FALCONER & BABETT - [2013] FCCA 1845

FEDERAL CIRCUIT COURT OF AUSTRALIA

FALCONER & BABETT

[2013] FCCA 1845

Catchwords:
CHILD SUPPORT – Departure Order – Interim Order – Consent Order – departure from administrative assessment of child support – where grounds for departure established – special needs of child – children being educated in the manner that was expected by their parents – whether just and equitable to make a departure order – capacity of liable parent to pay – whether order otherwise proper – primary duty of parents to maintain their children.

FAMILY LAW – Property – application for property settlement – relationship of 12 years – contributions – assessment of contributions – loan from applicant’s mother regarded as contribution on behalf of the applicant – post separation contribution to the welfare of the parties’ children – whether adjustment under Family Law Act 1975 (Cth) s.75(2) warranted.

COSTS – Party seeking an order for costs to file and serve an affidavit within 28 days.

Legislation:
Child Support (Assessment) Act 1989 (Cth) ss.3, 4, 12, 116, 117
Family Law Act 1975 (Cth) ss.79, 90MT

Cases cited:
Gosper & Gosper (1987) 90 FLR 1; 11 Fam LR 601; FLC 91-818
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Kessey & Kessey (1994) 18 Fam LR 149; FLC 92-495
Pellegrino & Pellegrino (1997) 22 Fam LR 474; FLC 92-789
Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518
Williams v Williams [1985] HCA 52; (1985) 61 ALR 215; 10 Fam LR 355; FLC 91-628

Applicant:

MS FALCONER

Respondent:

MR BABETT

File Number:

SYC 6278 of 2011

Judgment of:

Judge Scarlett

Hearing dates:

15 &16 May 2013

Date of Last Submission:

16 May 2013

Delivered at:

Sydney

Delivered on:

13 November 2013

REPRESENTATION

Senior Counsel for the Applicant:

Mr Schonell SC

Solicitors for the Applicant:

Paul & Paul Lawyers

The Respondent:

Appeared in person

ORDERS

PROPERTY ORDERS

Forthwith upon the making of these Orders the Applicant and the Respondent are to do all acts and things and sign all documents necessary to cause to be paid to the Applicant’s nominated bank account the funds standing to the credit of the parties in the trust account of (omitted).
Forthwith upon the making of these Orders the Applicant and the Respondent are to do all acts and things and sign all documents necessary to cause the funds standing to the credit of the parties in the Matthews Folbigg Controlled Monies Account to be paid to the Applicant’s nominated bank account or as she may otherwise direct in writing.
Within one (1) month of the making of these Orders the Applicant is to:
(a)Transfer and assign to the Respondent all of her right, title and interest in the company (omitted) Pty Ltd and provide all associated documents in her possession;
(b)Transfer and assign to the Respondent all of her right, title and interest in any loan account with (omitted) Pty Ltd;
(c)Resign from each and every office that she…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading FALCONER & BABETT

Details

AGLC: FALCONER & BABETT [2013] FCCA 1845
Case: [2013] FCCA 1845
Decision Date: 13 November 2013

CaseChat Overview and Summary

In this matter before Judge Scarlett, the Applicant and Respondent sought final property orders and child support departure orders. The dispute concerned the division of the parties' assets and liabilities following a 12-year relationship, and an application to depart from the standard child support administrative assessment due to the special needs of the children and their education.

The court was required to determine the appropriate property settlement, considering the parties' respective contributions, including a loan from the Applicant's mother and post-separation contributions to the children's welfare, and whether an adjustment under section 75(2) of the *Family Law Act 1975* (Cth) was warranted. Additionally, the court had to consider whether it was just and equitable to make a departure order from the child support assessment, taking into account the children's special needs, their education in the manner expected by their parents, the liable parent's capacity to pay, and the primary duty of parents to maintain their children.

The court made extensive property orders, including the immediate payment of funds to the Applicant, the transfer of company interests and trust entitlements to the Respondent with an indemnity for the Applicant, and a division of superannuation interests. The court also made child support departure orders, setting a weekly amount per child and ordering the Respondent to pay specific expenses for the children's health and education, including arrears. The court further stipulated that any future payouts from the Respondent's employment were to be directed towards child support arrears. The interim order of 16 May 2013 was discharged.

Orders

Orders of the court

PROPERTY ORDERS

Forthwith upon the making of these Orders the Applicant and the Respondent are to do all acts and things and sign all documents necessary to cause to be paid to the Applicant’s nominated bank account the funds standing to the credit of the parties in the trust account of (omitted).

Forthwith upon the making of these Orders the Applicant and the Respondent are to do all acts and things and sign all documents necessary to cause the funds standing to the credit of the parties in the Matthews Folbigg Controlled Monies Account to be paid to the Applicant’s nominated bank account or as she may otherwise direct in writing.

Within one (1) month of the making of these Orders the Applicant is to:

(a) Transfer and assign to the Respondent all of her right, title and interest in the company (omitted) Pty Ltd and provide all associated documents in her possession;

(b) Transfer and assign to the Respondent all of her right, title and interest in any loan account with (omitted) Pty Ltd;

(d) Sign any document that may be provided to her by the Respondent that has the effect of transferring or assigning to the Respondent any right, position, power or interest in the The (omitted) Property Trust and the (omitted) Property Investment Trust and otherwise relinquishing any right, position or control that she holds in relation to such settlement.

That from the date of transfer in accordance with Order (3) above the Respondent must do all acts and things necessary to indemnify and keep indemnified the Applicant against all liabilities whether actual or contingent, suits, demands, causes of action or claims of whatsoever kind or nature that may be brought against the Applicant in relation to or arising in relation to:

(a) (omitted) Pty Ltd;

(b) The (omitted) Property Trust;

(d) Any personal liability of the Respondent; and

(e) Any guarantee or guarantees into which the Applicant has entered or otherwise provided prior to 1 March 2010 whether as a director, shareholder or guarantor or otherwise of (omitted) Pty Ltd, the (omitted) Property Trust or the (omitted) Property Investment Trust.

