Fabron and Fabron

[2020] FamCA 30

FAMILY COURT OF AUSTRALIA

FABRON & FABRON [2020] FamCA 30

FAMILY LAW – PROPERTY – INTERIM PROPERTY – Where the wife seeks a child support departure order and orders for further disclosure – Where the husband is already paying substantial child support and a tax debt – Where it is determined that the mother has failed to establish that the husband has capacity to pay unless the former matrimonial home is sold which the mother opposes – where it is determined that it is not just and equitable or otherwise proper to make an order for child support departure – orders made by consent for further disclosure – wife’s application and husband’s response otherwise dismissed.

Child Support Assessment Act 1989; s 117; Family Law Act 1975; s 117
APPLICANT:	Mr Fabron

RESPONDENT: Ms Fabron

FILE NUMBER: SYC 1089 of 2019

DATE DELIVERED: 13 January 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: McEvoy J

HEARING DATE: 13 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr S Rogers

SOLICITOR FOR THE APPLICANT: Barkus Doolan

COUNSEL FOR THE RESPONDENT: In Person

SOLICITOR FOR THE RESPONDENT: Self-represented

Orders

BY CONSENT:

1. As soon as practicable the husband will use his best endeavours to obtain a copy of the Deed dated … 2017 evidencing the matrimonial regime adjustment of Mr B Fabron and Ms C.

IT IS ORDERED:

1. The wife’s Application in a Case filed 19 September 2019 be otherwise dismissed.

2. The husband’s Response to Application in a Case filed 18 November 2019 be dismissed.

THE COURT NOTES:

A.The matter be referred back to Registrar Turner for further directions.

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 Fabron & Fabron 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 SYDNEY

FILE NUMBER: SYC 1089 of 2019

Mr Fabron

Applicant

And

Ms Fabron

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Before me is an application in a case filed 19 September 2019 by the wife seeking a series of interim orders in the nature of further disclosure, a departure from a child support assessment, the payment of a sum of $10,112, and a series of orders amounting to what is, in effect, a dollar for dollar order. The need for orders 1-4 sought in the application has fallen away, and the wife no longer presses this relief.

2. The position is that the parties have been able to agree what further disclosure should be provided, and, as I understand it, that disclosure has now been provided. They have agreed also in relation to an order which is to be made that the husband use his best endeavours to obtain certain information from his mother in France. Insofar as the wife’s application is concerned, therefore, other than this consent order that I have mentioned, no further orders are sought at this time in relation to disclosure.

3. The mother’s application for a child assessment departure order is pressed in the form in which it is articulated in her application, with the addition of an alternative formulation which would, in essence, require the husband to pay a lump sum figure per month of $5000. That is by way of alternative to the relief that is sought in the application. 

4. Insofar as the wife seeks that the husband pay a sum of $10,112, which she says is referrable to the costs incurred by her in obtaining a Country D valuation which is not the cost of the valuation itself, but the legal fees incurred by her in having arrangements put in place, the wife does not press that application at present. She says that this is something which, in due course, she will seek to have credited in her favour from the matrimonial pool. It is also the case that the wife does not press her application for the orders constituting the dollar for dollar order at the present time.

5. The husband filed a response on 18 November 2019 which, in substance, seeks orders that the family home where the wife and children are presently residing be sold.  Counsel for the husband has indicated that this relief will not be pressed if no departure order is made.

6. The wife relies on an affidavit which she filed on 19 September 2019.  The husband relies on an affidavit filed on 18 November 2019, together with an updating affidavit which he swore on 10 January 2020, and which was filed in Court today, 13 January 2020. Both parties have filed an outline of argument.

7. Dealing first with the disclosure issue, I will make an order by consent that as soon as practicable the husband use his best endeavours to obtain a copy of the deed dated … 2017 evidencing the matrimonial regime adjustment of Mr B Fabron and Ms C.

8. Turning to the departure orders sought by the wife, the wife has made an application pursuant to s 117 of the Child Support Assessment Act 1989 (“the Act”) for a departure from the administrative assessment of child support payable by the father for the children, such that the father should pay, in addition to the Child Support Agency’s assessment, 100 per cent of the children’s private school fees, and any education expenses, and 100 per cent of the private health insurance for the children. In the alternative the wife seeks a lump sum figure of $5000 per month.

9. The mother submits that there are special circumstances for the purposes of s 117 of the Act, and that the father has the capacity to provide the financial support sought for education at private schools, and the private health insurance costs of the children. She contends also that the father has additional earning capacity. The father, by contrast, submits that there are no special circumstances, and that even if there were, he has no capacity to pay more than the existing assessment. He submits also that the wife has made inadequate disclosure of her own financial position, including what she has done with some $290,000 of funds withdrawn from the parties’ joint accounts, the detail of which is set out in his initial affidavit.

10. On the evidence presently before the Court, I am not satisfied that the father has the capacity to pay an amount significantly above the amount that he is already paying, unless the family home was to be sold. The mother opposes this course.

11. The father’s financial statement of 18 November 2019 evidences that at present the father is unable to meet his own financial obligations, there being a shortfall of approximately $1000 per week. Insofar as the wife says the father has a capacity to derive more money from his mother or his family trust in France, it has not been established by the evidence before me that this is necessarily so.

12. I also have some concern about the extent to which the mother has properly disclosed the expenditure of the parties’ joint funds which she has made, and the present income and income earning ability that she has.  In particular, I am not content on the state of the evidence at the moment that the mother is earning at a capacity which she could, in fact, be earning at.

13. In all the circumstances therefore I am not satisfied that, even if there were grounds for departure as provided by s 117(2) of the Act, it would be just and equitable and otherwise proper for the purposes of s 117(1)(b)(ii)(A) and (B) of the Act (having regard in this connection to the requirements of subsections 117(4) and (5) of the Act) to make an order of the kind sought by the wife under Division 4 of Part 7 of the Act. Accordingly, I decline to make an order in the terms of order 6 as amended in the wife’s application of 19 September 2019.

14. There being nothing further I will otherwise dismiss the wife’s application in a case filed 19 September 2019 and the husband’s application in a case filed 18 November 2019.

15. The wife has also sought an order that the husband pay her costs of and incidental to this application, and the husband has sought an order in similar terms. The wife has been unsuccessful in her application for a departure order, and she has abandoned her dollar for dollar order application. Although I accept that there is, to some extent, an element of ambiguity in relation to the circumstances surrounding the attempt to obtain the Country D valuation, which was part of the context of the wife’s application, it does seem to me that the husband has been somewhat dilatory in complying with his disclosure obligations. Nonetheless, in circumstances where the wife has been unsuccessful in relation to the departure order application I am not inclined to depart from the usual rule expressed in s 117(1) of the Family Law Act 1975 that each party to proceedings will bear their own costs.  There will be no order as to costs.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McEvoy delivered on 13 January 2020.

Associate: 

Date:  13 February 2020