Farrant & Farrant
[2024] FedCFamC2F 100
•2 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farrant & Farrant [2024] FedCFamC2F 100
File number(s): LNC 500 of 2023 Judgment of: JUDGE TURNBULL Date of judgment: 2 February 2024 Catchwords: FAMILY LAW – SUMMARY DISMISSAL of s 79A Application – whether the Wife’s application has no reasonable prospects of success – where the parties child has significant special needs – whether the Wife can establish that the full extent of the child’s disability and needs were not known when the property order was made – whether there are exceptional circumstances that have arisen since the order was made that would lead to the child and/or the Wife to suffer hardship if the order is not varied Legislation: Family Law Act 1975 (Cth) ss 45(2) & 79A
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799
Carman & Carman [2017] FamCA 99
Christian & Donald [2008] FamCAFC 44
Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118
Curtain & Curtain [2022] FedCFamC1A 134
Fewster & Drake [2016] FamCAFC 214
Garden & Gavin (No. 2) [2010] FamCAFC 125
Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251
Milavic & Banks [2016] FamCA 884
Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171
Ritter & Ritter and Anor [2020] FamCAFC 86; (2020) FLC 93-957
Simpson & Hamlin (1984) FLC 91-576
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Whitford and Whitford [1979] FamCA 3; (1979) FLC 90-612
Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1
Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431
Division: Division 2 Family Law Number of paragraphs: 48 Date of last submission/s: 21 December 2023 Date of hearing: 21 December 2023 Place: Hobart – delivered in Parramatta Counsel for the Applicant: Mr Williams Solicitor for the Applicant: Glynn Williams Legal Counsel for the Respondent: Mr Verney Solicitor for the Respondent: Clarke & Gee Lawyers ORDERS
LNC 500 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS FARRANT
Applicant
AND: MR FARRANT
Respondent
ORDER MADE BY:
JUDGE TURNBULL
DATE OF ORDER:
2 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The interlocutory orders sought at paragraph 5(b) of the Respondent Husband’s Response filed 3 November 2023 are dismissed.
2.That the Applicant Wife’s Application in a Proceeding filed 10 October 2023 is dismissed.
3.That all and any question of costs are adjourned to the trial date.
4.The proceedings are listed for directions before Judge Turnbull at 9.30am 13 February 2024 with all parties granted leave to appear by MS Teams.
THE COURT NOTES THAT:
A.It is expected that when the matter is next mentioned, the Court will be informed as to:
(a)whether the Wife’s s79A application will be a discrete hearing;
(b)the documents to be filed by each party;
(c)the subpoenas that will be issued;
(d)the witnesses to be called by each party; and
(e)all and any other information necessary to allow the Court to understand the matters in dispute and trial time required.
B.This matter will be referred to mediation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE TURNBULL
Overview
This is an application[1] filed by Mr Farrant (‘the Husband’) to summarily dismiss an application filed by Ms Farrant (‘the Wife’), pursuant to s 79A of the Family law Act 1975 (‘the Act’), to vary a property order made 12 January 2016 (‘the Order’).[2]
[1] Response to final orders of Mr Farrant filed 3 November 2023.
[2] Initiating Application of Ms Farrant filed 10 October 2023 (‘Wife’s Initiating Application’); Application in a Proceeding of Ms Farrant filed 10 October 2023.
The Wife’s application was preceded by the Husband’s application to enforce the terms of the Order,[3] which the Wife seeks a stay until her s 79A application has been determined.
[3] Husband’s Enforcement Application filed 31 July 2023.
Short background
The parties commenced cohabitation in 2008, married in 2010, and separated in April 2013.
There is one child of the marriage — X born in 2010. X has significant special needs, including developmental delay and Autism. He has resided with the Wife since separation and has little contact with the Husband, notwithstanding the terms of parenting orders made 28 August 2015. The Wife’s ongoing need to care and provide for X is her primary motivation to seek relief pursuant to s 79A. She says that the full extent of X’s needs was not known at the time the Order was made. She explains in her affidavit:
15.[X] will require financial and personal care on going for the rest of my life and then beyond to the rest of his life. Since the separation in 2012, I have not only worked full time to financially provide for [X], but also spilt shifts around putting his needs first to care for him. This has also meant that while most people go to bed and sleep, I have had to consistently and constantly work at least another 4 hours each night after [X] goes to bed to maintain the business with everything against me, including but not limited to; a major [work] down turn that [Mr Farrant] was aware of and it hit within the first 3 months after these order were put in place, the workers comp claim that again [Mr Farrant] did and the ATO wind up application all while caring 100 % for [X].
16.Furthermore, this was all occurring in 2013 while [X] underwent major corrective surgeries requiring healing time. I spent almost 5 months without any sort of sufficient sleep due to [X] not sleeping properly, (screaming if he was laying down in bed) and needing me to walk around the house with him in my arms so he and my other children could sleep. Then, after the final surgery was completed, I did recovery physio with [X] every day for his mobility, which involved [exercises] morning and night. This resulted in [X] being able to walk.[4]
[4] Affidavit of Ms Farrant filed 10 October 2023, [15]-[16] (‘Wife’s Affidavit’).
On 12 January 2016 the parties consented to the Order, which is extracted here:
1.THAT on or before 28 days of the date of these Orders the husband shall transfer to the Wife all his right, title and interest in the former matrimonial home situate at and known as [B Street, Suburb D] in Tasmania and more particularly described in Certificate of Trtle Volume […] Folio […].
