GOWRIE & CAYLEY

[2015] FCCA 1736

FEDERAL CIRCUIT COURT OF AUSTRALIA

GOWRIE & CAYLEY [2015] FCCA 1736

Catchwords:
CHILD SUPPORT – Application to vary consent orders – application for stay – departure order – where application seeks as interim orders matters that are more in the nature of final orders.

FAMILY LAW – Children – travel – overseas travel.

PRACTICE AND PROCEDURE – Transfer to Family Court – where orders were made by consent in the Family Court in March 2012.

Legislation:

Child Support (Assessment) Act 1989 (Cth), s.117

Child Support (Registration and Collection) Act 1988 (Cth), s.111C

Family Law Act 1975 (Cth), s.65Y

Cases cited:
Goode & Goode [2006] FamCA 1346; (2006) 36 Fam LR 422; FLC 93-286
Gyselman & Gyselman (1991) 15 Fam LR 219; FLC 92-279
Rice & Asplund (1978) 6 Fam LR 570; (1979) FLC 90-725

Applicant: MR GOWRIE

Respondent: MS CAYLEY

File Number: SYC 7730 of 2010

Judgment of: Judge Scarlett

Hearing date: 19 May 2014

Date of Last Submission: 19 May 2014

Delivered at: Sydney

Delivered on: 24 June 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Ms Perla

Solicitors for the Respondent: Diana Perla & Associates

ORDERS

1. The Application for Interim Orders filed on 17 March 2014 is dismissed.

2. The parties’ costs will be costs in the cause, to be decided at a final hearing.

3. The Application for Final Orders filed on 17 March 2014 is transferred to the Family Court of Australia at Sydney to be listed on a date to be fixed.

IT IS NOTED that publication of this judgment under the pseudonym Gowrie & Cayley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 7730 of 2010

MR GOWRIE

Applicant

And

MS CAYLEY

Respondent

REASONS FOR JUDGMENT

Application

1. The Applicant, who is the father of a little girl called [X], is seeking to vary Orders made by consent in the Family Court of Australia on 20 March 2012.

2. First, he wishes to dismiss, on an interim basis, orders by way of a departure from the administrative assessment of Child Support by the Child Support Registrar in respect of the parties’ daughter [X], who was born on [omitted] 2006. Paragraph [28] of the Consent Orders provides that the Applicant should:

   a)pay the mother child support at the rate of $1,842.00 per month;

   b)pay to the child’s school one half of all the child’s school fees, including tuition fees, excursion fees, incidental sporting costs, the cost of school books and school uniforms, and reasonable extra-curricular activities; and

   c)Pay various medical and dental expenses for the child.

3. The Applicant also seeks a stay on the collection of the above payments, a reversion to administrative assessment of child support and a cancellation of all arrears of child support. It is apparent that some of the orders that he seeks, including a reversion to the administrative assessment of child support and a cancellation of all arrears, are more in the nature of final orders than administrative orders.

4. The Applicant also seeks the vacation of Order 17.4, which restrains him from removing the child from the Commonwealth of Australia unless by agreement of the Respondent or Order of the Court. The Respondent, it needs hardly be stated, does not agree to this proposal.

5. It would follow that the Applicant would also need to seek a suspension of Order 19, which provides for the child’s name to remain on the Family Law Watch List (as it is now called) maintained by the Australian Federal Police. The Applicant stated that he wished to take the child to the United Kingdom for a holiday, initially between 7 and 14 July 2014 and then in January 2015.

6. The Respondent mother filed a Response, a Financial Statement and an affidavit in support on 12 May 2014. In her Response, the Respondent seeks orders that:

   a)the application for Interim Orders should be dismissed; and

   b)(curiously) that the Applicant pay her costs on an indemnity basis.

7. As the Respondent was not represented at the time, although she was later briefly represented by Ms Perla, solicitor, would seem that her legal costs at that stage, other than filing fees, would otherwise have been non-existent.

8. As I said, the Respondent obtained legal representation on 19 May 2014 when he then solicitor, Ms Perla, filed a Notice of Address for Service.  

Evidence and Submissions

1. The Application for Interim Orders was heard on 19 May 2014.

2. The Applicant relied on the following:

   a)his affidavit affirmed on 17 March 2014 with a lengthy list of annexures;

   b)a Written Submission;

   c)a Case Outline; and

   d)a Tender Bundle of some 23 documents.

3. The Applicant did not file a Financial Statement.

4. The Respondent relied on her affidavit sworn on 7 May 2014. It is a lengthy affidavit, running to some 321 paragraphs, along with some 35 annexures. In fairness, much of the affidavit relates to the Final Orders sought rather than interim orders.

5. In fairness to the Applicant, also, is should be noted that, although his affidavit runs to some 421 mercifully short paragraphs, with 18 annexures, much of his affidavit relates more to the final orders that he seeks rather than the interim orders.

6. Essentially, it is the Applicant’s case that:

   a)he can no longer make payments of Child Support in accordance with the earlier Orders as he had to leave his employment in February 2014 and would experience difficulty in obtaining other employment; and

   b)he wishes to take the child on a holiday to the United Kingdom to see her paternal grandmother and other members of her paternal extended family.

