Kildea & Kildea (No. 2)
[2007] FamCA 1658
•1 November 2007
FAMILY COURT OF AUSTRALIA
| KILDEA & KILDEA (NO. 2) | [2007] FamCA 1658 |
| FAMILY LAW – CHILD SUPPORT DEPARTURE ORDER – Application for leave to appeal – Application for stay of order – Principles relevant to stay application – Application for stay refused |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act (1989) s 102, s 102(8) Child Support (Registration and Collection) Act (1988) s 111C Family Law Rules (2004) Rule 22.12 |
| Alexander & Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Hendy & Deputy Child Support Registrar (2001) 164 FLR 236; (2001) 27 Fam LR 641; [2001] FamCA 632 at [39]-[44] K & K [2000] FamCA 356 Kelly & Kelly (1980) FLC 91-007 OP & HM (2002) 168 FLR 465; (2002) 29 Fam LR 251; [2002] FamCA 454 at [18] Penrith Whitewater Stadium Ltd & Lesvos Pty Ltd [2007] NSWCA 103 Pratt & Pratt (1993) FLC 92-354 Reichstein & Reichstein [2007] FamCA 365 |
| APPLICANT: | Mr Kildea |
| RESPONDENT: | Ms Kildea |
| FILE NUMBER: | BRC | 8727 | of | 2007 |
| DATE DELIVERED: | 1 November 2007 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | O'Reilly J |
| HEARING DATE: | 27 July and 14 September 2007 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr McMillan, McMillan Boylson Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Ms Vachon, Solicitor, Christine Vachon Solicitor |
Order
The father’s application for an order that the child support departure order made on 27 November 2006 be stayed until the determination of appeal NA16/2007 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Kildea & Kildea is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 8727 of 2007
| MR KILDEA |
Applicant
And
| MS KILDEA |
Respondent
REASONS FOR JUDGMENT
Application
By application filed on 19 July 2007, Mr Kildea (the father) seeks a stay of the departure order which I made on 27 November 2006. The orders sought are:
(a)That the orders made by O’Reilly J on 27 November 2006 in relation to an application for a departure order be stayed until the determination of appeal NA16/07 presently pending in the Full Court of The Family Court of Australia.
(b)That the costs of this application be recovered.
[italics added]
Background
On 27 November 2006, I pronounced judgment and gave reasons for judgment in property proceedings between the father and Ms Kildea (the mother) and pronounced judgment and gave reasons for judgment in child support departure proceedings between the parties.
The departure order provided:
1 There be a departure order in relation to the child support otherwise payable by the father in relation to the children K born in September 1994 and A born in September 1997 (the children) pursuant to the Child Support (Assessment) Act 1989 (the Act).
2 The administrative child support assessments for the children which issued pursuant to the Act on 18 January 2005 and on 25 June 2006 (the two assessments which issued on that date) be set aside.
3 Instead of administrative assessment under the Act, the child support payable by the father in respect of the children in the period 1 January 2005 to 30 June 2008 be as provided in paragraph 4 of this order.
4 The father pay to the mother the following child support for the children for the period 1 January 2005 to 30 June 2008:
(a) $36,500 by 31 December 2006, representing $39,000 being $375 weekly for the 104 weeks between 1 January 2005 and 31 December 2006, less $2,500 already paid;
(b) $375 weekly in advance between 1 January 2007 and 30 June 2008, payable as $1,500 each four weeks in advance;
(c) 54.66% of any component of private health insurance premiums paid by her in relation to private health cover for the children (only if additional to the private health cover which she pays for herself), within 21 days of a written request by the mother, annexing copies of supporting documents relating to that expenditure; and
(d) 54.66% of the children’s medical, dental (including orthodontic) and optical (including ophthalmological and optometric) costs net of any refunds or reimbursements paid by Medicare or by any private health cover maintained by the mother for the children, but only when this expenditure has exceeded net (that is, after any refunds and reimbursements) $1,404 in each financial year ($702 for the period 1 January 2005 to 30 June 2005), within 21 days of a written request by the mother, annexing copies of supporting documents showing the net expenditure exceeding that sum.
