FABRON & FABRON
[2020] FamCAFC 274
•9 November 2020
FAMILY COURT OF AUSTRALIA
| FABRON & FABRON | [2020] FamCAFC 274 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Child support departure order – Where the primary judge dismissed the applicant mother’s application for a child support departure order – Where the respondent father’s ability and capacity to pay weighed against making the order sought – Adequate reasons – Where the primary judge’s decision is not attended by sufficient doubt to warrant it being reconsidered by the Full Court – Application for leave to appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Adduce further evidence – Where the proposed evidence is controversial – Where the Application in an Appeal was not filed in accordance with r 22.39 of the Family Law Rules 2004 (Cth) – Application dismissed. |
| Child Support (Assessment) Act 1989 (Cth) ss 102, 117 Family Law Rules 2004 (Cth) r 22.39 |
| Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 |
| APPLICANT: | Ms Fabron |
| RESPONDENT: | Mr Fabron |
| FILE NUMBER: | SYC | 1089 | of | 2019 |
| APPEAL NUMBER: | EAA | 17 | of | 2020 |
| DATE DELIVERED: | 9 November 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Aldridge & Austin JJ |
| HEARING DATE: | 9 November 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 January 2020 |
| LOWER COURT MNC: | [2020] FamCA 30 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Othen |
| SOLICITOR FOR THE APPLICANT: | Michael Conley Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Barkus Doolan |
Orders made on 9 November 2020
The Application in an Appeal filed on 6 November 2020 be dismissed.
The application for leave to appeal be dismissed.
The applicant wife pay the costs of the respondent husband fixed in the sum of five thousand two hundred and forty three dollars and forty cents [$5,243.40].
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EAA 17 of 2020
File Number: SYC 1089 of 2019
| Ms Fabron |
Applicant
And
| Mr Fabron |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Aldridge J
Ms Fabron (“the applicant”) seeks leave pursuant to s 102(1)(a) of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) to appeal, and if leave is granted, to appeal a decision of a judge of the Family Court of Australia dismissing her application for a child support departure order pursuant to s 117 of the Act. The application is opposed by Mr Fabron (“the respondent”).
By an Application in a Case filed on 19 September 2019, the applicant sought, amongst other orders, the following order:
6.Pursuant to section 117 of the Child Support (Assessment) Act 1989 [Cth] there be a departure from the administrative assessment of child support payable by the [respondent] for the children, such that the [respondent] shall pay:
(a)as assessed by the Child Support Agency from time to time, with the first payment to be made on the first day of the month after the date of these Orders and on the first day of each month thereafter, until the children attain the age of 18 years or completes their secondary education, whichever is the latter; and
(b)100% of the children’s private school fees and any education expenses, in which the children are enrolled in from time to time as agreed in writing by the parties; and
(c)100% of the Private Health Insurance for the children, including cover for private hospital, optical, physiotherapy, dental, orthodontic, doctors’ bills, and operations. The gap fee required to be paid to Medicare and the Private Health Insurance … any such medical and health expenses for non-elective and elective treatment incurred as agreed between the parties in writing in respect of the child that are not able to be recovered from the said health fund of Medicare for example medication and prescriptions, and specialists.
The parties have two children of school age, X who was born in 2003, and Y who was born in 2005 (“the children”). Throughout the children’s school lives, they have attended private schools. Their private school fees are each in the order of approximately $30,000 per year.
The applicant deposed that on 4 June 2018 the respondent informed her that he no longer intended paying the children’s school fees (the applicant’s affidavit filed on 19 September 2019, paragraph 89). Accordingly, the applicant transferred the sums of $140,000 and $195,000 (a total of $335,000) from joint accounts held with the respondent into an offset account controlled by her. The applicant’s evidence was that these funds were for “the children’s living expenses including their school fees”, which she has paid since that time from the funds in that account (the applicant’s affidavit filed on 19 September 2019, paragraphs 90–91).
The respondent’s response to the application was that he did not oppose the children continuing at their respective private schools but contended that he did not have the means to pay for them himself. The respondent proposed instead that the former matrimonial home, in which the applicant and the children were living, be sold so as to provide funds to permit the children to continue to attend private schools.
