GARRA-MARSH & GARRA-MARSH (NO.3)
[2012] FMCAfam 1144
•24 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GARRA-MARSH & GARRA-MARSH (NO.3) | [2012] FMCAfam 1144 |
| FAMILY LAW – Property – binding financial agreement – application to set aside binding financial agreement. FAMILY LAW – Maintenance – spousal maintenance – binding financial agreement relating to spousal maintenance – application to set aside binding financial agreement. FAMILY LAW – Maintenance – spousal maintenance – orders – interim orders – application for interim spousal maintenance – application for lump sum spousal maintenance – where binding financial agreement in force – no jurisdiction to make an interim order for spousal maintenance. CHILD SUPPORT – Binding child support agreement – application to set aside binding child support agreement. CHILD SUPPORT – Application for interim child support – application for lump sum child support – whether child support agreement in force – whether child support agreement precludes application for orders by way of child support – whether child support agreement is a binding child support agreement – where binding child support agreement in force – no jurisdiction to make an interim order for payments of child support. PRACTICE & PROCEDURE – Competency – objection to competency. PRACTICE & PROCEDURE – Directions – pre-trial directions. |
| Child Support (Assessment) Act 1989 (Cth), ss.24, 25, 80C, 80CA, 80D, 81, 82, 83, 84, 100,136 Evidence Act 1995 (Cth) s.56 Family Law Act 1975 (Cth), ss.69ZT, 71A, 90C, 90D, 90E, 90G, 90K, 117. Federal Magistrates Act 1999 (Cth) s.39 Federal Magistrates Court Rules 2001 rr.8.02, 15A.05, 15.25 |
| Black v Black [2008] FamCAFC 7; (2008) 38 Fam LR 503; FLC 93-357 Re F: Litigants in Person Guidelines [2001] FamCA 348; (2001) 27 Fam LR 517; FLC 93-072 Garra-Marsh & Garra-Marsh (No.2) [2012] FMCAfam 1135 |
| Applicant: | MS GARRA-MARSH |
| Respondent: | MR GARRA-MARSH |
| File Number: | SYC 1541 of 2009 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 August 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 24 October 2012 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: | No solicitor on the record |
| Counsel for the Respondent: | Ms Ede |
| Solicitors for the Respondent: | Abrams Turner Whelan Family Lawyers |
ORDERS
The Application in a Case filed on 12 July 2012 is dismissed.
The Respondent is to file and serve an affidavit particularising the costs and disbursements sought in connection with the Application for costs filed on 2 August 2012.
Within six (6) weeks from the date of these Orders the Applicant
Ms Garra-Marsh is to file and serve an Amended Application for Final Orders fully particularising the legislative bases upon which she relies in seeking to set aside all or any of the following:
(a)Binding Financial Agreement entered into between the parties on 17 April 2009;
(b)Binding Child Support Agreement entered into between the parties on 17 April 2009; and
(c)Binding Financial Agreement entered into between the parties on 7 August 2009.
Within six (6) weeks of the date of these Orders the Applicant
Ms Garra-Marsh is to file and serve an affidavit setting out the evidence upon she seeks to rely on the final hearing of the Application.
Within six (6) weeks after the date of service upon him of the Amended Application and Affidavit referred to in Orders (3) and (4) above the Respondent Mr Garra-Marsh is to file and serve an Amended Response and an affidavit setting the facts upon which he seeks to rely.
All affidavits filed in this proceeding must comply with the requirements of Rule 15.25 in that they must be divided into paragraphs numbered consecutively with each paragraph being as far as possible confined to a distinct part of the subject of the affidavit.
The Application will be adjourned to a date to be fixed by the Court for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Garra-Marsh & Garra-Marsh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1541 of 2009
| MS GARRA-MARSH |
Applicant
And
| MR GARRA-MARSH |
Respondent
REASONS FOR JUDGMENT
Application
The substantive Application is an application to set aside two binding financial agreements, one relating to spousal maintenance and one relating to matrimonial property, and a binding child support agreement brought by the former Wife and the Mother of the parties’ child. The application, whilst not precisely pleaded, is contained in a Response and a supporting affidavit, both filed on 17th February 2012 in response to an Application for parenting orders brought by the father and former husband.