On 16 May 2007, the Full Court heard an appeal lodged by the father against the property order and also an application by the father filed in the Full Court on 5 February 2007 under s 102(1) of the Child Support (Assessment) Act 1989 (the Assessment Act) for leave to appeal the departure order and that the time to bring the appeal be enlarged: See Division 22.7.1 of the Family Law Rules 2004 (the Rules) and s102(8) of the Assessment Act.
The father had filed a notice of appeal against the departure order on 22 December 2006 without first seeking leave to appeal. That proceeding has been discontinued.
In relation to the application for leave to appeal filed in the Full Court on 5 February 2007, an affidavit in support by Mr McMillan, solicitor, filed in the Full Court on 16 February 2007 made clear that the grounds of appeal, if leave be granted, are the same grounds as in the notice of appeal filed on 22 December 2006.
On 16 May 2007 the Full Court ordered:
(1)That within fourteen (14) days of today’s date the appellant husband file and serve written submissions in support of the application for leave to appeal against the orders of 27 November 2006 concerning child support (filed 16 February 2007), together with an affidavit and brief supporting submissions in relation to any further matter the appellant would wish the Court to take into account in the event of a re-exercise of discretion with respect to the property settlement orders.
(2)That the respondent wife have a further fourteen (14) days to file and serve written submissions in response with respect to the application for leave to appeal, and an affidavit and brief supporting submissions with respect to the re-exercise of discretion with respect to the property settlement orders.
(3)That the appellant husband have a further seven (7) days to file and serve any submission or other material in response to the material filed by the respondent wife.
[italics added]
The orders of the Full Court are prefaced “Upon the appeal by the husband against the orders of the Honourable Justice O’Reilly made on 27 November 2006 coming before the Court for hearing”. However, it would appear, by the substance of the orders made, that to date only the appeal against the property order has been heard in that the parties were ordered to file and serve written submissions in relation to the father’s application for leave to appeal the departure order.
I would thus interpret the father’s application as one for an order for a stay pending determination of the father’s application for leave to appeal, and if leave be granted, the appeal (rather than for a stay until determination of the appeal “presently pending” in the Full Court, as claimed in the father’s application).
The written submissions to the Full Court of Senior Counsel for the father and of Counsel for the mother, appropriately, address the question of whether an error of principle or substantive injustice has occurred, or any error of principle which has affected the father’s substantive rights. Hendy & Deputy Child Support Registrar (2001) 164 FLR 236; (2001) 27 Fam LR 641; [2001] FamCA 632 at [39]-[44]; OP v HM (2002) 168 FLR 465; (2002) 29 Fam LR 251; [2002] FamCA 454 at [18].
I am uncertain whether the Full Court intends to determine the application for leave to appeal on the papers, or list a hearing date for both the application for leave to appeal and if granted the appeal. However, nothing turns on that in relation to the father’s application for a stay.
The father’s application for a stay was not filed until 19 July 2007, nearly eight months after the departure order was made, and several months after proceedings in the Full Court were instituted.
It appears however that in April or May 2007, the mother sought the assistance of the Child Support Agency to collect the child support payable by the father pursuant to the departure order. See annexure BSK2 to the father’s affidavit filed on 27 July 2007. It may have been this incident which triggered the application for a stay.
The father, it appears, as at 27 July 2007, had paid $4,500 to the mother since the order was made (father’s affidavit annexure BSK1; mother’s affidavit par 3; comprising $2,000 on 22 February 2007; $1,000 on 12 April 2007; and $500 on each of 15 May 2007, 19 June 2007 and 19 July 2007). Since then the father has paid one sum of $5,933.04 to the Child Support Agency on 14 August 2007. Thus, the total paid as at 14 September 2007 was $10,433.04.
Principles relating to the stay application
Rule 22.12 of the Rules applies:
RULE 22.12 STAY
22.12(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
22.12(2) If an appeal has been started, or a party has applied for permission to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
22.12(3) An application for a stay must be made to the Judge, Federal Magistrate or Magistrate who made the order under appeal.
Note 1 Under subsection 55 (3) of the Act, a divorce order is stayed until after an appeal against it is determined or discontinued.
Note 2 An application for a stay may be listed before another judicial officer if the judicial officer who made the order under appeal is unavailable (see rule 1.13).
