ME & SKE
[2006] FMCAfam 211
•11 May 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ME & SKE | [2006] FMCAfam 211 |
| CHILD SUPPORT – Application to vary child support agreement – application for leave to bring spousal maintenance proceedings out of time – applications dismissed. |
| Family Law Act 1975 Child Support (Assessment) Act 1989 |
| Gilmour and Gilmour (1995) FLC 92-591 Liu & Chen [2003] FMCAfam 322 Gyselman and Gyselman (1992) FLC 92-279 Liesert v Nutsch (1996) FLC 92-665 Bryant (1996) FLC 92-690 Wild v Ballard (1997) FLC 92-771 Clauson (1995) FLC 92-595 Whitford v Whitford (1979) FLC 90-612 Jacenko (1986) FLC 91-776 Kercher (1981) 7 FLR 216 Althaus (1982) FLC 91-233 |
| Applicant: | ME |
| Respondent: | SKE |
| File Number: | NCM 716 of 2004 |
| Judgment of: | Ryan FM |
| Hearing date: | 12 April 2006 |
| Date of Last Submission: | 13 April 2006 |
| Delivered at: | Parramatta |
| Delivered on: | 11 May 2006 |
REPRESENTATION
| Solicitors for the Applicant: | The applicant appeared on his own account |
| Counsel for the Respondent: | Mr Wilkinson |
| Solicitors for the Respondent: |
ORDERS
The applicant father’s child support departure application is dismissed.
The respondent mother’s application for leave pursuant to section 44(3) of the Family Law Act 1975 to bring proceedings in relation to spousal maintenance is dismissed.
All exhibits tendered in these proceedings shall be returned at the expiration of one (1) calendar month unless an appeal is lodged.
The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.
Subject to any application for costs, all outstanding applications are dismissed.
If either party seeks costs, they must list the matter by arrangement with my Associate within twenty-one (21) days.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT Parramatta |
NCM 716 of 2004
| ME |
Applicant
And
| SKE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by ME (“the father”) for a discharge of a child support agreement made with SKE (“the mother”) in March 2004. These proceedings were commenced when the father filed his application on 7 October 2005 at the Newcastle registry of the Federal Magistrates Court. In addition to a discharge of the child support agreement, the father in his application also sought credit for various non-agency payments he claimed to have made to or on behalf of the mother.
The mother filed her response on 16 January 2006. In it she sought that the father’s application be dismissed, and that proceedings be transferred to the Parramatta registry of the Federal Magistrates Court. The mother also sought an order for leave to bring a spousal maintenance application out of time. If granted leave the mother seeks $250 per week indefinitely.
The change of venue issue was heard by Federal Magistrate Scarlett on 9 February 2006. The mother’s application was successful, and the matter transferred to Parramatta.
The hearing
At the commencement of the hearing, the father indicated that he would not be pursuing his application in relation to credit for non agency payments. Whilst he opined that the conduct of the parties’ was indicative of an agreement between them, he conceded that he was unable to provide the court with any additional evidence of such an agreement, and in such circumstances his application must fail. Subsequently, any affidavit material which addressed this issue became irrelevant. Relevantly, the father addressed no questions to the mother about this issue. This is significant, because after I reserved my decision, on 13 April 2006 the father delivered written submissions in which he claimed these payments amounted to special circumstances. I will return to this issue later.
The father relied upon the following evidence in relation to his application:
·His application filed 7 October 2005;
·His affidavit filed 7 October 2005 and his oral testimony;
·His updated financial statement filed 1 April 2006;
·His financial statement filed 7 October 2005;
·His affidavit filed 2 February 2006;
·His supplementary affidavit filed 1 April 2006;
The mother relied upon the following evidence:
·Her amended response filed 16 January 2006;
·Her financial statement filed 16 January 2006;
·Her affidavit filed 3 February 2006;
·Her affidavit filed 7 April 2006.
Short history
The father was born in 1953 and is 52 years old.
The mother was born in 1955 and is 50 years old.
The parties married and commenced cohabitation in January 1976. At the time of marriage the father was 23 and the mother 21.