2.THAT on or before 28 days of the date of these Orders the husband shall transfer to the Wife all his right, title and interest in the former matrimonial home situate at and known as [Suburb D] in Tasmania and more particularly described in Certificate of Title Volume […] Folio […].
3.THAT on or before 28 days of the date of these Orders the husband shall transfer to the Wife all his right, title and interest in the former matrimonial home situate at and known as [C Street, Town E] in Tasmania and,more particularly described in Certificate of Title Volume […] Folio […].
4.THAT on or before 28 days of the date of these Orders the husband shall transfer to the Wife all his right, title and interest in the former matrimonial home situate at and known as [F Street, Town G] in Tasmania and, more particularly described in Certificate of Title Volume […] Folio […].
5.THAT forthwith upon the transfers referred to in orders 1 to 4 herein having taken place, the Wife shall immediately place on the market for sale all the properties referred to in orders 1 to 4 herein at a price recommended by the listing Agent and the proceeds of sale will be paid as follows:-
(a) To discharge the mortgage in favour of [H Bank] registered over the properties;
(b) To attend to payment of any and all rates and land tax outstanding with respect to the properties;
(c) Payment of Agent's commission and legal fees attributed to the sale;
(d) The balance to be divided as follows:-
(1)$160,000.00 to the husband upon the sale of the [Town G] property.
(2) The balance to the Wife.
7. THAT Wife shall retain for her own purposes the Company's known as:-
(a) [J Pty Ltd];
(b) [K Pty Ltd];
and the husband shall sign any documents provided by the Wife to ensure that he is no longer an office holder of any of the above companies.
8.THAT the Wife shall indemnify the husband and keep him indemnified in relation to any liabilities associated with the corporate entities referred to in the previous order herein namely [J] Pty Ltd and [K] Pty Ltd.
9. THAT the Wife shall relinquish any claim to the following:-
•[Motor Vehicle 1]
•[Motor Vehicle 2] and [Motor Vehicle 3] and [tools]
10. That unless otherwise specified in these Orders;-
a.each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of Order and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank's record thereof, insurance policies are deemed to be in the possession of the policy owner thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions of the payment out of such entitlements;
b. each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
The Husband states in his affidavit supporting his enforcement application,[5] that the properties referred to in paragraphs 1 to 4 of the Order have been transferred to the Wife. The Wife has not, however, complied with paragraph 5 of the Order. Consequently, the Husband seeks an Order for the sale of the property situated at F Street, Town G, more particularly described in Certificate of Title Volume … Folio … ("the Town G Property"), so that he can receive $160,000, pursuant to paragraph 5(d)(1) of the Order.
[5] Affidavit of Mr Farrant filed 31 July 2023.
The summary dismissal application was heard on 21 December 2023.
The Husband’s Submissions
Mr Verney, counsel for the Husband, relied upon the documents set out in his case outline, including a tender bundle.[6]
[6] Case Outline of Mr Farrant filed 19 December 2023 (‘Husband’s Case Outline’).
Mr Verney essentially submitted that taking her evidence at its highest, the Wife has failed to establish an arguable case to vary the Order under any part of s 79A(1), which reads as follows:
Setting aside of orders altering property interests
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(1A) A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
(1AA) For the purposes of paragraph (1)(d), a person has caring responsibility for a child if:
(a) the person is a parent of the child with whom the child lives; or
(b) a parenting order provides that:
(i) the child is to live with the person; or
(ii) the person has parental responsibility for the child.
The Wife relied on three grounds under s 79A to vary the Order:
·Subsection (1)(a) or (b) — because of the Husbands delay in taking action to enforce the Order (‘the first argument’).[7]
·Subsection (1)(a) — because the Husband suppressed evidence (‘the second argument’).[8]
·Subsection (1)(d) — because of exceptional circumstances relating to X that have arisen since the Order was made that will result in the Wife and/or X suffering hardship if the court does not vary the Order (’the third argument’).[9]
[7] Wife’s Initiating Application (n 2) [3].
[8] Ibid [4], [5].
[9] Ibid [6].
Mr Verney did not spend a lot of time on the first argument as it was not seriously pressed. Mr Williams, counsel for the Wife, made no mention of it in his case outline nor oral submissions. Mr Verney argues in his case outline:
2.It is submitted that the evidence provided by the Applicant does not support her argument that the property is unable to be sold, particularly in circumstances whereby the Applicant refuses to list the property for sale.
3.It is submitted that the delay in enforcement of the Orders of 12 January 2016 is prejudicial only to the Respondent and that that Applicant has and continues to benefit from her non-compliance with the only Order that provides benefit to the Respondent.
4.It is the Respondent’s position that even if the property was unable to be sold, that the parties had it within their control and power to take steps to give effect to the Order without the need for the Court’s intervention.[10]
[10] Husband’s Case Outline (n 6) [2]-[4].
In relation to the second argument, Mr Verney submits:
5.It is submitted that the evidence filed by the Applicant is insufficient to support an application to set aside Orders, more particularly:
a.the evidence and information that the Applicant asserts was not disclosed, was available, contemplated and within the control of the Applicant;
b.The Applicant in her own deposed evidence during the proceedings (which resulted in the making of the Orders of 12 January 2016) refers to the very issues that the Applicant asserts were not disclosed.
c. The Applicant’s clearly incorrect claims places her credibility in issue which is relevant when assessing the unsubstantiated claim of hardship should the Orders be enforced.[11]
[11] Ibid [5].
