CASSIDY & SIBLY

[2015] FamCA 335

FAMILY COURT OF AUSTRALIA

CASSIDY & SIBLY [2015] FamCA 335

FAMILY LAW – PRACTICE & PROCEDURE – Stay – stay of orders pending delivery of judgment – where husband seeks a stay of garnishee orders – wife opposed application for stay – stay granted pending delivery of final judgment. 

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43

APPLICANT: Mr Cassidy

RESPONDENT: Ms Sibly

FILE NUMBER: DNC 570 of 2010

DATE DELIVERED: 1 May 2015

PLACE DELIVERED: Adelaide

PLACE HEARD: Darwin

JUDGMENT OF: Dawe J

HEARING DATE: 8 September 2014, 15 – 16 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: n/a

SOLICITOR FOR THE APPLICANT: In Person (by Cisco Jabber)

COUNSEL FOR THE RESPONDENT: Ms Farmer

SOLICITOR FOR THE RESPONDENT: Withnalls Lawyers

Orders

1. The garnishment of funds from the wages of the husband pursuant to the administrative assessment of Child Support be stayed pending further order. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cassidy & Sibly has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 570 of 2010

Ms Sibly

Applicant

And

Mr Cassidy

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment concerns an application by Mr Cassidy (“the husband”) for a stay of the garnishing of his wages pursuant to an order of the Superior Court of Ontario for child support and spouse maintenance.  Ms Sibly (“the wife”) opposed the application.  The wife has not obtained legal representation and has appeared by Cisco-Jabber for the balance of the Family Court proceedings.

2. In his Amended Response filed on 24 June 2014 the husband seeks a final order that would see his liability for child support and spouse maintenance arrears discharged and any future liability “reduced to nil” by way of a departure order.  The husband sought additional orders for a superannuation splitting order and that each party retain chattels and property currently in their possession.  The interim orders sought a stay of the collection of funds pursuant to an administrative assessment of child support and the listing of the matter for trial as soon as possible. 

3. The wife opposed the husband’s application for a stay.  In her Amended Initiating Application (which appears in the form of an Application in a Case filed on 19 August 2014 and made an “Amended Initiating Application” by Order of the Court on 8 September 2014) the wife seeks final orders that would see the husband permanently restrained from pursuing the wife for costs ordered and owed, orders for lump sum payments associated with superannuation, personal property and costs associated with travel between Canada and Australia.

Background

1. The wife is a Canadian citizen who met the husband while working in Australia.  The parties commenced cohabitation in October 2004 and married in 2005.  There are two children of the marriage, R (“R”) born in Ontario, Canada in 2005 and K (“K”) born in Ontario, Canada in 2010.  

2. Throughout their marriage the parties travelled to and from Canada for extended periods of time for both work and family commitments.  The date of separation is the subject of dispute but on either case occurred sometime in late 2009. 

3. The wife returned to Canada in late September 2009 with R.  The husband filed an application for the return of the child pursuant to the Hague Convention.  The Hague Convention proceedings concluded in late 2010 and the wife was ordered to return the child R to Australia.  The wife appealed the orders but the Court of Appeal dismissed the application and in January 2011 the father travelled to Canada to collect and return the child R to Australia. 

4. The child K remains in Ontario, Canada with the wife.  K has never travelled to Australia.

5. On 19 January 2011 the wife was ordered to pay the husband’s costs of the Hague Convention proceedings, including the appeal, in the sum of $17,500. 

6. The wife pursued an application for monthly spouse maintenance and child support for the child K through the Canadian courts.  Final orders were made by Justice DC Shaw of the Superior Court of Ontario on 19 January 2011.  Further orders for child support and spouse maintenance were made by Justice JS Fregeau on 29 January 2014.  In summary, the orders provide the wife have custody of the child K and the husband pay child support in the sum of $386 per month and spousal support in the sum of $700 per month with payments to commence on 1 January 2011. 

7. The wife registered the orders with the Ministry of Community and Social Services Ontario (also known as “Ontario Works”), on 17 March 2011.  Ontario Works is the Canadian equivalent of the Child Support Agency (“the CSA”).

8. The husband has not paid child support or spousal maintenance.  On 30 June 2012 the husband received a notification from the CSA informing him of arrears of $18,097.26 with payment due immediately.  The reciprocal arrangement between the two jurisdictions enables the Australian CSA to collect payments pursuant to the Canadian orders.

9. The husband was unable to pay the arrears and consequently the CSA has garnished these payments from his wages, with interest and penalties.  The deductions by the CSA first occurred on 11 December 2012 and as of 2 June 2014 the sum of $998.69 is garnished from the husband’s wages each fortnight. 

10. The wife was also assessed as liable for child support payments, for the child R, by the CSA in the sum of $1,284 per annum. 

11. The husband now applies for a stay of the garnishing of his wages until further order. 

12. The application for a stay was heard in Darwin on 8 October 2014.  The wife appeared in person via Cisco Jabber from Ontario, Canada.  The husband was represented by counsel.

13. I reserved judgment in relation to the stay on 8 September 2014 but having subsequently received further information from the mother at the later hearings the matter was re-opened and I reserved my decision at the conclusion of the final hearing on 16 October 2014.

