FIRTH & HALE-FORBES - [2014] FamCAFC 187

FAMILY COURT OF AUSTRALIA

FIRTH & HALE-FORBES

[2014] FamCAFC 187

FAMILY LAW – APPEAL – CHILD SUPPORT – Leave to appeal – Where the mother successfully applied to vary an existing child support departure order to increase the periodic amount to be paid and to have the increased amount backdated – Where the father’s application to vary to nil the existing periodic amount set by departure was dismissed – Where the father failed to establish a ground for departure as required by s 117 of the Child Support Assessment Act 1989 (Cth) – Where father established changes in circumstance but not “special circumstances” – Where the primary judge did not analyse the evidence about the financial impact of those changes on the father’s circumstances – Whether the child support departure orders made on the mother’s application were just and equitable – Whether the primary judge failed to consider whether the effect of the orders would visit hardship on the father and his children from another relationship – Where the payment of income tax cannot be treated as discretionary expenditure - Leave to appeal granted - Appeal allowed – Matter remitted for rehearing.

FAMILY LAW – APPEAL – Application for leave to adduce further evidence – Where the mother seeks to introduce evidence which suggests that the father earned more than he disclosed – Where the evidence should be admitted in response to the father’s application for leave to appeal – Where the evidence supports remission.

FAMILY LAW – APPEAL – COSTS – Where an order for costs was made that the father pay half the mother’s costs of the substantive proceedings – Where the order related to the child support aspect of the proceedings – Where the primary judge was ideally placed to determine the appropriate apportionment – Where the order for costs was substantially based on the outcome of the proceedings – Where as a consequence of the outcome of the child support appeal, the factual premise for the order for costs cannot stand – Appeal allowed – Matter remitted for rehearing.

Child Support Assessment Act (1989) (Cth): ss 4, 111, 117, 118

Bassingthwaite v Leane (1993) FLC 92-410
Bryant & Bryant (1996) FLC 92-690
C & S [2003] FMCAfam 464
Coulton v Holcombe

(1986) 162 CLR 1
Gyselman & Gyselman (1992) FLC 92-279
(1993) FLC 92-430
(1999) FLC 98-004
(1996) FLC 92-665
(1985) 60 ALR 68

Humphries & Humphries
Johnson & Johnson
Liesert v Nutsch
Metwally v University of Wollongong

Water Board v Moustakas

(1988) 180 CLR 491
(1997) FLC 92-771

Wild v Ballard

APPELLANT:

Mr Firth

RESPONDENT:

Ms Hale-Forbes

FILE NUMBER:

SYC

3026

2011

APPEAL NUMBER:	EA	69	of	2013
APPEAL NUMBER:	EA	164	of	2013

DATE DELIVERED:

1 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Murphy & Aldridge JJ

HEARING DATE:

16 May 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATES:

10 May 2013 & 18 October 2013

LOWER COURT MNCS:

[2013] FamCA 334 [2013] FamCA…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: FIRTH & HALE-FORBES [2014] FamCAFC 187
Case: [2014] FamCAFC 187
Decision Date: 1 October 2014

CaseChat Overview and Summary

The case of Firth and Hale-Forbes concerns an appeal against child support departure orders made by Rees J in the Federal Circuit Court of Australia. The mother, the respondent, had successfully applied to vary an existing child support departure order to increase the periodic amount to be paid by the father, the appellant, and to have the increased amount backdated. The father's application to vary the existing periodic amount set by departure to nil was dismissed. The father argued that the primary judge failed to consider whether the effect of the orders would visit hardship on him and his children from another relationship and that the payment of income tax could not be treated as discretionary expenditure. The mother sought to introduce evidence suggesting the father earned more than he disclosed, which should be admitted in response to the father's application for leave to appeal and supports remission.

The legal issues the court had to decide included whether the child support departure orders made on the mother's application were just and equitable, and whether the primary judge failed to consider the effect of the orders on the father and his children from another relationship. The court also had to determine whether the payment of income tax could be treated as discretionary expenditure. Furthermore, the court needed to consider the mother's application for leave to adduce further evidence suggesting the father earned more than he disclosed. Lastly, the court had to address the issue of costs, as the primary judge had ordered the father to pay half the mother's costs of the substantive proceedings, which related to the child support aspect of the proceedings.

The court found that the father had established a ground for departure as required by s 117 of the Child Support Assessment Act 1989 (Cth), but he did not establish "special circumstances." The court held that the primary judge did not analyse the evidence about the financial impact of the changes in circumstance on the father's circumstances. The court concluded that the child support departure orders made on the mother's application were not just and equitable, and the primary judge failed to consider the effect of the orders on the father and his children from another relationship. The court also held that the payment of income tax could not be treated as discretionary expenditure. Consequently, the court granted the father's application for leave to appeal, allowed the appeal, set aside the relevant orders, and remitted the proceedings for rehearing before a judge other than Rees J. The court also allowed the mother's application for leave to adduce further evidence and remitted the matter for rehearing. The court further allowed the appeal regarding the order for costs, set aside the relevant order, and remitted the matter for rehearing. Lastly, the court granted costs certificates to both parties.

The final orders of the court were to grant the father's application for leave to appeal Orders 11 and 12 of the orders made by Rees J on 10 May 2013 and to allow the appeal. The court set aside Orders 11 and 12 of the orders made by Rees J on 10 May 2013 and allowed the appeal EA 164 of 2013. The court also set aside Order 4 of the orders made by Rees J on 18 October 2013 and remitted the proceedings for rehearing before a judge other than Rees J. The court made no order as to costs but granted costs certificates to both parties.

Orders

Orders of the court

The appellant father’s application for leave to appeal Orders 11 and 12 of the orders made by Rees J on 10 May 2013 be granted.

Appeal EA 69 of 2013 be allowed.

Orders 11 and 12 of the orders made by Rees J on 10 May 2013 be set aside.

Appeal EA 164 of 2013 be allowed.

Order 4 of the orders made by Rees J on 18 October 2013 be set aside.

The proceedings be remitted for rehearing before a judge other than Rees J.

That there be no order as to costs.

That the Court grants to the appellant father a costs certificate pursuant to the provisions s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.

10.

That the Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by the appellant and respondent in relation to the rehearing of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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