The particulars of the Wife’s allegation that Husband supressed evidence, is found at paragraphs 15 and 31 of her affidavit:
15 … I have had to consistently and constantly work at least another 4 hours each night after [X] goes to bed to maintain the business with everything against me, including but not limited to; a major [work] down turn that [Mr Farrant] was aware of and it hit within the first 3 months after these order were put in place, the workers comp claim that again [Mr Farrant] did and the ATO wind up application all while caring 100 % for [X].
….
31.At the time of the making of the Orders there were a number of serious financial issues that were unknown and not disclosed by [Mr Farrant]. These included:
(a)[Mr Farrant]’s failure to inform me and our workers compensation insurer of his systematic harassment of a family friend, [Ms L], who had in a year or so prior to the separation became an employee of ours and which resulted in a large workers compensation payments after the Orders and ongoing insurance premium hikes for years following;
(b)Taxation issues with poor or deficient record keeping and payment history which was concealed by him and which led to a winding up application against [J Pty Ltd] following the Orders, placing me under enormous stress and financial difficulties as I had to find funds that did not exist in order to keep the business solvent and incorporated. This in turn destroyed my credit rating and that of the business and caused lasting losses with high interest payments and inability to raise finances to develop the business for several years.[12]
[12] Wife’s Affidavit (n 4) [15], [31].
Mr Verney submits that all this information was known to the Wife prior to the order being made. Faced with this submission, Mr Williams obtained instructions and abandoned the first and second arguments. An Order was then made dismissing paragraphs 1,2,3,4,5 and 7 of the Wife’s Initiating Application.[13]
[13] Order of Justice Turnbull in Farrant & Farrant LNC500/2023 (Federal Circuit and Family Court of Australia, Division 2, 21 December 2023).
This left the third argument, which Mr Verney addressed in two ways.
First, he argued that there are no exceptional circumstances that have arisen since the Order was made relating to X’s care welfare and development. In short, he argued that X’s condition was known at the time the Order was made, resulting in the Wife receiving a generous property settlement. The Husband set out what he said was known about X’s condition in his affidavit:
16. [X] was 2 when we separated. I maintain that I was an involved parent. I acknowledge that during the relationship [Ms Farrant] was the primary care giver as I was the primary income earner during our relationship and, due to my work commitments, [Ms Farrant] was more available to care for [X] than I was.
17.Following our separation I had care of [X] for a number of weekends, but that arrangement was stopped by [Ms Farrant] when it became evident that there was no hope of reconciliation.
18.[Ms Farrant] then made my time with [X] limited, and spending time with him became problematic.
19.[X]'s global developmental delay and condition was referred to in the proceedings in 2015. In the Family Report dated June 2015 the family report writer refers to the assessment undertaken of [X] by the senior school psychologist [Ms M] in [late] 2014. She refers to the assessment that [X]'s results suggested Global Developmental delay.
a. At paragraph 63 the Family Report writer states:
i.“...His difficulties include physical ones such as visual problems and motor problems affecting coordination and intellectual limitations. She commented that he has difficulties communicating verbally. She explains that he needs structured routines and will learn best in these situations when concepts and skills are modelled practised and augmented by prompting cueing and visual means.
b. At Paragraph 64:
i."[X]'s long term prospects for employment or independent living are unknown however like [Mr N], [Mr Farrant]’s brother, it is likely that he will require some family support and involvement all of his life. "
c. At Paragraph 66:
i."...There is a strong likelihood that his prospects for employment and independent living in the future will be impacted by his disabilities ...parents of children with intellectual and physical disabilities often need to provide substantial and significant support not only when their children are young but throughout their lives... "
20.I acknowledged his difficulties and took steps to put myself in a better position to assist [X]. For example, as deposed in my previous affidavit filed during the proceedings, on or about 25 August 2015, I did a key word signing course in Melbourne to assist me in my communication endeavours with [X].
21.Children's Orders were made on 28 August 2015. Under those Orders it was anticipated that [Ms Farrant] would remain the primary care giver my time with [X] was limited, primarily as I lived interstate. It was Ordered I would spend time with [X] one weekend a month during term time and additional time of a week in the term school holidays and two weeks over the summer school holidays. There are obligations on [Ms Farrant] to inform me of significant medical appointments.[14]
[14] Affidavit of Mr Farrant filed 3 November 2023, [16]-[21].
Mr Verney also refers to other information provided to the Family Consultant, as detailed throughout her Family Report[15] — delivered before the Order was made:
[15] Family Report of Senior Family Consultant [Ms O] dated June 2015.
29.[Mr Farrant] said that [X] was a planned baby and that [Ms Farrant] had [surgery] to enable this to happen. Although at birth it was apparent that [X] had [a medical condition, [Mr Farrant] said that it was not until [X] was about 6 months old that they realized he was not developing as he should be.
30.In relation to [X]'s global developmental delay, [Mr Farrant] said that this was "like the too hard basket" and he added that "there's no reason for it like (there is) with cerebral palsy". [Mr Farrant] seemed ambivalent about attending medical and paramedical appointments with the mother in relation to [X], citing the family violence order and implying there would be difficulties regardless of this. As he lives interstate it might be quite difficult for him to attend.
