FARRELL & CANE
[2017] FCCA 795
•21 April 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FARRELL & CANE | [2017] FCCA 795 |
| Catchwords: CHILD SUPPORT – Departure application – need to establish special circumstances. MAINTENANCE – Respondent seeks maintenance until child starts school. |
| Legislation: Family Law Act 1975, ss.4AA, 4(1), 79, 90SB, 90SE, 90SF, 90SF(3), 90SM(1), 90SM(3), 90SM(4) Child Support (Assessment) Act1989, ss.90RD, 114, 116(1)(a), 117 |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 |
| Applicant: | MR FARRELL |
| Respondent: | MS CANE |
| File Number: | MLC 8333 of 2015 |
| Judgment of: | Judge Harland |
| Hearing dates: | 20 & 21 March 2017 |
| Date of Last Submission: | 21 March 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 21 April 2017 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Mr Hutchings |
| Solicitors for the Independent Children’s Lawyer: | Kenna Teasdale Lawyers |
ORDERS
The Court declares pursuant to s.90RD of the Family Law Act 1975 (Cth) that the parties were in a de facto relationship from 1 May 2013 until 26 April 2015.
PROPERTY
The applicant be solely legally and beneficially entitled to the following which are not otherwise addressed by these orders –
(a)All items of furniture, furnishings, chattels and jewellery;
(b)All monies (whether in cash or on deposit with a financial institution);
(c)His motor vehicle; and
(d)His superannuation entitlement.
The respondent be solely legally and beneficially entitled to the following with are nothing otherwise addressed by these orders-
(a)The property at Property A;
(b)All items of furniture, furnishings, chattels and jewellery;
(c)All monies (whether in cash or on deposit with a financial institution);
(d)Her motor vehicle; and
(e)Her superannuation entitlement.
That within 30 days of the date of these orders the respondent make available to the applicant for his collection, at his cost the following items:
(a)Small refrigerator;
(b)(omitted) bike; and
(c)Tools including nail gun and chainsaw.
That the respondent indemnify and keep the applicant indemnified with respect to the mortgage, rates and outgoings secured over the property at Property A.
That each party indemnify and keep the other party indemnified in relation to all debts in their sole name.
MAINTENANCE
That the applicant pay the respondent maintenance in the sum of $1733.33 on the 15th day of each month, with the final payment to be made on 15 December 2017.
CHILD SUPPORT
The respondent’s application for child support departure is dismissed.
OTHER
All other outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Farrell & Cane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8333 of 2015
| MR FARRELL |
Applicant
And
| MS CANE |
Respondent
REASONS FOR JUDGMENT
To the credit of the parties they resolved the parenting dispute on the first day of the hearing. It was somewhat surprising that they were able to do so given the nature of the dispute between the parties and the bitterness and distrust between them. The Court and the parties have been considerably assisted by the preparation of the Independent Children’s Lawyer’s and her counsel at Court. It is to the benefit of X born (omitted) 2014 (“X”) that her parents have been able to agree on the way forward.
The parents have not been able to resolve the property, maintenance, and child support issues.
This is a bitter dispute. It is a box file that fills a whole box, which is an indication of the parties’ bitterness rather than the complexity of the issues before the Court. Both parties appear without the benefit of legal representation.
The parties raise numerous issues and have filed voluminous material. It is not necessary for me to refer to all of it. In a recent appeal decision of Bell & Nahos [2016] FamCAFC 244 Strickland J addressed a complaint from an appellant that the trial judge had not referred to each piece of evidence and argument and said at [28]-[29]:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
The respondent was born on (omitted) 1981. She is 35 years old.
The applicant was born on (omitted) 1977. He is 39 years old.
Their daughter X was born on (omitted) 2014. She is two and a half years old.
The applicant has two children from a previous relationship, A born (omitted) 2014, aged 12, and B born (omitted) 2008, aged 8.