The respondent’s evidence by way of a Financial Statement filed on 18 November 2019 was that he had an average weekly income of $4,215 and weekly expenditure of $5,258. The affidavit filed by him on 18 November 2019 disclosed an income of $4,615 per week. On that basis, the increase in income was of the order of $270 per week (on the likely assumption that the respondent was paying income tax at 33 per cent per annum). Included in the payments made by him was $5,000 per month to the Australian Taxation Office (“ATO”) in respect to a debt that he owed to it. At the time of the hearing before the primary judge, the Court was informed that approximately $42,000 of the respondent’s debt to the ATO remained owing (Transcript 13 January 2020, p.28 line 21–23). Between August 2018 and 10 September 2019, the respondent had paid $34,187 in child support payments (the applicant’s Case Outline dated 13 January 2020, paragraph 53). In about May 2019, the Child Support Agency assessed payments to be $3,527 per month (the applicant’s Case Outline dated 13 January 2020, paragraph 56).
This led the primary judge to conclude in his ex tempore reasons, given with the benefit of extensive written submissions and also oral submissions, as follows:
10.On the evidence presently before the Court, I am not satisfied that the [respondent] 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 [applicant] opposes this course.
11.The [respondent’s] financial statement of 18 November 2019 evidences that at present the [respondent] is unable to meet his own financial obligations, there being a shortfall of approximately $1000 per week. Insofar as the [applicant] says the [respondent] has a capacity to derive more money from his mother or his family trust in [Country D], 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 [applicant] 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 [applicant] 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 [applicant] 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 [applicant’] application of 19 September 2019.
His Honour therefore did not embark on a discussion of any of the other matters to be considered under s 117 of the Act because, having regard to the difficulties with the respondent’s ability and capacity to comply with any order, it could not be just and equitable to make one, even assuming all the other considerations were resolved in favour of the applicant. It is clear that the income, property and financial resources (s 117(4)(d)), and the earning capacity of each parent who is a party to the proceeding (s 117(4)(da)) is a relevant consideration to be taken into account and thus the primary judge was obliged to take the respondent’s financial position into account.
If granted leave to appeal, the applicant proposes to rely upon an Amended Notice of Appeal filed on 2 March 2020, which raises nine grounds of appeal. Ground 2 however raises some 39 sub-grounds, Grounds 3 and 6 raise five sub-grounds each, Ground 4 raises three sub-grounds, Ground 5 raises eight sub-grounds and Ground 9 raises four sub-grounds – a total of, in effect, 67 grounds of appeal. That is an extraordinary reaction, even allowing for repetition and overlapping in the grounds of appeal, to a judgment of just 15 paragraphs, only eight of which related to the application for a child support departure order.
By an Application in an Appeal lodged shortly prior to the hearing of the appeal, the applicant sought to rely on further evidence, which suggested that in March 2020, the ATO agreed to a new repayment schedule of $1,000 per month until March 2021 and $1,640.54 thereafter. The application should have been filed 14 days before the hearing of the appeal, which would have given the respondent the opportunity to reply to it (r 22.39 of the Family Law Rules 2004 (Cth)). The proposed evidence is controversial in the sense that the respondent would wish to adduce evidence to show that the arrangement came about because his income had fallen due to COVID-19 changes to his income. Having regard to that, and to the late filing of the application, I would dismiss it.
The first ground of appeal is that inadequate reasons for judgment were given. The reasons why the application was dismissed, however, emerge pellucidly from the above passages and are therefore adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266–78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58]–[59]). Any difference in the shortfall of the respondent’s income between approximately $1,000 and $600 per week or even $770 per week is not material.
The thrust of many of the sub-grounds is that the primary judge did not make findings identifying special circumstances that would justify one of the grounds of departure identified in s 117(2) of the Act being established or other facts that might lead to such an order being made. Such grounds are, in my opinion, entirely irrelevant. They have no bearing on the correctness of the primary judge’s finding that the respondent’s ability and capacity to pay weighed against making the order sought. If his Honour was wrong, then these matters would need to be considered on a rehearing of the matter but only at that stage.
It is said by the applicant, for example, that his Honour failed to make findings as to the respondent’s “income earning ability” (Ground 2(z)); “earning capacity in addition to his current income” (Ground 2(bb)) and “previous significant additional income earning ability” (Ground 5(b)).