…
45.[Ms Farrant] reported that [X] was not a child you could leave "with anyone" and that if he gets anxious or upset he starts biting and spitting. She leaves him with a friend [Ms P] who can sign to communicate with him. She expressed concern that [Mr Farrant] might leave [X]with other people in an irresponsible fashion. She expressed no faith in his ability to care for [X], and considered that [Mr Farrant] has spent little time with [X] since separation and the time that he has had with him has been "supervised" time at school/child care. Hence the step he proposes of taking what she described as "full responsibility" (meaning unsupervised overnight time) for [X] is opposed by her. [Ms Farrant] further expressed concern in relation to [X] travelling by car with his father to [Town G] saying that it would be too much travel for a day visit, [X] is very tired anyway by the weekend, and that [X] often undoes his seatbelt and you have to pull over all the time to do it up again. She reported that it is great when she has her older children in the car as well as they entertain [X] so that he is less likely to undo his seatbelt.
46. [Ms Farrant] provided information about [X] in relation to his allergy assessments, his hearing difficulties and what is and will be required for these issues. [Ms Farrant] said that she would not have a problem if [Mr Farrant] was present for any of [X]'s appointments.
47. [Ms Farrant] spoke of the commitment involved for her when [X] had surgery ( in 2014 and needed some months of assistance afterwards. She said that the specialists had been very surprised at how soon [X] had begun to walk after the operations and she attributed his progress to twice daily [exercises] each day with [X].
48.She spoke of the expense of providing for [X]'s special needs and said that [Mr Farrant]’s financial contribution was "insulting".
…
55. [X]'s needs to be reminded about going to the toilet and taken by an adult. He still has "accidents'. At school/child care [X] is on timed reminders in relation to toileting and apparently needs assistance to pull down his trousers and underpants, and supervision to stay on the toilet so that he can complete what needs to be done.[16]
[16] Ibid 1–25.
Mr Verney submits that the Wife did not produce any evidence to establish that X’s current condition is different to his known condition and prognosis in 2015.
Second, Mr Verney submits that the Wife did not establish that she will suffer hardship if the Order is not varied. He referred to the Wife’s income of $125,000 per annum as detailed in her recent taxation return,[17] and the profitability of her company — J Pty Ltd — which owns assets valued at $640,000 and declared a 2022 profit of $246,000.[18] The Wife’s Financial Statement also reveals her income to be $2,593 per week — $134,836 (per annum).[19]
[17] Tender Bundle of Mr Farrant filed 19 December 2023, 156.
[18] Ibid 112.
[19] Financial Statement of Ms Farrant filed 10 October 2023 (‘Wife’s Financial Statement’).
The Husband refers to the Wife’s financial position by virtue of the property settlement and his payment of child support in his affidavit:
26.As stated above, [X]'s higher needs were raised during the Court proceedings, it was raised in the Family Report. It was also raised in [Ms Farrant]'s affidavit filed on 22 January 2015.
27.I am aware that [X] is receiving supports from his NDIS plan. I also appreciate that the NDIS financial aid may not be enough to cover [X]'s assessment and or additional therapy sessions required. From my calculations, [X] has been entitled to a total of $144,188.08 of NDIS funded support for 2 years.
28. I pay child support as assessed of approximately $200 per week.
29.I have offered to pay further funds towards his medical expenses but this was declined by [Ms Farrant].
30.The information provided in these proceedings is the first time that I am able to obtain detailed information as to the current treatment direction.
31.I acknowledge that providing care for someone with severe disability can be emotionally and physically draining. I know this because I am the carer for my disabled brother.
32.I want to be part of [X]'s life and would be willing and able to live in Tasmania to assist with his care or be his primary care giver.
33.As stated above, I pay child support as assessed. I financially support my other children.
34.Other than being asked to pay the fees for 2 private schools, [Ms Farrant] has not asked for me to contribute to [X]'s medical costs.
35.The pool of assets at the time that this matter was before the Court in 2015/2016 was estimated to be $2,045,785.
36. I received about 18.8% of the pool of assets. Under the Orders I was to receive:
a. My superannuation worth approximately $54,000
b. [Motor Vehicle 4] $10,000
c. [Motor Vehicle 1] $18,000
d. [Tools] $20,000
e. Tool locker $750
f. [Motor Vehicle 2] and [Motor Vehicle 3] $23,000
g. Sale proceeds from [Town G] property $160,000.
37.I started again and my financial position as set out in my financial statement is as a result of my work and acquisition of assets post separation. I have structured my financial position so that my company owns my assets and liabilities. I do so because of my past experiences of property divisions following a break down of relationships. I understand that this does not change how the law would apply, but structuring my assets and liabilities this way is what provides me with piece of mind. As stated above, I am willing and able to contribute to [X]'s medical needs but I have not been asked or informed about what these expenses are that are not covered by his NDIS funding.
38.[Ms Farrant] retained the income earning assets of the relationship. I agreed to this percentage division including the business because the [K Pty Ltd] was profitable and [Ms Farrant] would continue to be the primary caregiver of [X] who had higher needs, enabling her the flexibility that comes from running your own business.
39.[Ms Farrant]'s current application has me receiving approximately 11% of the pool of assets as they were at the time.