The applicant relied on the following material:
a)His affidavits filed on 20 February 2017 and 6 March 2017; and
b)Financial statement filed on 20 February 2017.
He says that he repaid to the respondent the monies he borrowed from her during his period of unemployment during the relationship.
The applicant says that there should be a 60% split of the non-superannuation property pool in the respondent’s favour.
He seeks that the respondent pay him $38,490 and that otherwise the parties keep the assets they have in their possession including their respective superannuation entitlements.
He seeks orders that the maintenance orders be discharged.
The respondent relied on the following material:
a)Her affidavits filed on 27 February 2017, 15 March 2017 and 17 March 2017; and
b)Financial statement filed on 27 February 2017
She seeks to retain the Property A property. She seeks an order that the applicant retain the Toyota (omitted) by paying her $25,000. There is no basis for such an order. It would have the effect of the respondent receiving more than 100% of the non-superannuation pool. She also seeks a superannuation split in her favour of $60,649. She has accorded procedural fairness.
Property dispute
The parties were in a de facto relationship. The parties are in dispute as to the commencement of their de facto relationship. On either case the relationship was short.
The applicant says the parties started dating in (omitted) 2013 and started living together on 1 November 2013.
The respondent says they started living together in April 2013.
The parties agree they separated on 26 April 2015.
At the commencement of the relationship the applicant owned a house at Property B which was subject to a mortgage and a loan from his parents. His other significant asset was his superannuation entitlements.
Annexure F 14 is a superannuation statement showing the applicant has superannuation entitlements with (omitted) Super in the sum of $137,903.60 as at 1 November 2013.
The applicant’s superannuation as at 6 June 2013 was worth $119,227.21.
At the commencement of the relationship the respondent had superannuation and savings.
The applicant says that during the relationship the respondent was not employed between July 2013 to October 2013 and December 2013 to February 2014. On 1 August 2014 she stopped work to look after X full-time.
He says that during the relationship the household duties were carried out equally and that he carried out the majority of the household maintenance including gardening and repairs to the home.
The applicant says they kept separate bank accounts and that he financially supported the family during the respondent’s periods of unemployment.
He says that during the relationship the respondent applied for various jobs including (employments omitted). He says the respondent has capacity to return to work as an (occupation omitted) and on that basis says that she has the same earning capacity as he does.
The respondent was involved in a fatal road accident in 2002 and has suffered health symptoms since. She was not at fault.
The respondent says the parties were in a de facto relationship from (omitted) 2013 and she annexes various documents to her trial affidavit filed on 15 February 2017 in support of her contention. Those documents include phone bills and bank statements showing the purchase of the parties’ respective homes in Property B and Property A. She says that they spent about 20 nights together in (omitted) 2013 and that the statements also show that they were purchasing things for each other including groceries and that she was also purchasing items for the applicant’s two children. She also annexes a copy of the applicant’s (omitted) death benefit nomination form nominating her as his beneficiary. He signed the form on 23 May 2013.
Annexure F 11 is an extract from the respondent’s tax return where she states that the applicant has been her de facto spouse since 1 February 2014. This postdates the start of the relationship on the applicant’s case as well as the respondent’s case.
In her affidavit the respondent says that the applicant came into the relationship with debts of $360,637 due to “irresponsible financial management in his marriage.” She came into the relationship with $107,248 due to her “responsible financial management and the need to have finances to fall back on should my health issues return.”
The respondent had superannuation of $63,438 at the beginning of the relationship and savings of $90,740. She also had a car and personal items.
She also sets out a calculation of the salary and superannuation she says she forewent due to caring for X. This is an unhelpful exercise.
She also says that she and her parents carried out a significant amount of work on the Property B property before it was sold, including work in the garden.
She also lent the applicant money totalling $16,628 to enable him to pay his child support obligations and other expenses when he was unemployed. The applicant repaid this during the relationship.