[italics added in 22.12(2)]
Rule 22.12(2) refers to “permission” to appeal. Section 102(1) of the Assessment Act refers to “leave” to appeal. Rule 22.42, in Division 22.7.1 of the Rules refers to applications for “permission” to appeal from an order. An example beneath Rule 22.42 refers to an application for an order under s 102(8) of the Assessment Act. Division 22.7.2 of the Rules deals with applications for “permission” to appeal. The note to that Division provides that a party needs the Court’s “permission” under s 102 of the Assessment Act to appeal an order made by a judge. Although the example and the note are explanatory only and not part of the Rules (see Rule 1.17), their content is consistent with the circumstance that recent amendments have tended to use the word “permission” rather than “leave” with no apparent intended change of meaning. I would therefore read “permission” to appeal in Rule 22.12(2) as meaning or including “leave” to appeal under s 102 of the Assessment Act.
In Kelly & Kelly (1980) FLC 91-007, in this Court, Fogarty J spoke of the need to show “special circumstances” to justify the exercise of the discretion to order a stay in property matters.
In K & K [2000] FamCA 356, the Full Court of the Family Court of Australia (Finn, Kay and Barlow JJ) referred at par 18 to Kelly and to Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 in relation to the principles which should be applied on an application for a stay in property matters. Their Honours said that as they were dealing with the matter ex tempore they would not “set out any more authoritatively the principles as they should apply in this Court”. At par 19 their Honours then said:
19It is sufficient to say that we should consider the issues of whether the failure to grant the stay would render the appeal nugatory or would place the appellant, should he be successful, in an irredeemable position. Another matter that should be considered is whether the appeal is bona fides and may seem to have some substance. There is then, finally, the matter of prejudice to the respondent, and in connection with that matter, there is the related matter of the balance of convenience.
See also Reichstein & Reichstein [2007] FamCA 365 per Bryant CJ at [23]-[26]; Kay J at [42]; Boland J at [43].
In Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103, McColl JA said:
18The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 [83] per Spigelman CJ (Meagher JA and Sheller JA agreeing).
19The detailed principles concerning the grant of a stay are set out in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694:
a.where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, the Court will normally exercise its discretion in favour of granting a stay;
b.the onus is upon the applicant to demonstrate a proper basis for a stay;
c.it is a matter of discretion whether the Court grants a stay and if so as to the terms which would be fair as part of the granting of a stay;
d.what is important in considering whether or not a stay ought be granted is the balance of convenience and the competing rights of the parties before it;
e.it is not necessary that special or exceptional circumstances should be made out; it is sufficient for the applicant to demonstrate a reason or an appropriate case to warrant the exercise of discretion in its favour.
20Since a stay will prevent the judgments being enforced while the appeal is pending, the Court should endeavour to preserve the status quo by protecting the judgment creditor from the risk of loss: McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383; (2002) 55 NSWLR 737 at [28]. …
Thus, since Kelly, it is firmly established that special or extraordinary circumstances need not be shown, but rather whether an appropriate case is made out to warrant the exercise of the discretion having regard to the factors which authoritatively have been stated as ones to be considered.
In some cases, whether there has been delay in bringing the application and if so its effect on the other party may be relevant (although generally this would come under the umbrella of prejudice), as may the time in which an appeal (in this case if leave to appeal be granted) may be heard and determined (being a matter relevant to the parties’ competing rights).
The cases to which I have referred deal with property matters. There is no reason to think however they do not apply also in child support departure matters, particularly where, as in this case, the father refers to his and his wife’s property interests as being involved if a stay not be granted. In child support departure matters, there is the obligation on parents to maintain their children. However that does not appear to me to give the parent who is the judgment creditor any special status, or put the matter into any special category. Rather, in my view, the same principles apply, with the same factors to be considered, that is, whether any successful appeal would be rendered nugatory or place the appellant in an irredeemable position, whether the appeal is bona fide and may appear to have some substance and the factors of prejudice and balance of convenience.
On 27 July 2007, Mr McMillan submitted that Rule 22.12 did not apply to the father’s application, and that s 140 of the Assessment Act and only s 140 of the Assessment Act applied, so that the proper test for the grant of a stay was as set out in s 140(2) of that provision, namely whether “it is desirable to do so taking into account the interests of the persons who may be affected by the outcome of the proceeding”.