7. The Respondent opposes the interim orders sought by the Applicant on the basis that:

   a)the Applicant left his employment voluntarily;

   b)she does not believe his claim that he has no income;

   c)she fears that if the Applicant is permitted to remove the child from Australia he will not return her; and

   d)it is inappropriate for the Applicant to be travelling overseas if he has no income to enable him to meet his obligations under the orders.  

Background

1. The Respondent was born on [omitted]1962. She is now 52 years of age.

2. The Applicant was born on [omitted] 1971. He is now 44 years of age.

3. The parties met in around September 2002. They lived together in New York before moving to Sydney in October 2004.

4. The parties’ child [X] was born on [omitted] 2006.

5. The parties separated in September 2010.

6. The Respondent commenced proceedings in the Family Court at Sydney in November 2010. The parties entered into Final Consent Orders on 20 March 2012. They were each represented by Senior Counsel.

7. The Applicant formed a relationship with one Ms B. This relationship broke up but was recommenced in January 2014. The Applicant and Ms B commenced cohabitation on 8 February 2014 and became engaged in April of that year.

8. The Applicant resigned from his employment on 24 February 2014, claiming that his situation had become untenable.

Conclusions

1. The Applicant is seeking interim, orders that would effectively:

   a)set aside the Departure Orders made on 20 March 2012;

   b)stay the operation of those Orders;

   c)refer the parties to the Child Support Registrar for an administrative assessment of child support;

   d)discharge the arrears of child support; and

   e)permit him to take the child out of Australia for a holiday in the United Kingdom.

2. Whilst the Respondent asserts that the Applicant left his employment voluntarily, the Applicant has provided evidence that he had no choice but to leave due to the toxic situation in his workplace. He deposed that Ms B, who had apparently been a work colleague, had previously been dismissed as a result of an incident in which he had been involved and had received a warning from his employer. It is not possible to test this assertion at an interim hearing and, accordingly, the Court cannot make a finding of fact on this disputed issue (see Goode & Goode[1]at [68]).

   [1] [2006] 1346 FamCA; (2006) 36 Fam LR 422; FLC 93-286

3. The Applicant’s submission goes to attack the making of the Departure Order under s.117 of the Child Support (Assessment) Act 1989 (Cth) in the Consent Orders of 20 March 2012. The Applicant refers to the decision in Gyselman & Gyselman[2] and submits that the Respondent does not satisfy the criteria in s.117 so that the Departure Order should be set aside.

   [2] (1991) 15 Fam LR 219; (1992) FLC 92-279

4. That is without doubt a matter for a final hearing. The Orders were made by consent on 20 March 2012 when both parties were represented by Senior Counsel. It would be incumbent upon the Applicant to provide evidence to show that the Orders are no longer appropriate, which cannot really be done at an interim hearing.

5. The Applicant deposed that there would be a delay before he could obtain Centrelink benefits and a delay of six months from the date of his resignation from his employer before he could recommence work in his field. That period of time has now elapsed and there appears to be no reason, on the Applicant’s evidence, why he would not be able to obtain further employment at the time of making this decision.

6. The Applicant has stated that he is living with his fiancée, Ms B, who, on the Respondent’s case, has her own business. There is no affidavit from Ms B about her financial circumstances, which would be relevant if she and the Applicant are cohabiting.

7. The Applicant’s evidence is to the fact that he had a temporary loss of income due to his having been obliged to leave his employment. That situation should now have resolved itself and, accordingly, there are no grounds for a stay of the operation of the Child Support Orders. The question of setting aside the orders and the question of the arrears are essentially a matter for final hearing.

8. The Applicant seeks orders from the Court permitting him to take his daughter out of Australia to the United Kingdom to spend time with her[3] paternal grandmother and other extended members of her paternal family. He has provided evidence by way of an email from his mother, Ms G, in which she agrees to pay the airfares for the Applicant and the child. There is no evidence given as to why the grandmother could not travel to Australia to spend time with her granddaughter. Clearly, she has the means to do so.

9. Whether or not the Respondent’s fears, expressed in her affidavit, that the Applicant would take the child out of Australia permanently, are of any substance can only be tested at a final hearing. Whilst the United Kingdom is a party to the Hague Convention on the Civil Aspects of International Child Abduction, the Applicant has provided no evidence that he has the means to lodge any amount of money as a surety against the child’s return.

10. Again, the question might be asked why there is a need to vary the Orders made on 20 March 2012. Again, this is more properly a matter for a final hearing.

11. The Application for Interim Orders will be dismissed. The parties’ costs will be costs in the cause and can be decided at the final hearing in the Family Court.

12. The Applicant, in his Application for Final Orders, seeks a wholesale re-opening of matters relating to Child Support and parenting orders., Clearly, in respect of the latter he will need to overcome the rule in Rice & Asplund[4] that there must be shown to be sufficient reasons to vary parenting orders, noting that the Orders in this matter were made as recently as 20 March 2012.

    [4] (1978) 6 Fam LR 570; (1979) FLC 90-725

13. In my view, all of these matters should return to the Family Court of Australia, where those Orders were made by consent.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  26 June 2015