She says that the applicant has benefitted from her insistence that the child support agreement with his former wife be renegotiated such that he has saved $91,200. Certainly the agreement was renegotiated but is not appropriate to attribute a monetary value to that as the respondent has done.
She says she insisted that they repay in full the loan to his parents of $46,000 and the loan for the Toyota (omitted) of $25,000 in full rather than over time as the applicant had suggested. She said she did this as a “show of our financial capability.” As it turns out given the brevity of the relationship it would have been better to have paid in instalments. However, that is the choice they made at the time.
Since separation she has met all the mortgage, insurance, and rate payments on the Property A property. She has also had the benefit of living in the Property A property.
She claims she did 99% of the housework, financial management, holiday planning, assisting with the education of the applicant’s two children and meal preparation before and after the birth of X. The respondent says that she made significant contributions to the care of the applicant’s two children from his previous relationship.
I do not accept that the respondent’s contributions were as great as she says they were. She was not willing to give the applicant any credit for contributions he made. Essentially he would needed to have been entirely absent from the relationship. However her contributions were significantly greater than the applicant’s. Her savings which enabled the purchase of the Property A property is one example.
Both parties are (occupations omitted). That is very clear form the way they have prepared the financial aspects of their claims. Particularly the respondent approaches the issues of property adjustment, maintenance, and child support departure as an accounting and auditing exercise. It is not.
The respondent focuses on what she refers to as the applicant’s “poor financial stewardship” prior to their relationship. It is not the task of this Court to undertake an audit of the parties’ relationship. The applicant also approaches the issues from an accounting perspective but not to the same detail and degree as the respondent.
The tables the respondent has prepared and included in her affidavit are not helpful. She has prepared a table of sources and applications of funds and her calculations of their respective contributions during their relationship. She also sets out her analysis of the applicant’s post separation expenditure including what she considers to be excessive expenditure on his sons over and above his child support obligations. She reconciles her own expenditure as well. The tables the respondent prepared are not evidence. The evidence would be the source documents from which she prepared the tables. For the most part these documents are not annexed to her affidavits and are not in evidence. Even if they were they lack relevance as the exercise the Court must undertake is not an accounting exercise. It is part of the reason why there is so much material. The respondent has spent an enormous amount of energy preparing her tables but what she seems to fail to appreciate is that when entering into a relationship people take their partner as they find them which includes debts they have, in this case, the fact that the applicant has children he supports financially. Relationships are partnerships are people have to deal with the good and bad. It is clear too that she feels deeply aggrieved morally but the law does not compensate for this.
At paragraph 97 I set out the relevant parts of s.90SF(3) of the Family Law Act 1975 in the discussion of the respondent’s application for maintenance. I will not set them out here as well.
The respondent has the majority of care for X, who is still very young.
The applicant earns $180,000 a year inclusive of superannuation. He says the respondent has capacity to earn $150,000 inclusive of superannuation. There is no basis for this. It is true that the respondent is a (occupation omitted) but she has not worked in the kind of roles that earn that kind of income.
The respondent says that her ongoing health issues have impacted, and continue to impact, her capacity to work. She quit her (occupation omitted) in 2011 and since then has had a series of part-time positions prior to giving birth to X. The respondent says stress exacerbates her symptoms. For the financial year ending 30 June 2013 the respondent earned $73,605. She earned $36,265 the following year.
The respondent is studying a (course omitted). She wants to work as a (occupation omitted) rather than an (occupation omitted) on a flexible and part-time basis. She has worked as an (occupation omitted) part time.
The parties’ legal and equitable interests
At the beginning of the hearing the parties agreed that the pool is as follows:
a)Property A $415,000
b)Mortgage on the Property A property $295,266
c)Applicant's Toyota $24,200
d)Respondent’s Honda $6,400
e)Applicant’s superannuation as at 10 February 2017 $207,839.99
f)Respondent’s superannuation $93,594
The non-superannuation pool is modest.