On 27 July 2007, this submission, set out by Mr McMillan in written submissions, caught Ms Vachon, solicitor, for the mother, and me, by surprise and necessitated an adjournment to enable Ms Vachon to prepare an affidavit by the mother as to the effect on herself and the children if the stay be granted under that provision.
On 14 September 2007 (which was the date I was next available to continue hearing the application), I mentioned to Mr McMillan that s 140 of the Assessment Act had been repealed on 22 June 2007 (see No. 82 of 2007 which commenced on 22 June 2007) that is, before the father’s application for a stay had been filed (19 July 2007).
Reference was then made to s 111C of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) which provides:
SECTION 111C STAY ORDERS
111C(1) [When stay orders applicable] This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the SSAT under Part VIIA; or
(d) under Part 6A or 7 of the Assessment Act.
111C(2) [Parties applying for orders] A party to the proceeding may, subject to the Family Law Act 1975 :
(a) in the case of a proceeding instituted in a court - apply to that court for an order under this section; or
(b) otherwise - apply to a court having jurisdiction under this Act for an order under this section.
111C(3) [Stay even whilst proceedings pending] Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
111C(4) [Revocation of (3)] The court may, by order, vary or revoke an order made under subsection (3).
111C(5) [Restrictions on order] An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified - until a decision of the court, the Registrar or the SSAT determining the proceeding becomes final.
[italics in 111C(3) added]
Mr McMillan then submitted that s 111C applied to the application, to the exclusion of Rule 22.12.
In my view, s 111C does not apply to an application for a stay of court orders, not only because expressly it permits a stay in relation only to “the operation or implementation of the Assessment Act and this Act” (see s 111C(3)), but also because, having regard to the separation of powers doctrine, the stay of court orders in relation to a court’s own appeal process is solely a matter for a court, governed by its own Rules of Court made by the judges, in this case Rule 22.12, and the principles associated with the exercise of the discretion provided by such Rules of Court as developed in the authorities. An intent ought not be imputed to Parliament to interfere in this process where another meaning is available.
Thus, as recognised in Pratt & Pratt (1993) FLC 92-354 (although in relation to an application under the now repealed s 140 of the Assessment Act) the proper application of a provision such as s 111C in my view is to stay administrative actions or decisions by persons under the Acts mentioned, not orders of a court.
In my view, thus, a provision such as s 111C has no application when the Court is asked by a litigant to exercise a discretion to stay one of its own orders. However, as Mr McMillan argued to the contrary, and submitted expressly that the proper test solely is whether the Court considers it desirable to order a stay taking into account the interests of the persons who may be affected by the outcome of the proceeding (s 111C(3)), I will deal with this test, as if it applied, in addition to the principles to which I have referred relevant to stay applications under Rule 22.12.
It is necessary to do this, having regard to Mr McMillan’s submission, although the father’s application, in its terms, does not seek a stay against the exercise of any of the administrative powers of the Child Support Registrar or the Child Support Agency related to “the operation or implementation” of the Assessment Act or the Registration and Collection Act, for example, any administrative assessment of child support and its collection (as to which plainly s 111C of the Registration and Collection Act would apply, for example, pending the hearing and determination of an application for a departure order), but seeks solely a stay of an order of the Court pending the determination of the father’s application for leave to appeal, and if leave be granted, the appeal.
Whether the failure to grant the stay would render the appeal (or application for leave to appeal) nugatory or place the father in an irredeemable position
The father says that he has received a letter from the Child Support Agency giving notice that it intends to recover the outstanding moneys pursuant to the departure order.
He says that he does not have cash to pay the $36,500 ordered to be paid for the period 1 January 2005 to 31 December 2006, and can afford to pay only $500 per month child support, rather than the $1,500 per month ordered and the amounts (if any) payable pursuant to pars 4(c) and (d) of the order.
There is no evidence that as yet the mother has sought any payments pursuant to pars 4(c) and (d).
He says that in order to pay the $36,500 ordered he would be required to obtain a loan to be secured against the rural property, owned as joint tenants with his wife Ms K (Ms K). He says that, if his appeal should be successful, he would suffer borrowing costs and interest on the loan which costs and interest would then be thrown away.