Final orders have been made in the parenting matter in a decision handed down immediately before this one (Garra-Marsh & Garra-Marsh (No.2)[1]). As the only substantive matters for determination are those brought by the wife, she should therefore be the Applicant in this proceeding.
[1] [2012] FMCAfam 1135
Orders Sought
In her Response filed on 17th February 2012 the Applicant seeks an Order as follows:
I seek permission/leave of the court to review financial support and settlements.
Whilst this proposed order is rather imprecisely drafted, the Applicant sets out what she wants in more detail in her accompanying affidavit:
· I also seek permission/leave of the court to review final financial settlement, with a view to amending it, to include settlement relating to [X]’s private education as well as amendment to child/spousal support arrangements and amendment to settlement of marital assets, including all forms of financial and investment properties, which to date have remained insufficiently disclosed by the applicant, Mr Garra-Marsh.[2]
[2] Affidavit of Ms Garra-Marsh 17.2.2012 second page
The Reply filed by the now Respondent on 23rd March 2012 seeks an Order:
That the Respondent’s Application filed 17 February 2012 insofar as it seeks to set aside the Binding Financial Agreements entered into between the parties on 17 April 2009 and 9 August 2009 and the Binding Child Support Agreement entered into between the parties on 17 April 2009 be dismissed.
A costs order is also sought.
The Applicant filed an Application in a Case on 12th July 2012, supported by a Financial Statement and an affidavit. It is hand-printed and difficult to read, as the text has been squeezed into various places on the form. However, the Applicant is seeking interim orders for spousal maintenance and child support. She also appears to be seeking a lump sum to finance her pending litigation in respect of the substantive orders which she seeks. The Applicant sets out the orders that she seeks, in some greater detail, on the second page of her affidavit of 11th July 2012.
The orders sought are:
1. Leave to serve short notice – this is an urgent application for interim financial remedy/variation in level of spousal maintenance and variation of child support order dated 17th April 2009.
2. Variation in spouse maintenance/child support, from $970 per week, to $2500 per week (to be adjusted annually upward by Consumer Price Index) (my ex-husband’s current weekly support to us is made up of $600 spouse maintenance and approx $370 child support per week.
3. Lump sum of $100,000 spouse maintenance to meet costs of new car, rental bond on better appointed/higher quality property, the payment of private school fees prior to obtaining final orders on financial matters, payment of outstanding invoices to Edward Hayes solicitors and all other outstanding household, pre-school/educational, utilities bills etc.
4. Lump sum of $50,000 – variation child support order, to give [X] and I[3] some interim financial security in meeting further miscellaneous/unforeseen/costs, prior to obtaining final orders on financial matters.
[3] sic
The Application in a Case did not seek any interim Orders in respect of the Binding Financial Agreement of 7th August 2009, relating to property matters.
On 2nd August 2012 the Respondent filed a Response to an Application in a Case seeking the following Orders:
1. That the Application in a Case filed 12 July 2012 be dismissed.
2. That the Applicant to the said Application in a Case pay the Respondent’s costs of and incidental to the Application in a Case filed 12 July 2012 on an indemnity basis.
When the Application was mentioned for directions on 13th August 2012, at the same time as final hearing of the Application for parenting orders, the Respondent’s solicitor, Ms Ede sought the orders set out in a Minute entitled “Applicant’s Proposed Minute of Order Re Property Issues”.
The proposed orders are:
1. That the Respondent file and serve on the Applicant by no later than 4pm on 10 September 2012 an Amended Response fully particularising all legislative bases upon which she relies in seeking to set aside each or all of the following:-
a. Binding Financial Agreement entered into between the parties on 17 April 2009;
b. Binding Child Support Agreement entered into between the parties on 17 April 2009;
c. Binding Financial Agreement entered into between the parties on 7 August 2009.
2. The Respondent do all things and sign all documents necessary to cause Michael Conley Lawyers to provide to the Applicant’s solicitors, Abrams Turner Whelan Family Lawyers within fourteen days copies of all invoices and accounts issued by them to the Respondent, such invoices being from and including the commencement of their retainer by the Respondent until and including the invoice and/or account pertaining to all work done up to the end of 15th April 2009.
3. The Respondent be restrained from filing any further affidavit material in relation to her application to set aside the abovementioned Agreements, except with leave of the Court.