The parties’ eldest son Michael (not his real name) was born in 1980.Blake (not his real name), the parties’ second child, was born in 1983. At the time of hearing Michael and Blake were aged 25 and 22 respectively, and not the subject of any operative child support agreement.
Felix (not his real name), the parties’ third and youngest child, was born in 1990.
The parties separated on 14 October 2002. Following separation Felix remained living with the mother, having regular contact with the father on most weekends. The father’s affidavit includes a detailed history of the child’s living arrangements, which history is summarised in a letter dated 19 September 2005[1] written to the mother. Although the mother challenged the father’s history vis Felix’s post separation living arrangements, on this issue I prefer the father’s evidence. Obviously he is a meticulous record keeper on these matters and his evidence on this issue is far more precise than the mother’s broad brush approach. Thus I am satisfied that since separation Felix resided with the father:
·Between 14/10/2002 and 30/6/2003 for 103 nights;
·Between 1/7/2003 and 30/6/2004 for 162 nights;
·Between 1/7/2004 and 30/6/2005 for 134 nights; and
·Between 1/7/2005 and 18/9/2005 for 32 nights.
[1] Annexure U father’s affidavit sworn 5 October 2005
Upon separation the father asserts he paid $1,108.42 per month child support for Felix.
On 28 October 2002 the Child Support Agency (CSA) assessed the father as liable to pay $1,405.58 per month[2] child support. This money was paid into the father’s bank account, which the mother claims she was often unable to access.
[2] Exhibit A
In around April 2003 the mother applied to the CSA for them to collect the child support on her behalf.
In June 2003 the mother met PP. The father alleges the mother and PP reside in a defacto relationship, an allegation she denies. I accept her evidence PP lives in Gosford and that on average they spend five nights each fortnight together. The mother and PP do not intermingle their finances and PP has no obligation to support the mother. Indeed there is nothing which suggests he has any capacity to do so.
On 4 February 2004, the CSA wrote to the father, informing him that his child support liability was $560.67 per month.
On 12 March 2004, the CSA issued a reassessment for the period 3
April 2003 to 24 January 2004[3] which increased the father’s monthly liability to $1,108.42.
[3] Annexure G father’s affidavit sworn 5 October 2005
On 16 March 2004 the father applied for a divorce. That day the parties were due to attend a child support review conference. With their lawyers assistance the parties agreed on future child support and property issues and the conference did not proceed.
On 17 March 2004 consent final property orders were made. The consent orders noted that the parties’ had entered into a child support agreement. The relevant notation is as follows:
B. By agreement between the parties the Husband will pay to the Wife directly child support for the 2003/2004 and the 2004/2005 tax years at the rate of $1600.00 per month to commence from 1 July 2003. Thereafter child support shall be determined in accordance with the above formula.
The child support agreement was made on 26 March 2004. A copy of the agreement is attached[4] to the father’s affidavit. Simply put, the agreement requires the father to pay the mother $1600 per month periodic child support from 1 July 2003 until the agreement ends on 30 June 2006.
[4] Annexure J
On 4 May 2004 the divorce was granted, becoming Absolute on 5 June 2004.
The mother commenced working for NLPS on 24 February 2005.
On 21 March 2005 the CSA accepted registration[5] of the child support agreement.
[5] Annexure K father’s affidavit sworn 5 October 2005
On 2 April 2005 the father married LME.
The father and LME purchased a property together on 16 August 2005.
On 1 August 2005 the mother resigned from NLPS. At her employers request she continued to work until 7 September 2005. Since then the mother has not had paid work.
In around September / October 2005 an agreement was reached between Felix and the parties that Felix would reside with the father on a week about basis. The effect of this agreement is to increase the days Felix spends with his father from 162 to 182 annually.
On 4 October 2005 the father contacted the child support agency in relation to his payments in light of the existing care arrangement for Felix. He was informed that he would need to continue making payments of $1600 per month.
On 3 March 2006 the CSA issued a child support payer transaction statement for the period 1/1/2002 to 3/3/2006[6]. This statement accurately details the parties child support transactions throughout the period. It reveals that aspects of the mother’s evidence concerning the parties child support dealings are wrong. For example, she asserted there was five months during which the father failed to pay any child support. This was incorrect and is another example of the unreliability of the mother’s evidence. Where there is a conflict between the parties evidence, I am satisfied the father’s evidence is to be preferred.