They also agreed that the applicant can collect some items from the Property A property.
Legal Principles with respect to de facto property and conclusions with respect to property
Section 4AA of the Family Law Act 1975 (Cth) (“Family Law Act”) defines de facto relationships. In this case there is no dispute that the parties were in a de facto relationship. The dispute is whether or not they were in an 18 month or two year de facto relationship. The controversy arises of a period when the parties were not living together on a full time basis from April to November 2013. The applicant points to the respondent’s tax return which states the applicant was her de facto partner from February 2014. She says he was responsible for completing her return. I do not accept that. In her affidavit she claims she made 99% of the contributions including managing the paperwork. She is an (occupation omitted) too. I do not accept that she would leave it to the applicant to complete her form and without checking its accuracy. She relies on the applicant’s binding death nomination for his superannuation fund where he names her as a nominee. He said he did that in contemplation of them entering into a de facto relationship in the future. I do not accept that evidence either. It simply is not credible that he would have completed that form unless they were already in a committed de facto relationship.
Section 90SB of the Family Law Act enables the Court to make an order for property adjustment and maintenance if the parties were in a de facto relationship for periods totalling two years. The Court may also make orders if the relationship was less than two years in duration but there is a child of the de facto relationship or a party made a substantial contribution of the type referred to in s.90SM(4) of the Family Law Act. There is a child of the relationship and the mother made an initial significant financial contribution. Therefore s.90SB is enlivened even if I find the relationship was less than two years.
I am satisfied that their de facto relationship commenced before November 2013. On this topic I prefer the evidence of the respondent. I am satisfied that the parties were in a de facto relationship from at least 1 May 2013.
Part VIIIAB of the Family Law Act deals with property, spousal maintenance and maintenance agreement between de facto partners. The substantive provisions are almost identical to those applying to married couples.
Pursuant to s.90SM(1) of the Family Law Act the Court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a de facto relationship in relevant property.
Pursuant to s.90SM(3) of the Family Law Act the Court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all of the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 90SM(4) of the Family Law Act provides the mechanics of how a Court is to make an order altering marital property interests.
Paragraphs (a), (b) and (c) categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the Court to take into account any order regarding the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the Court to consider a list of matters contained in s.90SF(3), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs. Finally, paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until the decision of Stanford& Stanford [2012] HCA 52 (“Stanford & Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court of the Family Court (“Full Court”) in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court of Australia (“High Court”) considered the operation of s.79 (which is almost identical terms to s.90SM) in the matter of Stanford & Stanford.In that case, the majority stated at [35]-[36] that:
It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.” Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression “just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.
[Footnotes omitted]
The High Court found three fundamental propositions with respect to the application of s.79 of the Family Law Act, which can be summarised as follows:
a)Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word existing;
b)Secondly, although s.79 gives the Court a broad power to make property settlement orders it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests; and
c)Thirdly, when considering whether making a property settlement order is just and equitable the Court must not assume that one or the other party has the right to a property adjustment order. The Court must give separate consideration to s.79(2) in addition the matters referred to s.79(4).
In Stanford & Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation. I am satisfied that it is just and equitable to make orders adjusting the parties property interests in this case.
The High Court also pointed out that what is just and equitable is different in every case.
The principles referred to in Stanford & Stanford are equally applicable to de facto property matters: see Watson & Ling (2013) 49 Fam LR 303.
In Dickons & Dickons [2012] FamCAFC 154 the Full Court of the Family Court made the following comments with respect to the proper approach to the exercise of discretion under s.79 (noting as observed above s.90SM with respect to de facto relationships is in the same terms) at [24] to [26]:
24. There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
25. Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “…giving over-zealous attention to the ascertainment of the parties’ contributions…” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
26. The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided
(Emphasis added)
I am satisfied that given the respondent’s contributions and the s.90SF(3) of the Family Law Act factors in her favour the respondent shall keep the Property A property subject to the mortgage and her car. The applicant will keep his car. This results in the respondent receiving 86% of the non-superannuation pool.