4. That the matter be allocated a preliminary one day hearing to determine objections to the parties’ affidavit material.
The Applicant told the Court that she wished to amend her Application in a Case so as to seek lump sum amounts of $300,000.00 by way of spousal maintenance and $200,000.00 by way of child support. As to her substantive application, the Applicant conceded that she had filed a lot of material[4] and said that there was evidence of a very complex and intricate distribution of her former husband’s asset pool.
[4] Seven affidavits, most of them very large
Ms Ede, who appeared for the Respondent Husband, submitted that the Application in a Case should be summarily dismissed, as there are in place two binding financial agreements and a binding child support agreement which effectively “cover the field”. Until such time as the substantive Applications to set aside those agreements are decided, then there is no scope for interim orders to be made of the type sought by the Applicant and the Court lacks jurisdiction. In effect, the submission is in the nature of an objection to the competence of the Application, as an Application is not competent if it seeks Orders that the Court has no jurisdiction to make.
Ms Ede also said that the Respondent was seeking an order for costs on an indemnity basis.
The Interim Application
The Applicant is seeking interim spousal maintenance and child support orders, pending the determination of her Application to set aside the financial agreements and the child support agreement.
In an interim Application, the Court does not usually take oral evidence and allow cross-examination, so the Court is not in a position to make a finding on contested factual matters. However, the Court can draw conclusions from uncontested material.
The parties entered into a Binding Financial Agreement relating to spouse maintenance and a Child Support Agreement on 17th April 2009. On 9th August 2009 they entered into a further Binding Financial Agreement dealing with property issues.
Copies of the Binding Financial Agreement dated 17th April 2009 and the Child Support Agreement of the same date were filed at the Sydney Registry of this Court on 1st July 2009.
A copy of the Binding Financial Agreement dated 7th August 2009 is annexed to the Applicant’s affidavit of 17th February 2012.
The Binding Financial Agreement of 17th April 2009 was entered in contemplation of the parties’ divorce hearing which was to take place in this Court on 5th May 2009.
The relevant paragraphs of the Agreement state:
2. This is a Financial Agreement under Section 90C of the Family Law Act and it is agreed by the parties to cover spousal maintenance.
3. It is intended that this Agreement shall exclude the power of the Court from having financial jurisdiction to make any Order relating to spousal maintenance of the parties to this Agreement other than by way of implementation or enforcement.
4. There is to be no spousal maintenance paid by Mr Garra-Marsh to Ms Garra-Marsh or by Ms Garra-Marsh to
Mr Garra-Marsh other than as set out in this Clause:-
(a)Pursuant to Section 90E of the Family Law Act the parties for whose provision maintenance is made pursuant to this sub-clause is Ms Garra-Marsh and the amount provided by Mr Garra-Marsh to Ms Garra-Marsh for the maintenance of Ms Garra-Marsh shall be $600.00 per week commencing on the 1 May 2009 and to be paid by Mr Garra-Marsh monthly in advance on the first of each until [X] turns five years of age on [date omitted] 2012;
(b)thereafter at no time in the future shall Ms Garra-Marsh make a claim for spousal maintenance against Mr Garra-Marsh;
(c)at no time in the future shall Mr Garra-Marsh make a claim for spousal maintenance against Ms Garra-Marsh;
(d)pursuant to Section 90E of the Family Law Act the party for whose provision maintenance is made pursuant to this sub-clause is Mr Garra-Marsh and the amount provided for the maintenance of Mr Garra-Marsh is $1.00;
(e)Taking into account the terms and effects of this Agreement, the parties agree that Mr Garra-Marsh and Ms Garra-Marsh would have been able to support himself and herself respectively without an income tested pension, allowance or benefit at the time this Agreement comes into effect…
11.This Agreement is intended to operate in substitution for the rights of either party to claim spousal maintenance orders under the Family Law Act 1975 (Cth).
Financial Agreements during a marriage are covered by s.90C of the Family Law Act. Financial Agreements after a Divorce Order is made are covered by s.90D of the Act.