[6] Annexure C father’s affidavit sworn 31 March 2006
Relevant law – child support application
The obligation to pay child support is created by the provisions of the Child Support (Assessment) Act 1989. Section 3 contains the obligation that parents maintain their children. The objects of the Act are found in section 4. Each of the objects needs to be borne in mind when deciding an application under the Act. Section 4(3) of the Act recognises the desirability of parents reaching agreement for the financial support of their children. When interpreting the Act, the section requires that “the Act should be construed, to the greatest extent consistent with the attainment of its objects:
To permit parents to make private arrangements for the financial support of their children; and
To limit interferences with the privacy of persons.”
Sections 114 and 121 identify that the further objects of Divisions 4 and 5 of Part 7 include:
“That children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents, and
That parents share equitably in the support of their children.”
Thus, the Act includes provisions that provide a scheme for the implementation of consent arrangements. Part 6, Division 3 contains the provisions that relate to applications to the Child Support Registrar for acceptance of a Child Support Agreement executed in accordance with the terms of Divisions 1 and 2 of the Part. The Registrar must make a decision to accept or refuse to accept the agreement (Section 92). Once accepted, the liability to pay child support arises where child support was not already payable pursuant to an administrative assessment. Provisions contained in the Child Support Agreement for periodic payments have effect, for the purposes of Part 5, as if they were an order made by consent by a court under Division 4 of Part 7 (Section 95(2)).
An application to vary a child support agreement must be determined in accordance with the provisions of s 117 of the Act. In Gilmour and Gilmour (1995) FLC 92-591 the Full Court considered the principles applicable to a variation or discharge of a previous departure order made under the Child Support (Assessment) Act1989. The court was asked to consider, whether or not, by virtue of s 100 of the Child Support (Assessment) Act1989, s 66N(2) of the Family Law Act 1975 was imported into the Child Support (Assessment) Act 1989 and therefore required an applicant seeking to change a departure order to demonstrate that there had been a change in circumstances. The Full Court held, “Whatever might be the purpose or effect of s.100 of the Assessment Act, we do not consider that it can operate to apply the principles of provisions of the Family Law Act 1975 into a division of the Assessment Act in which those principles have not been given express legislative statement in circumstances where such principles are given express legislative statement in the immediately succeeding division”. The very existence of a threshold requirement in Division 5 of Part 7 (Section 129(3)) compared to its absence under Division 4 demonstrated an express legislative intention to impose a threshold requirement in Division 5, but not Division 4. In other words, the Full Court concluded that it was not a precondition to a successful application under the Child Support (Assessment) Act 1989 to establish that there had been a change in circumstances.
In Liu & Chen [2003] FMCAfam 322 Chief Federal Magistrate Bryant (as she then was) concluded, “Conversely, it seems to me a change in circumstances alone would not necessarily therefore be sufficient to provide a ground on which an agreement may be varied or discharged”. As Gilmour makes clear the approach to such an application is that set out in Gyselman and Gyselman (1992) FLC 92-279. The Full Court in Gyselman set out a three step process that courts must follow in determining an application for a departure order under s 117. The first step whether one or more of the grounds in s 117 are established. If so, the next step is whether it is just and equitable within the meaning of s 117(4) to make a particular order. The final consideration is whether it is otherwise proper within the meaning of s 117(5) to make a particular order.
Later Full Court decisions have confirmed the approach in Gilmour. It is further discussed in Liesert v Nutsch (1996) FLC 92-665, Bryant (1996) FLC 92-690 and Wild v Ballard (1997) FLC 92-771. Each of these cases concerned variation of a child support agreement. In the understatement of the century, in Bryant the Full Court said, “While s.117(2) might well have been more clearly drafted, nevertheless we are satisfied that the expression “The provisions of this Act relating to the administrative assessment of child support” in the subsection must include not only an administrative assessment made by the registrar of the Child Support Agency under Part 5 of the Assessment Act, but also the periodic payment provisions in a child support agreement which has been accepted by the registrar under Part 6 of the Assessment Act, and also any order of a court made under Part 7 for departure from an administrative assessment”. Further on, “It must, however, be recognised that once an order has been made departing from an administrative assessment, before there can be a variation of (or “departure” from) that existing order, it must be established to the court’s satisfaction, that since the making of the existing order circumstances have arisen as a result of which the financial capacity of either party is now significantly reduced s.117(2)(a), or the costs of maintaining the child have been affected s.117(2)(b) or the existing order now results in an unjust and inequitable determination of child support s.117(2)(c). There is nothing Gilmour to suggest to the contrary”. As their Honours explained if it were otherwise, “There would be nothing to stop a party who did not accept the terms of a departure order from immediately approaching the court to have the matter re-heard, or to stop a party who thought better of the agreement, which he or she had made, immediately seeking to vary the agreement”.