Mr Verney submits that the Wife’s strong financial position dispels her claim that she and/or X will suffer hardship unless the Order is varied.
The Wife’s Submissions
Mr Williams also relies upon the documents set out in his case outline.[20]
[20] Case Outline of Ms Farrant filed 21 December 2023.
He submits that X’s condition is more complex, costly, and places more responsibility upon the Wife than anticipated at that time the Order was made.
Mr Williams refers to a report of Dr Q of December 2023 which lists X’s current issues:[21]
[21] Tender Bundle of Ms Farrant filed 19 December 2023, 60 (‘Wife’s Tender Bundle’).
(a)A diagnosed [medical condition].
(b)ASD.
(c)IQ […] – noting X was earlier diagnosed with a moderate disability but his IQ was not assessed.
(d)[medical conditions].
(e)Aggressive sexualised behaviour – affecting social function.
(f)Anxiety.
(g)Nocturnal enuresis.
(h)Dependence for activities of daily living – this is not new but is worse than predicted and X now requires significant support.
(i)Allergies.
(j)ADHD.
Dr Q describes X’s condition as permanent and one that requires significant support and various types of therapies. He states, ‘X has significant developmental delays, including gross motor, fine motor, speech and communication, and delays in activities of daily living including continence.’
Recent changes to X’s condition and needs are expressed by the Wife in an email exchange with X’s Psychologist, Ms R, in late 2023:
Hi [Ms Farrant]
I’ve just read through all the reports you sent – I had the school psych report already but reviewed it again
I’m wondering if a medication review would be helpful for [X]? He is currently on dexamphetamine ) long acting amphetamine, but there is some evidence that methylphenidate may be more effective in reducing the symptoms of ODD (but not all studies agree with this conclusion).
How tricky is it to get [X] to take his meds? I am wondering if short acting methylphenidate (Ritalin) will be more effective at getting him up and out the door as well as giving him a second boost at 11am and potentially a third (maybe smaller) boost at 2pm? This way you still have “coverage” till about 6pm after which time you are preparing for bed. There is another ADHD med which is not a stimulant. Some people with ADHD take this at night time as a way of dealing with the busyness in their heads that prevents sleep onset and restless sleep. It has a long half life of 17 hours (time it takes for ½ the dose to be processed out of your system) so an evening dose continues to work the following day.
Since I am not a doctor I am not able to advise whether this is suitable for [X], I’m just sharing what I understand to be the case for other clients. It is worth talking to your paed about though as it can take some time to find the sweet spot where ADHD meds are concerned.
I m not sure that reassessing [X]'s cognitive function will tell us anything useful – generally people’s IQ’s don’t change much over time. A sensory assessment would be useful for day to day life and I note [Ms S] has just completed a functional assessment.
In terms of pathological demand avoidance, there are definite similarities and if you caught the presentation at last weekend’s conference you may have already been reading up on it some more .
I’d be interested to see the response from NSS regarding [X]'s enrolment refusal.
The Wife replies:
Afternoon [Ms R]
The year certainly didn't get off to a smooth start for us, I can't emphasis enough, the dramatic changes that [X] has experienced since last Christmas until now. The intensity of [X]'s care needs and the constant changes have been profound which impacts on my ability to stay on top of everything since our last visit in February I can't believe it's now the end of September.
The unprecedented effects of puberty for [X] and transitioning him to high school has been a tiring struggle however the support and care along with the learning plan provided to [X] from [T School] has been amazing and better than I could have hoped for I feel so incredibly lucky.
Even with such a positive school environment [X] is almost every day running late as he is always so hard to get up and going often lost time in being distracted and its getting hard to transition from house to car then to school, [X] is so tried upon collection at 3 pm from and becomes so upset if we don't go straight, [Ms U] has said that [X] is pretty much done from after lunch and requires mostly rest in the afternoons.
Once he arrives home, he is not interested in anything is becoming quite aggressive, currently I have stated using the visual posting and timers again with not a huge amount of success his behaviour is much better with male support workers and mostly enjoys doing some active after school actives.
[T School] should be recognised for this as it was such a huge process to find the right high school, I will also send through the email chain that we are currently working through regarding [X]'s enrolment at [V School], which again has been denied. [Ms U] from [T School] and [Mr W] from [Y Organisation] and myself are currently working through.
I have had a phone meeting this afternoon with [Ms U] just going over […] along with any other information that will help you. [Ms U] has offered if you need to reach out to her directly please do so
For our appointment on Wednesday, at 3 p.m. I would like to review /plan including any assessments that you recommend for [X].
I will also require a current report from you for School, […] and ( NDIS ) change of assessment. I have and are considering the below along with any other recommendations from you.
•Cognitive Assessment see attached last one dated late 2020
•Anxiety and Mood Disorder assessment
•Sensory Assessment
•Behaviour Assessment Including Oppositional Defiant and Conduct Disorder
•Adaptive Functioning Assessment
I have also attached a chew invoice as [X] has been biting through serval tops and he recently bitten and broke a phone so I was advised to use these and they have been very successful, however this will be a new ongoing cost as I am just about to order the second lot as he is using them every day.
I have also attached his current medication, school Psychologists report 2020 OT access report for the school [Ms S] has completed a draft report also attached in a word document as I need to confirm / add in any other information.[22] (emphasis added)
[22] Ibid 61-2.