Section 90E of the Act sets out specific requirements with respect to provisions in financial agreements relating to the maintenance of a party or a child or children:
A provision of a financial agreement that relates to the maintenance of a spouse party to the agreement or a child or children is void unless the provision specifies:
(a)the party, or the child or children, for whose maintenance provision is made; and
(b)the amount provided for, or the value of the portion of the relevant property attributable to, the maintenance of the party, or of the child or each child, as the case may be.
Section 90G sets out the conditions required for a financial agreement to be binding on the parties:
(1)Subject to subsection 1A, a financial agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is signed by all parties; and
(b)before signing the agreement, each spouse party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time the advice was provided to that party, of making the agreement; and
(c)either before or after signing the agreement, each spouse party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(ca)a copy of the statement referred to in paragraph (c) that was provided to a spouse party is given to the other spouse party or to a legal practitioner for the other spouse party; and
(d)the agreement has not been terminated and has not been set aside by a court.
(1A)A financial agreement is binding on the parties to the agreement if:
(a) the agreement is signed by all parties: and
(b)one or more of paragraphs (1)(b), (c) and (ca) are not satisfied in relation to the agreement; and
(c)a court is satisfied that it would be unjust and inequitable if the agreement were not binding on the spouse parties to the agreement (disregarding any changes in circumstances from the time the agreement was made); and
(d)the court makes an order under subsection (1B) declaring that the agreement is binding on the parties to the agreement; and
(e)the agreement has not been terminated and has not been set aside by a court.
(1B)For the purposes of paragraph (1A)(d), a court may make an order declaring that a financial agreement is binding on the parties to the agreement, upon application (the enforcement application) by a spouse party seeking to enforce the agreement.
If there is a binding financial agreement in existence, it will have the effect of ousting the jurisdiction of the court (Family Law Act, s.71A). Subsection 71A(1) provides:
(1) this Part[5] does not apply to:
(a)financial matters to which a financial agreement that is binding on the parties to the agreement applies; or
(b)financial resources to which a financial agreement that is binding on the parties to the agreement applies.
[5] i.e. Part VIII of the Act relating to Property, Spousal Maintenance and Maintenance Agreements
It was held in Black v Black[6] that, as a binding financial agreement removes the jurisdiction of the Court to determine those matters covered by the agreement:
Care must be taken in interpreting any provision of the Act that has the effect of ousting the jurisdiction of the Court.[7]
[6] [2008] FamCAFC 7; (2008) 38 Fam LR 503; FLC 93-357
[7] (2008) 38 Fam LR 503; FLC 93-357 at [40] per Faulks DCJ, Kay and Penny JJ
Consequently, their Honours held that:
We are of the view that strict compliance with the statutory requirements is necessary to oust the court’s jurisdiction…[8]
[8] (2008) 38 Fam LR 503; FLC 93-357 at [45]
An examination of the Agreement shows that it complies with s.90E of the Act as provided by sub-paragraphs 4(a) and (d).
The Agreement appears to have been signed by both parties. Their signatures appear to be essentially similar to the signatures of the parties on their affidavits filed in this proceeding. Part of the Agreement contains Certificates for the purpose of Section 90G signed by the parties’ solicitors, Ms Gathercole and Ms Morris. On its face, the Agreement shows that the parties received independent legal advice.
The Agreement has not been terminated or set aside by a Court. True it is that the Applicant seeks a final order setting the Agreement aside, but no such order has yet been made.
The Agreement appears to comply with the requirements of Subsection 90G(1). On the evidence, therefore, it is a Binding Financial Agreement within the meaning of the Act.
It follows that the Court has no jurisdiction to make an Order for spousal maintenance because the jurisdiction of the Court has been ousted by the Binding Financial Agreement. Consequently, that part of the Application in a Case must fail for want of jurisdiction.
The parties entered into a Child Support Agreement on 17th April 2009.
The preamble to the Agreement refers to the child [X] and describes her as an eligible child under the provisions of the Child Support (Assessment) Act 1989.
Regrettably, there are drafting errors in paragraphs K and L of the preamble, which say:
Annexed to this Agreement and marked “A” is a Certificate of Independent Legal Advice signed by Mr Garra-Marsh, solicitor, of Abrams Turner Whelan for Mr Garra-Marsh.
Annexed to this Agreement and marked “B” is a Certificate of Independent Legal Advice signed by Ms Garra-Marsh, solicitor, of Michael Conley Lawyers for Ms Garra-Marsh.