I am satisfied that it is appropriate to use the two pools approach as explained by the Full Court in C v C (2005) 193 FLR 9. The parties’ relationship only lasted two years. Both parties had superannuation prior to the relationship. They both had periods of unemployment. Both parties’ superannuation increased during the relationship. The applicant’s superannuation increased significantly, which is a reflection of his income and the earnings on the superannuation interests that he had.
The respondent seeks a superannuation split in her favour that would equalise the increase of the parties’ superannuation interests. In the circumstances of the case, where the parties had established careers including substantial superannuation entitlements, where the parties were in a short relationship, and where the respondent is receiving most of the non-superannuation it is not just and equitable to order the superannuation split the respondent seeks or any superannuation splitting order.
Child Support departure
The respondent seeks a child support departure in accordance with calculations she has made for the period from 3 May 2015 until 29 August 2032.
The applicant seeks that child support be determined by the Child Support Agency.
Before considering the respondent’s application for maintenance, it is necessary to determine her child support departure application as the obligation to pay child support is higher than the obligation to pay maintenance.
The respondent complains that the applicant pays child support above what he needs to for his sons but only pays the minimum amount for X. She wants X to be on an equal footing with the applicant’s sons. She microanalyses the applicant’s expenditure and sets out another table in her affidavit which she refers to as setting out the “financial advantages and protections” the applicant gives his sons. She complains that he pays for 50% of expenses not included in the binding child support agreement including presents, haircuts and football jumpers. This is an indication of her obsessiveness and bitterness and lack of any sense of proportion with respect to these issues
The applicant says he does not believe that he is treating X unfairly compared to his older children. He says she is covered by his private health insurance. He acknowledges that he pays for half of their school fees and extra-curricular activities but says that he and his ex-wife discuss what their children should do. He says he and the respondent do not have a trusting relationship to enable them to do that. That is certainly true.
I am satisfied that s.116(1)(a) of the Child Support (Assessment) Act1989 (Cth) (“the CSAA”) applies and it is appropriate for the Court to determine the respondent’s application for child support departure.
Section 114 of the CSAA states:
Additional particular objects of this Division include ensuring:
(a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and
(b) that parents share equitably in the support of their children.
It is important to note that the emphasis is on parents sharing in the support of their children equitably. This does not mean equally.
Section 117 of the CSAA sets out the matters as to which the Court must be satisfied before making a departure order. There are several elements to this being:
a)In the special circumstances of the case one of more of the departure grounds exist; and
b)It is just and equitable having regard to the child, the carer entitled to child support and the liable parent; and
c)It is otherwise proper to make an order under this Division.
If the Court is satisfied as to these matters then it has a discretion to make a child support departure order.
The leading case with respect to child support departure applications is Gyselman & Gyselman (1992) FLC ¶92-279 (“Gyselman”). At page 79,064 the Full Court says the following:
The structure of that section is that s 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
1. Whether one or more grounds of departure in s 117(2) is established.
If so:
2. Whether it is ``just and equitable'' within the meaning of s 117(4) to make a particular order.
3. Whether it is ``otherwise proper'' within the meaning of s 117(5) to make a particular order.
It is clear from the careful way in which s 117 has been structured that the Court must address each of those three separate issues.”
The departure grounds are set out in s.117(2) of the CSAA:
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A) himself or herself; or
(B) any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
The Full Court in Gyselman also discussed the meaning of “in the special circumstances of the case” at page 79,065:
Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. ... That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. ... In Savery’s case (1990) FLC ¶92-131 (p 77,897), Kay J ... said that “`special circumstances'” were “`facts peculiar to the particular case which set it apart from other cases.