In Wild v Ballard the Full Court stated, after referring to Bryant’s case, “The requirements of s.117 as explained in Bryant obliged His Honour, when dealing with the husband’s application, for the reduction in his obligation to pay periodic child support, to determine firstly whether by reason of a change of circumstance, a ground for departure existed, and then required His Honour to determine whether it would be just and equitable and otherwise proper to make an order departing from the existing assessment”.
Special circumstances of the case – has the father shown a ground for departure?
The father’s application is based upon s.117(2)(a)(iii) and in the alternative s.117(2)(c)(ii). The father’s claims are essentially three fold; that there are special circumstances of the case which mean the father’s capacity to pay child support has been significantly reduced by his need to support both himself and his new partner, and also, that the level of child support he currently pays is both unjust and inequitable in light of payments which he has made to the mother for the benefit of the child. Finally, that the mother’s circumstances have improved by reason of an alleged defacto relationship with PP.
In order to determine whether the father has established a ground for departure it is necessary to examine the parties’ circumstances at the time the agreement was made. A claim for child support that is heard at the same time as an application for property adjustment adds an extra step to the process. The sequence of determining the applications is important and the property application must be determined before the other claims are considered. This is to ensure that the terms of any order made in the property claim are considered in spouse maintenance and child support applications. See Clauson (1995) FLC 92-595. The parties reached an agreement in relation to child support at the time their consent orders for property were also made. At the time both parties’ were represented, and it is reasonable to infer that the property settlement included consideration of the ramifications of the child support agreement and vice versa. For this reason the circumstances of the parties’ should be considered at the point following this agreement in March 2004, and not before.
The father’s circumstances
There is little evidence before me as to the father’s financial circumstances at the time of the March 2004 agreement. If he made financial disclosure to the court by filing a financial statement, he did not rely on that document in these proceedings. The earliest financial statement I have available to me was filed on 7 October 2005. I cannot infer that this document addresses the father’s financial circumstances in March 2004. Clearly it relates to his circumstances as at the time of filing. By way of property settlement the father retained sole ownership and possession of his legal practice (worth $19,517) and all related assets and accounts, as well as all such things in relation to the ME Family Trust. Aside from other items of property that may have been in his possession at the time, he retained little else. In a letter dated 3 March 2004[7] the father’s solicitor summarise the effect of the consent orders as giving the mother 85.73% of the parties total assets. With a nett asset pool of $259,315.25 the mother received assets worth $222,298.25 and the father received assets worth $37,017. Each parties entitlement included $17,500 in superannuation. By letter dated 9 March 2004[8], the mother’s solicitor inferentially adopts the father’s analysis of the property agreement. Thus at the time the father entered into the child support agreement he had assets worth $37,07 comprising $17,500 superannuation and his practice worth $19,517.
I have no evidence concerning the father’s income or his expenses at this time. I infer he was living in rented accommodation, the cost of which is not disclosed.
[7] Annexure A father’s affidavit filed 31 January 2006
[8] Annexure A father’s affidavit filed 31 March 2006
As he was then, the father is currently working as a solicitor in his own private practice. He earns an average weekly income of $2,650. The father’s income is solely earned from his legal practice. As to his expenditure, the father accounts for a total of $2,868 weekly; this is made up of mortgage repayments ($396), life insurance ($22), health insurance ($56), car payments ($183), credit card payment ($402) and his child support ($400). The additional $379 goes towards the day to day living expenses of the father, his new wife, and Felix. He has assets to the value of $243,000 and also superannuation worth $25,000. His liabilities are $199,000.