He says that if he should be unable to borrow that sum and sufficient moneys to discharge his ongoing child support liability (to the extent of $1,000 per month being the difference between $1,500 per month ordered and $500 per month which he says he can afford to pay) then he and Ms K would have to sell the rural property. He says that they do not own any other real property and “we would surely suffer loss”.
He does not say however that he does not have the capacity to obtain a loan sufficient to discharge his liability under the departure order, does not say that Ms K is or would be unwilling to sign such documents as may be necessary to secure such a loan against the rural property and does not say (although perhaps he seeks that I infer) that he does not have the financial capacity to service such a loan.
As at the date of the hearing in July 2006, the rural property was unencumbered and had the (agreed) value of $690,000, which value I find is more than sufficient to secure a loan of $36,500, or even up to $65,000, which would be sufficient to pay the ordered child support until 30 June 2008.
In the property proceedings between the parties, the father was ordered to pay the mother $130,460. However, that too is under appeal. I recognise that, unless the father’s property appeal is successful, he would have to borrow that sum also.
There is no evidence by the father that he has attempted to obtain a loan for $36,500 or more, and has been refused it, nor that Ms K has refused to sign such documents as may be necessary to obtain a loan to satisfy the father’s obligations under the departure order.
The mother, pursuant to the property proceedings, owns a house property in Brisbane, which as at the date of the hearing in July 2006 had the value (agreed) of $525,000. It appears that this property is unencumbered.
There is no reason to think that, if the father should borrow an amount sufficient to discharge his liability under the departure order, including his ongoing liability, and then succeeded in the appeal (if leave to appeal be granted), the mother would not have the financial ability to repay to him any amount determined on appeal to have been erroneously adjudged by the departure order.
In short, if the mother could not then borrow any amount which, on appeal, she may be required to repay, secured against the Brisbane property, then she would have to sell the Brisbane property.
Thus, there is no basis to think that the father’s appeal (if leave to appeal be granted), if successful, would be rendered nugatory.
Further, I am not satisfied on the evidence that the father and Ms K would be placed in an irredeemable position by having to sell the rural property if a stay not be granted, there being no evidence that the father cannot arrange a suitable loan to be secured against the rural property, and no evidence that Ms K would refuse to consent to such a security.
If the father should borrow the amount required to discharge his obligations pursuant to the departure order, and succeed in his appeal (if leave to appeal be granted), the mother has the financial ability to repay him, even if to do so she must sell her Brisbane property.
If the appeal (if leave to appeal be granted) should be successful, and the father proves that all or some of any amount of borrowing costs and interest are thrown away, that would be capable of set off so that he not be out of pocket in relation to any amount of borrowing costs and interest so proved to have been thrown away.
I am therefore unable to conclude that to refuse the stay application would be to render the appeal nugatory or place the father in an irredeemable position.
Whether the appeal is brought bona fide and may seem to have some substance.
I have no reason to think that the father’s application for leave to appeal and his appeal (if leave to appeal be granted) are not brought by him bona fide, in that plainly the father and/or those advising him are of the view that I have erred in the exercise of my discretion in making the departure order.
The grounds of appeal appear to me to have no substance. However, plainly that is a matter now for the Full Court to adjudicate, and fundamentally it would be wrong for me to make any detailed observation on the matter.
Prejudice and hardship
The father says that his taxable income for the year ended 30 June 2006 was $45,000; and that presently his income from S Pty Ltd (S Pty Ltd) (referred to in detail in the reasons for judgment, pars 49-61) is $81,900, about $1,575 gross per week.
The affidavit of Mr B, the father’s and S Pty Ltd’s accountant, filed on 14 September 2007, provides that the father received only $3,750 gross per month, $2,953 net per month after tax, between 1 October 2006 and 30 June 2007, and that a similar amount of income has been paid to the father by S Pty Ltd for the months of July and August 2007. On these figures, the father’s current annual income net of tax is about $35,436.
However, correspondence from Ms Vachon, the mother’s solicitor, to Mr McMillan, the father’s solicitor, sought specific financial information in relation to S Pty Ltd’s earnings and the father’s earnings, which was not provided despite opportunity. Ms Vachon’s correspondence specifically sought information as to a contract S Pty Ltd has won a contract in respect of new bridge at Brisbane, the contract being referred to in the father’s affidavit, but without detail as to the contract fees to be earned by S Pty Ltd. See annexures C, D, E and F to the mother’s affidavit (annexed to Ms Vachon’s affidavit filed on 12 September 2007). The only responses from the father’s solicitor (annexures D and F) questioned the relevance of the information sought, and Mr B’s affidavit did not provide it.