Mr Williams also refers to a lengthy report from Ms Z,[23] a clinical psychologist, who set out X’s history, the current nature of his condition, and the therapy in which he will need to engage. He also refers to a behavioural assessment of X by Ms AA, another clinical psychologist, who states:
The current results are based on [X]'s parents' rating of his behaviour using the BASC-3 Parent Rating Scales form and his current schoolteacher's rating using the BASC-3 Teacher Rating Scale form. Scale scores in the Clinically Significant range suggest a high level of maladjustment. Scores in the At Risk range may identify a significant problem that may not be severe enough to require formal treatment or may identify the potential of developing a problem that needs careful monitoring. [X]'s scores on the BASC-3 are provided below.[24] (emphasis added)
[23] Ibid 83-95.
[24] Ibid 72.
Mr Williams submits that the issues that X has, and which the Wife must manage on her own, are far different to those that were evident in 2016. This change amounts to exceptional circumstances relating to X’s care, welfare, and development. The Wife sums up her concerns in her affidavit:
6. At the time of the Orders there was denial by [Mr Farrant] of the then developmental delays that [X] was exhibiting. Having spent about 2 days with [X] in the last 3 years, there is no engagement by [Mr Farrant] with [X] at all.
7. I can't emphasis enough, the dramatic changes that [X] has experienced since Christmas 2022 to now. The intensity of [X]'s care needs and the constant changes have had a profound impact on my ability to work and stay on top of everything, including remembering to re list [Town G] for sale.
8. The unprecedented effects of puberty for [X], in conjunction with summer holidays and transitioning him to high school has been a tiring struggle and more than a full-time role for me. I am only human and am doing the very best I can while trying to navigate through these circumstances.[25] (emphasis added)
[25] Wife’s Affidavit (n 4) [6]-[8].
Mr Williams submits that hardship means more than financial hardship and can include the physical and mental hardship the Wife is experiencing by virtue of X’s health and behavioural issues, many of which were unknown at the time the Order was made. The Wife is also burdened by the significant expense associated with X’s care — not all of which is covered by NDIS.
The Wife’s Financial Statement reveals a shortfall of $3,569 per week.[26] Her stated medical expenses, not covered by insurance, are $58 per week, with pharmaceuticals at $88 per week. It is unclear whether these are expenses for both her and X. The Wife explains the financial burden upon her:
23. [X] is dependent on me for all his activities of daily living, his care and my need to earn money to pay for his care due to the limits of external funding via NDIS. [X] is on an NDIS plan, however it outlines clearly what it is to be used for. Additional assessments and other financial needs of [X] are parental responsibly as he is under 18, meaning that I have to financially be responsible for assessments which has been the case to obtain the NDIS funding from the start with no additional financial help from [Mr Farrant]. I fund all private heath, massages, glasses, pharmaceutical and podiatry. I have attached his current plan as annexure Ms F05.1 and note we are currently less than 20% of funding left and will require a change of assessment to be logged as [X]'s needs are increasing all the time and his current plan isn't supporting his needs and certainly won't last till [mid]-2024. These limits create persisting impacts on my ability to function, manage the business I received through the Orders and have anything like a normal life. If [X] were not impaired, our life would be so much different.[27]
[26] Wife’s Financial Statement (n 19). The document shows her income to be $2,593 per week and her expenses $4,940. Mr Williams submitted the Wife’s income to be $2,400 per week, but as mentioned above, the income in her Financial Statement is stated to be $2,593 per week and her expenses $4,940 plus $1,222. The Wife did not put at [32] of her Financial Statement her expenses set out at Part N.
[27] Wife’s Affidavit (n 4) [23].
It is the Wife’s view that if she is forced to sell the Town G Property and pay the Husband $160,000, she and X will suffer hardship:
19.I had feelings of horror when I was informed that [Mr Farrant] had asked for our family home at [BB Street] to be replaced for a sale of [Town G].
20.I cannot stress enough how any form of change to [X]'s routine, surroundings, or home life can have such huge impacts on him. [Mr Farrant], who has had every one of [X]'s medical reports forwarded to him, seems to be incapable of understanding and acknowledging [X]'s medical diagnosis or any part of his additional needs.
21.There has never been any response to me from [Mr Farrant] an acknowledgement or anything to support me in my care for [X].[28]
[28] Ibid [19]-[21].
Summary Dismissal – The Law
Section 45A(2) of the Act provides for the following in respect of summary decrees:
…
No reasonable prospect of successfully prosecuting proceedings
(2) The court may make a decree for one party against another in relation to the whole or any part of a proceedings if:
(a) the first party is defending the proceedings or that part of the proceedings; and
(b) the court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceedings or that part of the proceedings.
When there is no reasonable prospect of success
(3) For the purposes of this section, a defence or proceedings or part of proceedings need not be:
(a) hopeless; or
(b) bound to fail;
to have no reasonable prospect of success.
Proceedings that are frivolous, vexatious or an abuse of process
(4) The court may dismiss all or part of proceedings at any stage if it is satisfied that the proceedings or part is frivolous, vexatious or an abuse of process.
(5) To avoid doubt, proceedings or a part of proceedings are not frivolous, vexatious or an abuse of process merely because an application relating to the proceedings or the part is made and later withdrawn.