Clearly, these are clerical errors. The parties did not, and could not, give themselves independent legal advice. An examination of the Certificates of Independent Legal Advice that form Annexures “A” and “B” show that they were signed respectively by the solicitors Gai Gathercole, who acted for the husband, and Lila Morris, who acted for the wife. This issue will be dealt with in a subsequent paragraph of this decision.
The preamble goes on to say, relevantly:
M. This Agreement is intended by Ms Garra-Marsh and Mr Garra-Marsh to constitute a Child Support Agreement under Part 6 Division 2 of the said Act. There are no previous Assessments, Child Support Agreements accepted by the Registrar of the Child Support Agency and/or Court Orders in relation to the maintenance of the child [X].
N. The parties intend by this Agreement that this Agreement will finalise all Child Support issues between them and to end, once and for all, all rights of each against the other in relation to child support.
O. It has been agreed by Ms Garra-Marsh and Mr Garra-Marsh that this Agreement be registered with the Child Support Agency.
P. The Child Support paid by Mr Garra-Marsh under the provisions of this Agreement is to be credited against Mr Garra-Marsh’s liability under any existing, or any future administrative assessment, and is intended to constitute and is to be credited as to one hundred percent (100%) of the annual Child Support payable under any relevant administrative assessment made pursuant to the Act for each year.
The operative parts of the Agreement state:
1.That Mr Garra-Marsh will pay or cause to be paid to
Ms Garra-Marsh by way of periodic child support the sum of $350.00 per week for [X], such sum to be paid monthly, first payment to commence on 1 May 2009 and be paid on the first of each month thereafter until [X] attains the age of 18 or completes her secondary education whichever is the latter.
2.The sum referred to in clause 1 and will be adjusted annually with the first adjustment to be made on 1 May 2010 in accordance with the variation of the Consumer Price Index for Sydney as published by the Commonwealth of Australia Statistician as at the date of the year in question.
3.Mr Garra-Marsh and Ms Garra-Marsh enter into this Agreement pursuant to the provisions of Section 80C of the Act to the effect that the same will operate in relation to all child support matters dealt within herein in substitution for any rights that either Ms Garra-Marsh or Mr Garra-Marsh may have now or in the future as the payer or payee of child support under the Act.
The parties each acknowledged that they had been provided with independent legal advice.
Section 80C of the Child Support (Assessment) Act 1989 sets out the requirements for an agreement to be a binding child support agreement:
(1) An agreement is a binding child support agreement if:
(a)the agreement is binding on the parties in accordance with subsection (2): and
(b) the agreement complies with subsection 81(2).
(2)For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is in writing; and
(b)the agreement is signed by the parties to the agreement; and
(c)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(d)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(e)the agreement has not been terminated under section 80D; and
(f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.
It can be seen that the requirements under s.80C of the Child Support (Assessment) Act are similar to those in s.90G of the Family Law Act relating to Binding Financial Agreements.
A binding child support agreement must not be varied (s.80CA).
Subsection 80D(1) sets out the way in which a binding child support agreement may be terminated:
(1)A binding child support agreement (the previous agreement) may be terminated only by:
(a)a provision being included in a new binding child support agreement made by the parties to the previous agreement to the effect that the previous agreement is terminated; or
(b)the parties to the previous agreement making a written agreement (a termination agreement):
(i) that is binding on the parties in accordance with subsection (2); and
(ii) to the effect that the agreement is terminated; or
(c)a court order setting aside the previous agreement under section 136.
The requirements for child support agreements generally are set out in sections 81 to 84 of the Act. Subsection 81(2), which is referred to in paragraph (b) of subsection 80C(1) above, provides that:
(2)An agreement is a binding child support agreement or a limited child support agreement if it complies with the following requirements:
(a)section 82 (children I relation to whom agreements may be made);
(b)section 83 (persons who may be parties to agreements);
(c)section 84 (provisions that may be included in agreements).
Subsection 82(1) provides that:
An agreement is a child support agreement only if it is made in relation to a child in relation to whom an application for administrative assessment is, under section 24, entitled to be made on the day the agreement is entered into.