The father’s position is that he will suffer prejudice, hardship and loss if the stay is not granted because his income only allows him to pay $500 per month (about $125 per week) towards the costs of both children’s support, that is, about $62.50 per week per child.
The mother’s affidavit is self speaking as to financial hardship she and the children have suffered and are suffering by the father’s refusal to acknowledge his obligation to pay proper child support for the children, as to which I would refer to pars 10-19 of the mother’s affidavit, without paraphrase:
10.[K] required orthodontic work. We recently had our first visit to an orthodontist and I was advised that the estimated costs was $3,700.00. I would have to pay half of this amount up front and pay the rest off. I have already advised [K] that it is likely that I can’t afford to have the work done at this time.
11.Both [K] & [A] have to attend a podiatrist on an average of every 4 weeks at a cost of $55.00 for a standard consultation each. Both girls will need to wear orthotics all of their lives. I presently have to buy a new pair of orthotics each year for each of the girls. I estimate that the costs would be around $340.00 per new pair, not taking into account the actual consultation costs. Both girls are now wearing splints at night to stop their first stage bunions. Even with private health cover, I only get $400.00 back each year for each child. Wearing orthotics means that the shoes that the girls now need to wear are more expensive i.e. [K]’s new school shoes $110.00, sandshoes $195.00 and [A]’s sandshoes $100.00. [A] is now doing exercises to help her growth motor skills. She has trouble balancing. I believe that she will need further work in this area.
12.[A] is due to visit the ophthalmologist again shortly to have her eyes checked. I would expect that she will need new glasses and the doctor will have a further discussion with me on whether to operate on [A]’s eye or not.
13.I am hopeful that all of the larger schooling expenses have been paid for this year. I do believe that the Applicant has booked his daughter into pre-school at [a] Private School in Brisbane for which the fees are $9,000.00 per annum. Annexed hereto and marked with the letter “A” is a copy of an email which I sent to the Applicant on 1st November 2006 requesting assistance for back to school expenses. I did not receive a reply nor any financial assistance.
14.I have had to spend money on house repairs. The back steps fell down and I had to pay $480.00 to have them fixed. The gutters leak water into the house when it rains and this has rotted the woodwork downstairs. I have obtained a quote of $2,500.00 to have the gutters fixed. I have no idea of the costs associated with the internal woodwork damage. I have to get a tradesman [to] cut down the trees in the yard to destroy the roots which have infiltrated the drainage. I have obtained a quote of $580.00.
15.I consider that my children are being severely disadvantaged by their father’s refusal to pay the child support of $1,500.00 every 4 weeks as was ordered by this Court.
16.I have significant legal fees outstanding with respect to these proceedings. I will have to borrow funds providing my home as security in order to pay those legal fees. I also have credit card debts of $8,000.00 outstanding.
17.I estimate that the costs of schooling and clothing for both girls amount to approximately $10,000.00 per annum. The children also attend music lessons and have private tuition in addition to their education. I find that I am not able to provide the girls with all of the amenities of life that they should receive, because I do not have sufficient funds to do so and I do not receive proper child support from their father.
18.Annexed hereto and marked with the letter “B” is a copy of a printout from the [G] College setting out extra expenses for [K] over a 9 month period of $1,228.40. These expense include a music tour, deportment classes and various school activities in which [K] must be involved. [A] also has similar expenses.
19.If the Applicant father is granted a stay in these proceedings, the children will be substantially affected. If I find it necessary to borrow against my home, I will incur additional interest costs even if at the end of the day the Applicant father is unsuccessful in his appeal. In that event both of the children and I would be adversely affected if the stay was granted.
See also annexures A and B to the mother’s affidavit, as to the reality and extent of child support costs for the children.
The mother is earning modest income, $948 per week after tax, whereas expenses for herself and the children amount to more than $1,300 per week, so that the mother presently has a considerable weekly shortfall in her ability to pay for the children’s basic needs. She has modest savings, kept for emergencies.
