months prior written notice to the wife’s solicitors before the net value of his combined interests in real estate and superannuation is reduced below $200,000.
The wife’s application will fail.
I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan
Associate:
Date: 25 February 2011
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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