Part 10(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) and r10.09 provides:
(1)A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction; or
(b) the other party has no legal capacity to apply for the orders sought; or
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
The Full Court confirms the approach to summary dismissal applications in Curtain & Curtain [2022] FedCFamC1A 134:
15.In Ritter & Ritter and Anor [2020] FamCAFC 86; (2020) FLC 93-957, an appeal from a summary dismissal of an application pursuant to s 79A of the Act, to which the primary judge referred in her reasons for judgment at [30], the plurality of the Full Court said:
48.... That a case is said to be weak is insufficient to justify its summary dismissal (see Coe v The Commonwealth [1979] HCA 68; (1979) 24 ALR 118; Wickstead v Browne [1992] NSWCA 272; (1992) 30 NSWLR 1).
16. Further, the plurality said:
66.The determination of the issue must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 68 ALJR 169 at 171; Bigg & Suzi [1998] FamCA 14; (1998) FLC 92-799; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at 608). ...
17.The primary judge at [53] also correctly referred to and cited from the judgment of Kirby J in Lindon v Commonwealth (No 2) [1996] HCA 14; (1996) 136 ALR 251 at 255–256, where his Honour set out the approach to be taken in applications for summary relief, namely:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lindon's statement of claim.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit. (Footnotes omitted) (emphasis added)
…
19.In Wood v Glaxo Australia Pty Ltd [1993] QCA 114; [1994] 2 Qd R 431, an appeal against a refusal to order an extension of the period of limitation within which an action might be instituted, Macrossan CJ relevantly said at 434:
…It is nevertheless recognised as wrong to place potential plaintiffs in anything like a situation where they must on the probabilities show that it is likely they will succeed in their actions. A judge may harbour a feeling that there is a strong chance that particular applicants will fail at trial but, in my opinion, he should not act on the basis of this impression both because that is a question reserved for another occasion and because he cannot know and should not insist on being able to see in all of its ramifications the full strength of the case which will eventually be presented at trial.
…
21.A similar approach is to be taken in applications for summary dismissal. The Court does not undertake a preliminary trial, nor is a detailed hearing of the case on its merits required.[29] (emphasis added)
[29] Curtain & Curtain [2022] FedCFamC1A 134, [15]-[17], [19], [21].
Section 79A(1)(d) – The Law
Section 79A(1)(d) of the Act reads as follows:
(1)Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order;
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
In Garden & Gavin (No. 2) [2010] FamCAFC 125, the Full Court confirms the approach to be taken regarding s79A(1)(d):
It is clear that three elements must be satisfied before an order can be made setting aside property orders pursuant to s 79A(1)(d). First, there must be circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child. Secondly, it must be demonstrated that the applicant (not the child) will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution of the order. Thirdly, what might be described as a further discretionary element, that is, the court may vary the order if it considers appropriate and make another order under s 79 in substitution for the order so set aside.[30]
[30] Garden & Gavin (No. 2) [2010] FamCAFC 125, [46].
The Full Court in Christian & Donald [2008] FamCAFC 44 considers the meaning of ‘circumstances of an exceptional nature’:
The husband had to establish “circumstances of an exceptional nature” for his case pursuant to s 79A(1)(d) to succeed. Her Honour needed to be satisfied, as a matter of law, that he had done so. Only after being satisfied as to “exceptional circumstances” and “hardship” could her Honour proceed to exercise the discretion to grant the relief which the husband sought.
In Simpson & Hamlin (supra) the Full Court held that the moving of children to the other parent, after the making of orders, “could not of itself be held to be an unusual circumstance”. Their Honours quoted with approval the remarks of the trial Judge (at 79,657):
... The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and their assets, and their obligations to the support of each other and the support, care and control of their children, frequently create situations where it is desirable having regard to the children’s welfare that such a change occurs.
The Full Court considered that in these conclusions the trial Judge was correct (p 79,657) and said:
The question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur’’. He saw that feature in the present case in “the fact that the change occurred unexpectedly and so quickly after the making of the property order’’.
...
His Honour in our view stated correctly the law applicable on this point. What amounts to “exceptional circumstances’’ is very much a question of fact and degree. With findings on such matters an appellate tribunal is reluctant to interfere. Whilst we might have had some hesitation ourselves as to whether or not in the light of the history of these parties and their admitted future intention, the change of custodial arrangements was so exceptional as to take it out of the normal vicissitudes of life, it was in our view a finding which his Honour was entitled to make on the evidence and which we cannot disturb.
The decision of the Full Court in Simpson & Hamlin (supra) did not put any additional gloss on the words of s 79A(1)(d). The judgment reiterated that the legislature has placed a relatively high onus on an applicant who seeks relief pursuant to s 79A(1)(d). The plain words of the sub-section indicate that it was not intended to cover, per se, a situation where children leave a parent who has received the benefit of an adjustment pursuant to s 75(2) on account of their future care. The successful applicant must establish “exceptional circumstances” relating to the care, welfare and development of a child of the marriage.[31]
[31] Christian & Donald [2008] FamCAFC 44, [37]-[40].
As to ‘hardship’, the Court in Whitford and Whitford [1979] FamCA 3; (1979) FLC 90-612, states that the term ‘hardship’ is ‘akin to such concepts as hardness, severity, privation, that which is hard to bear or a substantial detriment” and means “something more burdensome than ‘any appreciable detriment.’[32]
[32] Whitford and Whitford [1979] FamCA 3; (1979) FLC 90-612, [78], [144]-[145].