Subsection 83(1) provides at paragraph (a) that:
An agreement is a child support agreement only if it is made between:
(a)2 parents of a child who, under section 25, would be able to properly make an application for administrative assessment of child support for the child in relation to whom the agreement is made on the day on which the agreement is entered into;
Section 84 of the Act sets out the kinds of provisions of which one or more must be included for the agreement to be a child support agreement. The most obvious provision is that provided in paragraph (a) of subsection 84(1):
(a)provisions under which a party is to pay child support for a child to another party in the form of periodic amounts paid to the other party;
It seems clear that, when considering whether or not the agreement between the parties is a binding child support agreement, the Court should apply the reasoning in Black v Black[9] and require that there should be strict compliance with the statutory requirements.
[9] supra
The agreement complies with the requirements for it to be a child support agreement as set out in s. 81 in that:
a)It is made in relation to a child in relation to whom an application administrative assessment entitled to be made under s.24 of the Act, in that the child [X] was, on the day on which the agreement was entered into, namely 17th April 2009:
i)an eligible child;
ii)under 18 years of age, having been born [in] 2007;
iii)not a member of a couple;
iv)present in Australia on the date of the agreement; and
v)an Australian citizen.
b)It is made between the parents of the child as provided by s.25;
c)It contains a provision under which one party is to pay child support for the child to the other party in the form of periodic amounts (s.84(1)(a)).
What has to be decided is whether the child support agreement is binding on the parties under s.80C.
The agreement is in writing (s.80C(2)(a)). It is signed by the parties to the agreement (s.80C(2)(b)). It has not been terminated under s.80D, although the Applicant is apparently seeking a final order that it should be terminated. At this stage, it has not been terminated (s.80C(2)(e))..
It appears that each party has been given a copy of the agreement (as required by s.80C(2)(f)).. The Applicant has annexed a copy of the Agreement to her affidavit of 17th February 2012.
The two paragraphs of the subsection that deal with independent legal advice (80C (2)(c) and (d)) will be dealt with together.
There must be a statement in relation to each party that he or she received independent legal advice from a legal practitioner, as required by paragraph 80C(2)(c). There is such a statement in the agreement, at paragraph J of the preamble:
Each of the parties has been provided, before this Agreement was signed by him or her, as certified in the annexures to the Agreement, with independent legal advice from a legal practitioner as to the following:
1. the effects of the Agreement on the right of that party;
2. the advantages and disadvantages at the time that the advice was provided, to the party of making the Agreement.
Paragraph 80C(2)(d) requires a certificate to be annexed to the Agreement signed by the person who provided that legal advice stating that the advice was provided.
As mentioned in paragraph [35] above, there are drafting errors in paragraphs K and L of the preamble, where the parties themselves are described as the persons who provided independent legal advice to the parties, rather than giving the names of the solicitors themselves. In my view, these are clerical errors which, whilst regrettable, do not affect the validity of the Agreement, because the Certificates themselves, Annexures “A” and “B”, correctly state that the advice was given by Ms Gathercole and Ms Morris to their respective clients.
Thus, I am satisfied that there has been strict compliance with the legislative requirements and the Agreement is a Binding Child Support Agreement under s.80C of the Child Support (Assessment) Act.
Consequently, as the agreement deals with the question of child support between the parties, the Court has no jurisdiction to entertain the Application in a Case seeking provision of interim lump sum child support. The Application is therefore incompetent.
It follows that the Application will be dismissed.
There is an Application for costs, on an indemnity basis, which has been foreshadowed. The Court will consider, under the provisions of subsection 117(2) of the Family Law Act, whether:
a)there are circumstances that justify the making of an order for costs; and
b)if so, whether costs should be ordered on the usual party and party basis or whether they should be made on an indemnity basis.
Directions for Final Hearing
The substantive Application is an Application to set aside the Binding Child Support Agreement of 17th April 2009 and the two Binding Financial Agreements of 17th April and 7 August 2009.
The (now) Respondent seeks certain procedural orders, including the allocation of a hearing day specifically devoted to determining objections to the parties’ affidavit material and an order that the (now) Applicant file an amended pleading fully particularising all legislative bases upon which she relies in seeking to set aside the three agreements.
There is some force to that application, as the Applicant has filed a plethora of lengthy affidavits with a significant number of annexures, not all of which appear to be directly relevant to her Application. For example the most recent affidavit was filed on 10th October 2012, referring to directorship records of directors of companies with 1970 birthdates amounting to 204 pages of unnumbered paragraphs, the relevance of which is not immediately obvious.