In accordance with section 90MT(1)(b) of the Family Law Act 1975, the Applicant is to be paid 70% of the value of the Respondent’s interest in the (omitted) Fund – superannuation fund and the Respondent and (omitted) Fund as trustee of the (omitted) Fund –superannuation fund are to do all acts and things and sign all documents and give all consents to give effect to these and there shall be a corresponding reduction in the entitlement of the Respondent in the (omitted) Fund –superannuation fund had these Orders not been made.

The trustee of the (omitted) Fund –superannuation fund is to do all acts and things and sign all documents as may be necessary to:

(a) calculate in accordance with the requirements of the Family Law Act 1975 the entitlement awarded to the Applicant in the immediately preceding Order; and

(b) pay the entitlement whenever the Trustee makes a splittable payment from the Respondent’s interest in the (omitted) Fund –superannuation fund.

The preceding two Orders shall have effect from the operative time and the operative time is the fourth (4th) business day after which a copy of these orders is served upon the trustee of the (omitted) Fund –superannuation fund.

After service of the payment split notice in accordance with the Superannuation Industry (Supervision)Regulations 1994 the trustee of the (omitted) Fund –superannuation fund is to do all acts and things and sign all documents necessary including but not limited to exercising the Applicant’s request in accordance with the Superannuation Industry (Supervision) Regulations for the rollover or transfer of the Applicant’s interest into a complying superannuation fund of the Applicant’s choosing in accordance with the Superannuation Industry (Supervision) Regulations.

The trustee having been accorded procedural fairness in relation to the making of these Orders, these Orders bind the trustee of the (omitted) Fund – superannuation fund.

10.

Subject to the Respondent complying with the terms of these Orders, as against the Applicant he is and will be the sole owner of the and the Applicant has no interest in:-

(a) All bank accounts in his name;

(b) His personal effects;

(d) His superannuation entitlements;

(e) All real and personal property of whatsoever nature and kind in his possession or name at the date of these Orders; and

(f) All real and personal property of whatsoever nature and kind which may come into his possession after the date of these Orders.

11.

Subject to the Applicant complying with the terms of these Orders, as against the Respondent she is and will be the sole owner of and the Respondent has no interest in:

(a) All bank accounts in her name;

(b) Her personal effects including any furniture and effects removed from the former matrimonial home by her;

(d) All real and personal property of whatsoever nature and kind in her possession or name at the date of these Orders; and

(e) All real and personal property of whatsoever nature and kind which may come into her possession or name after the date of these Orders.

12.

Except as specifically provided for by these Orders to the contrary, the Applicant and the Respondent hereby indemnify each other from and in respect of all actions, claims, suits and demands as may be made against them in relation to all liabilities in the name of each other.

CHILD SUPPORT DEPARTURE ORDERS

13.

In accordance with Section 117 of the Child Support (Assessment) Act 1989 there is to be a departure from the Administrative Assessment of Child Support dated 14 July 2011 by providing that the amount payable by the Respondent from 14 October 2011 is the sum of $400.00 per week per child in the total amount of $3,466.67 per month, such payment to be made on the first day of each month and to be paid by way of monthly instalments to the Applicant’s nominated bank and the final payment to be made on the happening of a terminating event as defined by Section 12 of the Child Support (Assessment) Act 1989 or such child completes his secondary education whichever is the latter.

14.

For the purpose of the implementation of the preceding Order the Respondent must pay all arrears of child support to date to the Applicant’s nominated bank account within one (1) month of the date of these Orders and in the event the Respondent does not pay the arrears by the said date the Applicant is to have leave to file and serve an Application in a Case seeking enforcement of this Order. In addition to the periodic amount payable by the Respondent in the preceding Order the Respondent is to pay the following expenses for the children X born (omitted) 1998 and Y born (omitted) 2001:

(a) All instalments at the present scale to the Medibank Private Health Fund including cover for private hospital, optical, physiotherapy, dental and orthodontic expenses in respect of the children and in addition to pay any medical, dental, hospital or orthodontic expenses incurred in respect of either of the children not recoverable from Medicare or Medibank Private Health Fund; and

(b) All tuition fees in respect of the attendance by each of the children X born (omitted) 1998 and Y born (omitted) 2001 at (omitted) College or such other school as the Applicant and the Respondent may agree from time to time including all school excursion fees and levies shown on school accounts and other mandatory expenses associated with the children’s attendance at (omitted) College.

15.

Within one (1) month of the date of these Orders the Respondent is to pay to (omitted) College all arrears of tuition fees presently outstanding.

16.

In the event that the Applicant meets at first instance any of the medical or other expenses or school expenses or arrears referred to in the preceding Orders the Respondent must reimburse the Applicant within seven (7) days of presentation of an invoice and proof of payment such reimbursement to be made by payment to the Applicant’s nominated bank account.

17.

In the event that the Respondent resigns or is made redundant or otherwise ceases to be employed at his current place of employment namely (omitted) any funds that the Respondent is to receive from (omitted) whether by way of payout for long service leave, leave entitlements or redundancy payment must be paid to the Child Support Agency on behalf of the Applicant and used to meet any arrears due to the Applicant in respect of child support.

18.

The Applicant is entitled to serve a copy of these Orders on the Respondent’s employer.

19.

The interim Order made by consent on 16 May 2013 is discharged.

20.

If either the Applicant or the Respondent wishes to apply for costs that party must within twenty-eight (28) days file and serve an affidavit setting out the amount of costs sought and the basis upon which those costs are calculated.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.