In Simpson & Hamlin (1984) FLC 91-576, the Full Court states:
The importance of bringing an end to litigation remains an important consideration and the remarks of Mason J remain applicable to para (d) mutatis mutandis. To paraphrase his Honour’s remarks: it is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant, the court must consider in the exercise of its discretion whether that hardship is of such a serious nature and results in such inequity that it can only be rectified by the extreme step of setting aside or varying an existing order of the Court.[33]
[33] Simpson & Hamlin (1984) FLC 91-576, [79].
Whether a child’s medical condition can amount to ‘circumstances of an exceptional nature’, is considered in Milavic & Banks [2016] FamCA 884. There the Court deals with an application to set aside a financial agreement pursuant to s 90UM of the Act and considers whether there is a “material change in circumstances” following a child being born with autism after the signing of the financial agreement. The court states:
“the fact that since the parties entered into the Agreement the younger child has been diagnosed with autism, adding significantly to what is required of the parties for his care physically and emotionally and to some extent financially, is a material change relating to his care welfare and development”. I note however that in Fewster & Drake [2016] FamCAFC 214 the Full Court noted at paragraph 48 that the test required to establish “material change” is a lower threshold than which applies to circumstances of an “exceptional nature”.[34]
[34] Milavic & Banks [2016] FamCA 884.
In Carman & Carman [2017] FamCA 99, Loughnan J concludes that ‘circumstances of an exceptional nature’ did exist where a child’s health deteriorated following the making of the property order:
Albeit that at the time of the orders, B suffered some ill-health, on the unchallenged evidence of the mother, EDS and it’s sequelae for B and necessarily for the mother, amounted to circumstances of an exceptional nature. There is no suggestion that EDS was a foreseeable development of a condition suffered by B before the orders were made. There is no suggestion that B was as debilitated prior to the making of the orders as she was at any time after she was found to be suffering from EDS. Similarly, there is no suggestion that the parenting load and the practical impost on the Wife of B’s care when the orders were made was as significant and time consuming as has been the case since B was found to be suffering from EDS.
I accept that the consequences of the deterioration in B’s health since the 2014 orders are circumstances of an exceptional nature.[35] (emphasis added)
[35] Carman & Carman [2017] FamCA 99 [136]-[137]. It is noted that notwithstanding this finding, the court was not satisfied that the mother nor child would suffer hardship.
Consideration
The Wife claims that X’s condition is far more complicated, costly, and demanding than when she agreed to the Orders in 2016. She said that the change has been particularly noticeable since 2022. I repeat what she writes in her email to Ms R:
The year certainly didn't get off to a smooth start for us, I can't emphasis enough, the dramatic changes that [X] has experienced since last Christmas until now. The intensity of [X]'s care needs and the constant changes have been profound which impacts on my ability to stay on top of everything since our last visit in February I can't believe it's now the end of September.
The unprecedented effects of puberty for [X] and transitioning him to high school has been a tiring struggle however the support and care along with the learning plan provided to [X] from [T School] has been amazing and better than I could have hoped for I feel so incredibly lucky…[36]
[36] Wife’s Tender Bundle (n 21) 61-2.
Taking her evidence at its highest, the issues X now faces, as detailed in the letter of Dr Q, the report of Ms Z, and the assessment of evidence of Ms AA, are arguably of a different and more onerous nature than contemplated in 2016. The description of the ongoing support required for X as explained by the Family Consultant in 2015 seems far different to the reality of X’s life now that he is older. To repeat paragraph [64] of the family report:
"[X]'s long-term prospects for employment or independent living are unknown however like [Mr N], [Mr Farrant]’s brother, it is likely that he will require some family support and involvement all of his life." (emphasis added)
The word ‘some’ arguably turned out to be an understatement.
Taking the Wife’s case at its highest, her position that the changing nature of X’s condition since the Order was made amounts to ‘circumstances of an exceptional nature’, is not without any reasonable prospect of success. I accept, at trial, the Wife will need to put medical evidence before the court in an admissible form and draw the court to the evidence that clearly establishes circumstances relating to X’s care, welfare, and development, of an exceptional nature, that have arisen since the making of the Order. At this stage of the process, however, on the Wife’s evidence, I am satisfied that her application is not without a reasonable prospect of success.
The Wife’s claim that she and/or X will suffer hardship unless the Order is varied, is also not without some prospect of success. I accept there is merit in Mr Verney’s submission that the Wife’s financial circumstances are strong, however, on the Wife’s evidence, there are substantial costs associated with Xs’ care, and she does not have the income to meet those costs.
Further, hardship does not mean purely financial hardship. As extracted earlier in these Reasons, the Wife is concerned that selling the Town G property will significantly impact X,[37] and cause him and her hardship. Whether her position survives a forensic examination is unknown, and a matter for trial. At this stage, however, her claim cannot be said to have no reasonable prospect of success.
[37] See paragraph 32 of these Reasons.
It follows that the Wife may be able to establish at trial that the court should exercise its discretion in her favour and vary paragraph 5 of the Order. As such, the Wife’s application pursuant to s 79A of the Act cannot be said to have no reasonable prospect of success. I will therefore dismiss the Husband’s summary dismissal application and make directions to set this case on the path to a trial.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turnbull. Associate:
Dated: 2 February 2024
0
14
2