The Law

1. The making of an order for a stay “is wholly discretionary and the circumstances that would justify an order for a stay depend on the circumstances of each case” (Friscioni & Friscioni [2009] FamCAFC 43 at [54]).

2. The principles applicable to the granting of a stay are well settled.    In Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 the Full Court listed the factors relevant to the exercise of discretion:

   ·the onus to establish a proper basis for the stay is on the applicant for the stay.  However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;

   ·a person who has obtained a judgment is entitled to the benefit of that judgment;

   ·a person who has obtained a judgment is entitled to presume the judgment is correct;

   ·the mere filing of an appeal is insufficient to grant a stay;

   ·the bona fides of the applicant;

   ·a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;

   ·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;

   ·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

   ·the desirability of limiting the frequency of any change in a child’s living arrangements;

   ·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

   ·the best interests of the child the subject of the proceedings are a significant consideration.

3. While not an application for a stay pending appeal I have regard to the factors outlined above which are relevant to a stay pending delivery of judgment.

Submissions

1. In support of his application reference was made to the manner in which the quantum of spouse maintenance and child support was assessed.  Counsel for the husband stressed there was no consideration given to the husband’s capacity to pay the spousal maintenance, the needs of the wife or the other expenses incurred by the husband such as the children’s travel costs.  Nor was there evidence before this Court as to what information was before the Canadian courts as to the wife’s financial circumstances at the time the order was made.

2. In addressing the wife’s capacity to support herself it was submitted that she has an obligation to be gainfully employed as a geologist.  The youngest child is now of school age and there is arguably a change of circumstances as to her capacity to secure employment. 

3. Similarly, counsel submitted that the current financial circumstances of the husband make it clear that he cannot meet his obligations under the January 2011 order.  The husband’s wages have been garnished for the last two years but he maintains he cannot continue to meet his obligations under the Canadian orders and meet the costs of raising R in Australia, such as the mortgage, schooling and cost of living in Darwin generally.  The husband submits this is particularly so given what he views as the mother’s negligible contribution to the support of R of $33 a month.

4. He contends that he is unable to meet his financial obligations by way of secured creditor, such as a bank loan, but accepted final orders may require the sale of property to allow the payment of a lump sum to the wife.  The husband emphasised the need for immediate financial relief while noting that any prejudice to the wife can be cured by a final order that takes into consideration the date of the stay, the date of trial and take into account any arrears.

5. It was further submitted that there could not be any significant prejudice to the wife, in terms of quantum as the husband has not recovered the approximately $17,000 owed to him as a result of the costs orders in the Canadian courts. 

6. Reference was made to the conduct of the wife by counsel for the husband.  It was submitted that the wife’s pursuit for orders in the Canadian jurisdiction was “strategic” in that the husband continues to pay interest and penalties to the detriment of one child while the mother lives in Canada seeking alteration of property in two jurisdictions. 

7. The mother claimed she is being discriminated against because she “is in poverty” and is unable to secure employment having given up her previous position to continue her relationship with the father and be a mother to her two young children.

8. The wife maintains she has been looking for work but was unable to secure a position and has returned to school in an attempt to better her employment prospects.  The wife has enrolled in a one year diploma in Human Resources Management. 

9. It was the wife’s submission that without the ongoing support of the husband she will be unable to continue her studies and consequently will not be able to provide K with an appropriate standard of living.  The wife referred to the difficulties caused by the husband’s initially delayed payment which resulted in financial hardship and prevented her from being self-sufficient. 

10. The wife was critical of the husband’s submission that she is failing to adequately contribute to the costs of R and submits that she is contributing as much as she can on her limited income and living in an area with, in her opinion, an equally high cost of living.

11. The wife says it is not an open ended order as she is required to serve the husband each year with her annual income and if her income increases the support from the husband decreases.

Consideration

1. The wife opposed the application for a stay of the garnishment of the child support orders on the basis that she would be unable to continue with her course of study and provide for K without the husband’s ongoing financial support until the conclusion of her course in April 2015.  The wife will have now completed her studies.  The child K is now of an age at which he should be attending school and accordingly the wife has a greater capacity to undertake employment.

2. The husband’s financial circumstances are set out in his Financial Statement filed 18 August 2014.  The husband estimates his average weekly income to be approximately $1,500.  Including his maintenance and support obligations the husband estimates his total expenditure for the same period to be $1,943.

3. The wife is seeking an order that the husband be restrained from pursuing the wife for payment of outstanding costs.  Counsel for the husband notes it is an order the husband would consent to on the condition that it be considered by way of set off for another financial obligation the husband may have, be it future or past obligation.  While not the subject of this judgment I note the outstanding costs orders are of similar quantum to the child support and spouse maintenance arrears.

4. The trial concluded on 16 October 2014 and that judgment is reserved.  A stay granted now will be of only a short duration.  Any prejudice to the wife could to some degree be remedied by final orders for payment of arrears, or other lump sum as determined with reference to the current child support and spouse maintenance assessments. 

Conclusion

1. I intend to make orders that stay the garnishing of the husband’s wages by the Child Support Agency until further order.

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 May 2015.

Associate: 

Date:  1 May 2015