In contrast, as S Pty Ltd is a private company owned and operated by the father and Ms K, the father undoubtedly has the ability to cause more of S Pty Ltd’s income to be applied to support the children, if he were so minded, rather than to apply S Pty Ltd’s income in a manner to avoid his obligation to support them, preferring to support his cattle at the rural property rather than his children. Further (according to the mother’s affidavit, par 13 above), he has arranged for his new child to be educated at a private school in Brisbane even for pre-school at $9,000 per year (a matter not challenged in evidence by the father, although he did say that S Pty Ltd’s Bridge contract expires in December 2007, which conceivably may result in a move back to the rural property).
It is not appropriate, when considering hardship, that a father should put the support of his cattle above the support of his children; and should prefer indulging a new child, with no demonstrated special needs, to the support of his existing older children with demonstrated special needs (as fully described in the reasons for judgment and the mother’s affidavit in the paragraphs referred to above).
The father’s and Mr B’s silence as to relevant financial matters as to which information specifically was sought by Ms Vachon; the father’s ability to control the income and the disposition of income of S Pty Ltd (referred to in the reasons for judgment, pars 55-61); the mother’s own modest income, applied as set out in her affidavit; and her present inability to command and apply lucrative income earned through a corporate vehicle (a benefit which the father took out of the parties’ marriage, which I determined in the property proceedings) because of her dedication to the children, when the father rarely sees the children, for whom the mother is solely responsible in the practical sense (mother’s affidavit, par 2); leave me in no doubt that the hardship factor weighs heavily in the mother’s favour.
Not only is the mother without adequate income to provide for the children, but she is, in a practical sense, solely responsible for them, as evidenced by her affidavit, par 2:
2.…The Applicant has not attempted to spend any time with the children for the last 2½ years and he does not telephone them. The children are my sole responsibility.
The father’s claim to hardship, in light of the mother’s and the children’s circumstances, is difficult to comprehend, especially as the effect of the departure order which I made is that the mother (on modest income) be responsible for $16,172 for the children in each year and the father (on potentially lucrative income, via S Pty Ltd), only $19,500 in each year, plus the appropriate percentage proportions of additional medical, dental and optical costs as specified in pars 4(c) and (d) of the departure order.
In all of the circumstances, even if the father will suffer hardship if the stay not be granted, as he claims, the hardship presently being suffered by the mother and the children is of no less weight, and indeed appears to me to be of greater weight, because of its nature and severity.
There is no prejudice claimed by either party other than as dealt with already.
Balance of convenience
I would refer to my conclusions that to refuse the stay would not render the appeal nugatory nor place the father in an irredeemable position; and that the aspect of hardship to the mother and the children if a stay should be granted in my view outweighs any hardship which may be suffered by the father if the stay should be refused; with the effect that the balance of convenience favours the mother.
Delay
I have referred above to the father’s delay in bringing the application for a stay.
However, there is no evidence that the father’s delay in bringing the application has impacted on the mother or the children.
Rather, it is the father’s refusal to comply with the departure order which has had adverse impact on the mother and the children.
The time in which it may be expected the appeal (if leave to appeal be granted) will be heard and determined
The time in which the Full Court may be able to deal with the matter is not known to me and was not the subject of evidence.
Conclusion – discretion under Rule 22.12
Having regard to the matters which I am obliged to consider, I am unable to conclude that the case is one in which it is appropriate to warrant the exercise of the discretion under Rule 22.12 to grant a stay.
Subject therefore to my consideration of the matters relevant under s 111C of the Registration and Collection Act, in case that provision should be found to be relevant, I would propose to refuse the application.
Section 111C of the Registration and Collection Act
The test under s 111C(3) is whether it is considered desirable to grant a stay, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
I would refer to my analysis above as to the interests of the father, Ms K, the mother and the children as persons who may be affected by the outcome of the proceeding. There is no evidence that the interests of the father and Ms K’s new child may be affected by the outcome of the proceeding, although indirectly that may be so.
In light of the analysis above of the interests of the persons referred to, I do not consider that it would be desirable to grant a stay. In this regard I would refer to and rely on the analysis above of the interests of those persons, without unnecessary repetition.
Order
The application will be dismissed.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Reilly
Associate
Date: 1 November 2007
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