The applicant submitted that the respondent has the capacity to earn more than he is currently earning because from 2011 to 2015 his average income of approximately $580,000 greatly exceeded his current income of approximately $240,000 per annum (the applicant’s Summary of Argument filed on 4 June 2020, paragraph 38). However, it was not in dispute that the respondent was made redundant in 2016 and was unemployed for a period of time thereafter. In 2017 and 2018, the respondent earned $100,000 per annum before obtaining his current employment. The fact that the respondent had the ability between 2011 and 2015 to earn a very high income does not of itself establish that such a position is still available to him. Indeed, that brief history points to the contrary.
The applicant could not point to any evidence that demonstrated that such a capacity actually existed and that there were positions reasonably available to the respondent which carried a higher remuneration.
Next, the applicant submitted that the primary judge did not consider the respondent’s financial situation upon repayment of his debt to the ATO in September 2020. That is so, but his Honour was dealing with the application that was before him at the time. In any event, there was no submission put to his Honour that such a course might be taken (Metwally v University of Wollongong (1985) 60 ALR 68 at 71). The applicant can hardly complain now that the primary judge erred by not making such an order.
Finally, it was submitted that the primary judge did not give consideration to “the combination of the undisputed arrangement between the [respondent] and his mother and funds made available to the [respondent] by his mother” (the applicant’s Summary of Argument filed on 4 June 2020, paragraph 78).
It is clear that the respondent has an interest (to use that word very loosely) of some kind in a property in Country D. The respondent’s parents apparently have or had property in Country D, which according to counsel for the respondent at the hearing before the primary judge, would have ordinarily passed to the respondent and his sisters but became subject to a deed so that it first went to his mother pending her death. It was said that was a common way of inheritances being “pre-established” by arrangement in Country D (Transcript 13 January 2020, p.37 line 37).
The exact nature of any interest held by the respondent and whether it is presently available to him is not clear, partly because discovery on the issue is not yet complete. The primary judge dealt with this issue on the same day as the hearing of the present application and there is obviously much work to be done before the position becomes known.
Nonetheless, the applicant relied upon the property in Country D and the arrangement made as to it by the respondent’s family, whatever it may be, and the fact that the respondent had borrowed approximately $80,000 from his mother for legal fees, and possibly living expenses, to submit that the respondent could rely on that arrangement or call on his mother for the payment of any amount that the Court determined should be paid by way of a child support departure order.
As the primary judge said, the evidence does not establish that such an entitlement exists. The applicant was unable to identify evidence that established the contrary.
Thus, the findings made by the primary judge as to the respondent’s income and earning capacity inevitably lead to the conclusion that the respondent could not meet any child support departure order that could be made. In those circumstances, it is difficult to see how it would either be just and equitable or otherwise proper for the Court to make an order as sought by the applicant.
The challenge made by the applicant that the primary judge did not make a number of other findings that could have been made on such an application is misconceived. It would have been pointless to do so. I do not see any error in the primary judge moving directly to the critical issue that led to the dismissal of the application.
Accordingly, I can see no error in the orders made by his Honour.
For these reasons, I am not satisfied that the primary judge’s decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court (Medlow & Medlow (2016) FLC 93-692 at [57]).
In my opinion, the application for leave to appeal should be dismissed.
The application for leave to appeal has been wholly unsuccessful (s 117(2A)(e) of the Family Law Act 1975 (Cth)) and no submissions were made to oppose a costs order in the sum claimed. Accordingly, I would propose the following orders:
(1)The Application in an Appeal filed on 6 November 2020 be dismissed.
(2)The application for leave to appeal be dismissed.
(3)The applicant pay the respondent’s costs in the sum of $5,243.40.
Austin J
I agree with the orders proposed and the reasons given by Justice Aldridge.
Strickland J
I too agree with the orders proposed and the reasons given for those orders by his Honour.
The orders of the Court will be:
(1)The Application in an Appeal filed on 6 November 2020 be dismissed.
(2)The application for leave to appeal be dismissed.
(3)The applicant wife pay the costs of the respondent husband fixed in the sum of five thousand two hundred and forty three dollars and forty cents [$5,243.40].
I certify that the preceding thirty (30) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Austin JJ) delivered on 9 November 2020.
Associate:
Date: 12 November 2020
2
3