The respondent annexed the following child support assessments for X. She sets out in her case outline the amount she wants instead of these assessments. The amounts are not directly comparable because she has sought one amount each period rather than providing a weekly or monthly figure:
(a)For the period 3 May 2015 to 30 June 2015 the applicant was assessed to pay $229.56 a week or $11,978 a year. The respondent seeks $2,579.67 for that period.
(b)For the period 2 July 2015 to 31 August 2015 the assessment was unchanged. The respondent seeks $2,591.34 for that period.
(c)For the period 1 September 2015 to 30 June 2016 the applicant was assessed to pay $200.06 a week or $10,439 a year. The respondent seeks $11,733.70 for that period.
(d)For the period 1 July 2016 to 31 August 2016 the assessment was unchanged. The respondent seeks $2,358.88 for that period.
(e)For the period 1 September 2016 to 8 February 2017 the applicant was assessed to pay $205.03 a week or $10,698 a year. The respondent seeks $6,036.05 for that period.
(f)For the period 9 February 2017 to 30 November 2017 the applicant has been assessed to pay $205.03 a week or $10,698 a year. The respondent seeks $12,135.24 for this period.
(g)The respondent also seeks set amounts for different child support periods up to 29 August 2032. I will not set those out.
The respondent sets out a table of her analysis of what she says the applicant has paid in child support from July 2012 until February 2017. She says it is supported by worksheets. It is not easy to follow. It appears at page 80 of her affidavit affirmed and filed on 15 March 2017. The respondent seems to be suggesting that the boys receive double the amount of child support as X. She also has an asterisked comment that the extra payments the applicant makes for his boys must also be considered. She provides no explanation or context for this document.
She also annexes the binding child support agreement between the father and his ex-wife dated 13 July 2012. That agreement required the applicant to pay $750 per month for each child and various other expenses in addition. That agreement was varied in 2014. The second agreement is not before me.
The applicant records in his financial statement that he pays $167 a week in child support for his older children which is $8,684 per year. He pays $206 a week for X which is $10,712 per year. The applicant pays 50% of other expenses for the boys in addition to the periodic payment.
Whilst the respondent said in closing submissions that the amounts she is seeking may enable her to send X to private school in the future that falls well short of establishing that the parties intended X to attend private school. She is also a few years away from reaching school age. It will be open to the parties to seek to depart from the administrative assessment if appropriate in the future. I need not discuss this ground further. The respondent does not identify which departure grounds she relies on. I assume she relies on 117(2)(c) of the CSAA.
There are several problems with the respondent’s approach which is also how she has approached the property and maintenance aspects of the proceedings. The fact that the applicant has a binding child support agreement in place with respect to his older children does not mean there should be a child support departure to reflect the same arrangement with respect to X. The child support formulas the Child Support Agency uses include a formula taking into account multiple child support cases. It is clear from the assessments the mother annexes that the Child Support Agency has used the applicant’s income with the adjustments it allows for self support and his other child support obligations. As a result of the property orders the applicant retains his car and his superannuation. The departure ground under s.117(2)(c) is not enlivened. The circumstances of this case are not unusual. The applicant’s income has properly been taken into account by the Child Support Agency. There is no evidence before the Court to support which enlivens any of the other departure grounds.
In most cases the administrative regime should apply. There are several advantages to this. Child Support is regularly reassessed to allow for changes to parties income and changes in care arrangements.
The administrative regime allows parties to seek to depart from the assessment if they believe grounds exist which are dealt with administratively rather than through the Courts. It is more appropriate for the parties to engage with this process as their and X’s circumstances change.
Departing from the previous assessments as sought by the respondent would create child support arrears. The respondent has not satisfied the requirement set out in 117(1). Her application must be dismissed.
Maintenance
The respondent seeks maintenance in the sum of $500 a week until X starts school and also seeks that order until 31 December 2019. She says hers and X’s standard of living is below the minimum standard. She says she has taken into account the child support departure order she seeks when seeking this sum.