The bases of the Application appear to relate to duress and fraud (including non-disclosure of material matters) when the parties entered into the agreements. If that is the case that the Applicant wishes to argue, the Court would need to have regard to the provisions of section 90K of the Family Law Act and section 136 of the Child Support (Assessment) Act.
The Applicant is not legally represented. The Court has an obligation under Re F: Litigants in Person Guidelines[10] to ensure that procedural fairness to all parties in order to ensure a fair trial when this matter is listed for final hearing. This will involve informing the litigant in person of the manner in which the trial is to proceed and any procedures relevant to the litigant to the litigation.
[10] [2001] FamCA 348; (2001) 27 Fam LR 517; FLC 93-072
As it is Ms Garra-Marsh who is seeking to set aside the three agreements, she is the Applicant and she will have the carriage of the matter. That means that she has an obligation to explain what it is that she actually seeks and provide evidence by affidavit in support of her case. It is likely that she, and any other witness that she proposes to call, will be cross-examined in the witness box by counsel for the Respondent. Similarly, the Applicant will have the right to cross-examine the Respondent on his affidavit material.
Each party may subpoena documents considered to be relevant to their case. The Rules of this Court provide that, unless the Court directs otherwise, a party must not request the issue of more than 5 subpoenas in a proceeding (Rule 15A.05).Production of documents on subpoena does not bring about their admission into evidence. Documents sought to be introduced into evidence must be tendered in the usual way and are subject to objection as to their admissibility.
The Applicant’s affidavits filed to date have been lengthy and not compliant with the Rules. Affidavits to be relied on at a final hearing must comply with the Rules. A copy of the Rules can be found online at http. Division 15.4 of the Rules deals with affidavits and provides at Rule 15.25:
The body of an affidavit must be divided into paragraphs numbered consecutively, each paragraph being as far as possible confined to a distinct part of the subject.
Applications under Part VIIIA of the Family Law Act are subject to the rules of evidence, and documents which are inadmissible will be rejected. Section 69ZT of the Family Law Act, which provides that the provisions of the Evidence Act 1995 (Cth) do not apply to child-related proceedings, does not apply to Applications under Part VIIIA, where section 90K is found.
By comparison, an Application to terminate a Binding Child Support Agreement under s.136 of the Child Support (Assessment) Act 1989, will be treated as if it were brought under Part VII of the Family Law Act 1975, by virtue of s.100 of the Child Support (Assessment) Act.
The Applicant, if she chooses to continue to represent herself, would be well advised to make herself familiar with the provisions of the Evidence Act.
The parties also need to consider the length of the matter, i.e. the number of days it will take to hear, and the complexity of the issues to be decided. The purpose of the Federal Magistrates Court is to deal with the less-complex matters in this jurisdiction, and to this end the Court has a protocol with the Family Court which provides that hearings estimated to run for longer than four days will be regarded as more suitable to be heard in the Family Court. This Court will transfer a hearing to the Family Court if the parties cannot provide an assurance that the hearing will be completed within four days.
It is appropriate to list this matter for a one-day hearing to examine the evidence sought to be led and make a determination about its admissibility. One reason for finding that evidence is inadmissible is that it is not relevant. Section 56 of the Evidence Act provides:
(1)Except as otherwise provided by this Act, evidence that is relevant is admissible in the proceeding.
(2)Evidence that is not relevant in the proceeding is not admissible.
I will make directions about the filing of an Amended Application by the Application setting out the basis or bases upon which her claims are made. She will need to file an affidavit setting out the evidence upon which she relies, which will need to be in proper form, compliant with the Rules.
The Respondent will be directed to file and serve a Response and one affidavit in support of that Response.
On the next occasion the parties will be required to provide the Court with an estimate of the number of witnesses to be called, the affidavits and other documents to be relied on, and an accurate estimate of the time the matter will take to hear.
The parties are warned that unless they can provide a reliable assurance that the evidence and submissions can be completed within four days, the Court will transfer the matter to the Family Court under the provisions of Section 39 of the Federal Magistrates Act 1999 and Rule 8.02.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 23 October 2012
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