At [86] of the applicant’s affidavit he sets out a calculation with respect to maintenance he has paid. Presumably he is seeking that the maintenance he has paid to the respondent on interim basis be reimbursed to him. There is no basis for such an order. That would have the effect of asking me to determine that there was no basis for the interim order made by this Court. The applicant also proceeded on the basis that respondent has the same earning capacity as he does. This ignores her health issues.
The applicant lives with his parents. He wants to be able to move out of his parents’ home and rent in the (omitted) area near his oldest children. (omitted) is the same distance from his current residence and the respondent’s home. It is not unreasonable for the applicant to want to move out into independent accommodation.
Legal principles applying to maintenance
Section 90SE of the Family Law Act enables the Court to make orders it considers proper for the maintenance of a party.[1]
[1] This is subject to the provisions in s.90SB and s.90SD are satisfied. In this case they are.
Section 90SF sets out the principles the Court must apply when considering maintenance. It is set out here:
90SF Matters to be taken into consideration in relation to maintenance
(1) In exercising jurisdiction under section 90SE (after being satisfied of the matters in subsections 44(5) and (6) and sections 90SB and 90SD), the court must apply the principle that a party to a de facto relationship must maintain the other party to the de facto relationship:
(a) only to the extent that the first‑mentioned party is reasonably able to do so; and
(b) only if the second‑mentioned party is unable to support himself or herself adequately whether:
(i) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or
(ii) by reason of age or physical or mental incapacity for appropriate gainful employment; or
(iii) for any other adequate reason.
Note: For child of a de facto relationship, see section 90RB.
(2) In applying this principle, the court must take into account only the matters referred to in subsection (3).
(3) The matters to be so taken into account are:
(a) the age and state of health of each of the parties to the de facto relationship (the subject de facto relationship); and
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c) whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years; and
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e) the responsibilities of either party to support any other person; and
(f) subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) a standard of living that in all the circumstances is reasonable; and
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k) the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n) the terms of any order made or proposed to be made under section 90SM in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(o) the terms of any order or declaration made, or proposed to be made, under this Part in relation to:
(i) a party to the subject de facto relationship (in relation to another de facto relationship); or
(ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(p) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to:
(i) a party to the subject de facto relationship; or
(ii) a person who is a party to a marriage with a party to the subject de facto relationship; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(q) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; and
(r) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(s) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; and
(t) the terms of any financial agreement that is binding on a party to the subject de facto relationship.
(4) In exercising its jurisdiction under section 90SE, a court must disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
The parties have each filed updated financial statements and have completed Part N which must be completed when a party is seeking maintenance and or child support. It is the financial statement, rather than the tables the respondent has prepared, which assist the Court when considering the parties’ reasonable expenses with respect to both the maintenance and child support issues. I do not propose to set out their expenses, but I note that the total expenditure for the parties is similar both for themselves and the children. The applicant incurs expenses for the children in addition to his child support payments when they spend time with him.
In her financial statement the respondent shows a shortfall overall. She shows a payment of $200 a week of repayment of a loan from her parents and grandmother, and she notes that repayment at that rate would enable her to pay that over two years. She does not give evidence of any details of loan apart from the total of $30,551. She gives no particulars of loan including any agreement as to time frames for repayment. Given that she says they are providing her with financial support for her shortfall in expenses pending the financial settlement, I infer that she is not actually paying this amount currently but that she seeks to do so after the final orders are made.
Relevant factors under s.90SF(3)
(a) The age and state of health of each of the parties to the de facto relationship.
The parties are of similar ages.
I accept that the respondent’s pre-existing health issues that have had some impact on her capacity to work in high demand full time employment.
(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment.
The respondent was not challenged about her health issues. I accept that it limits her ability to work full time. She does have the capacity to work part-time and has exercised that capacity part time prior to stopping work shortly before X was born. The respondent has a company she set up so she could take on some clients if she chose. She is in a position to seek and take on clients and or return to part time employment.
(c) Whether either party has the care or control of a child of the de facto relationship who has not attained the age of 18 years.
The respondent has primary care of the X who is two and half years old.
(d) Commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain.
The applicant has commitments to support his two older children from his previous relationship.
Both parties have a duty to support X.
(e) The responsibilities of either party to support any other person.
They do not have a duty to support any other person.
(f) Subject to subsection (4), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country.
Pursuant to s.90SF(4) I must ignore the fact that the respondent is in receipt of income tested Centrelink benefits for the purpose of the considering maintenance.
(g) A standard of living that in all the circumstances is reasonable.
It is common that after a relationship breakdown parties are not able to enjoy the same standard of living that they enjoyed when they are together. This was short relationship. The respondent has a property in her name subject to a mortgage. The applicant did have a property and no longer does. He is currently living with his parents. He wants to rehouse himself and live independently. This is reasonable.
(h) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income.
The respondent is undergoing study because she wishes to change careers. There is no evidence before me that this change will increase her earning capacity.
The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant.
This is not relevant.
(j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.
The relationship was short. The applicant’s career was already established. This section does not apply.
(k) The duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
This provision does not apply. The respondent has an earning capacity as a (occupation omitted). The relationship was short and has not affected this.
(l) The need to protect a party who wishes to continue that party’s role as a parent.
In this case the respondent has the primary care and control of X who is very young. However, she does have some capacity for employment. The respondent has the skills to be able to obtain part time work. X is already going to day care a few days a week because of the respondent’s studies. This is not a case where the respondent needs to retrain in order to gain an earning capacity. The respondent wants to change careers which she is entitled to do but she cannot expect the applicant to support her financially whilst she does so.
(n) The terms of any order made or proposed to be made under section 90SM in relation to: (i) the property of the parties.
As a result of the property settlement, the respondent will retain the Property A home subject to the mortgage together with her car and superannuation. The applicant has his car and superannuation. He no longer has real estate.
(q) Any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship has provided, is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship.
These is a Child Support Assessment in place.
(m), (o) – (p), (s) and (t)
These factors are not relevant.
(r) Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
As mentioned previously, it is necessary to take into account the fact that the father has an obligation to maintain his two older children. It is also reasonable that he rehouse himself in independent accommodation.
I find that given the respondent’s health issues and the stressful nature of Court proceedings both in this Court and the Magistrates’ Court of Victoria, it was reasonable for the respondent not to seek employment. I also find that it is reasonable that the respondent be given an opportunity to find employment. In the circumstances I find it is proper to order that the applicant is to continue to pay the respondent maintenance in the sum of $1733.33 per month, with final payment to be made on 15 December 2017.
Costs of issuing subpoenas
The respondent seeks an order that the applicant pay her costs of issuing subpoenas. She sets out the disbursements she has incurred. She has not incurred legal fees. She says it was necessary for her to issue the subpoenas because the applicant failed to comply with his disclosure obligations. Certainly in cross examination, the applicant conceded that he had not complied with the request from her. It is also clear that in one piece of correspondence between the parties, the applicant said he would not provide documents requested by her until she provided documents he requested. This was an unhelpful and immature response. Both parties have obligations to provide disclosure of documents relevant to the issues in dispute. The respondent has issued two subpoenas to (omitted) Bank.
Rule 15A.05 of the Federal Circuit Court Rules 2001 (Cth) limits the number of subpoenas parties can issue without leave of the Court. Parties are limited to requesting the issue of five subpoenas each. Both parties caused more than five subpoenas to be issued.
Section 117 of the Family Law Act addresses the issue of costs. Pursuant to s.117(1) each party pays their own costs. I am not satisfied that there are justifying circumstances in this case to depart from that rule.
I certify that the preceding one hundred and twenty-one (121) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 21 April 2017
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Jurisdiction
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Remedies
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Statutory Construction
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Procedural Fairness
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