On these figures the father’s weekly expenditure exceeds his income by $218. Comparing his two financial statements, one sees that between October 2005 and April 2006 the father leased a 2004 Mercedes Benz, took out private family health insurance and started paying $400 each week to American Express. For reasons not disclosed, presently the father’s wife does not have paid work, and it is from his income alone that their household expenditure must be met. When the father incurred these expenses he was aware of his child support obligations. With respect to him, I do not accept these expenses are reasonably necessary compared to his child support obligations. Accordingly these expenses will not form part of my assessment of the father’s reasonable expenses. On this basis I am satisfied the father is able to meet his necessary expenses. He has not provided the court with evidence that he is unable to continue meeting his current obligations under the child support agreement.
When comparing the father’s financial statements of October 2005 and April 2006, it can be seen that in even a short amount of time the father’s financial position has improved. From $201,562, the total value of his property has risen to $243,000. Certainly his liabilities are documented as having increased by $39,000 however this still leaves him with an overall nett improvement of $2,500 in six months.
The father relies on his obligation to support LME and now Felix seven days each fortnight. He gives no evidence about how these obligations have affected his financial circumstances. Basically I am asked to infer that his day to day expenses have increased. While I accept supporting an additional adult involves additional expenses I am not persuaded that meeting Felix’s costs for an additional twenty days each year materially affects the father’s average weekly expenses. The critical difficulty the father faces is his failure to put any evidence before the court concerning his income and expenses at the time he entered the child support agreement. In this case his failure to do so is fatal to that part of his application reliant on his changed circumstances. Put simply, it is plain that during the intervening period his overall asset position has improved. As to his income, expenses and financial resources there is no evidence of any deterioration in his circumstances.
The mother’s circumstances
As a result of the property agreement, the mother received a substantial portion of a modest asset pool. Most significantly, the father transferred to her his interest in the former matrimonial home. The home was worth about $300,000 and subject to a $130,000 mortgage with Westpac Bank. The home is now worth $350,000 and is the mother’s most significant asset. The mother sold IAG shares worth $2,798 and her other assets comprise $1500 in savings and a motor vehicle worth approximately $2,000. The mother also indicates she has approximately $20,000 in a business interest, although she does not indicate what that business may be. Essentially her assets total $373,500 and her liabilities $145,000.
In her financial statement, the mother says that she receives an income of $430 per week. This is made up of $250 parenting payment, $40 family tax benefit and $140 from boarders. Mischievously the mother denies receiving child support and was forced to concede she actually receives $400 each week. By s.117(7)(ii) I must disregard her parenting payment and family tax benefit. This means the mother’s weekly income is $540 including child support. When working for NLPS the mother earned between $660 and $996 nett per fortnight. Usually she earned in the vicinity of about $800 per fortnight. The mother says she stopped working because she was stressed by legal issues with the father, her former solicitors, a forensic accountant and Centrelink. Added to this, she understood she was personally liable for any injury her charges may suffer whilst in her care at work. As to the later I find this suggestion surprising and do not accept her evidence. While in some circumstances the mother may be held liable for her actions, as an employee her employer will usually carry responsibility and thus liability. I do not accept the mother’s decision to give up paid work was reasonable and am satisfied she has an earning capacity of at least $400 per week. The mother’s evidence concerning her inability to pursue employment was unpersuasive. Thus I proceed on the basis the mother’s total weekly income, including child support and her earning capacity is in the vicinity of $940.
The mother claims $725 average weekly expenses, which includes $382 for Felix. In addition she pays $280 mortgage, $30 rates, $26 insurance, $5 car registration and $20 credit cards. Her total weekly expenses are $1,086 and thus exceed her income by about $146. This shortfall could be met by increasing the board she charges from $70 to $120 each week for each boarder and slightly moderating her weekly outgoings. It seems to me $70 per boarder is probably considerably less than market rate. One needs only examine weekly newspaper notices to appreciate this is so. Thus on balance, for as long as the father pays $400 each week child support the mother is able to meet her reasonable and necessary expenses. However even if she was unable to do so, the mother cannot use child support as a back door method for receiving spousal maintenance. When the child support agreement was executed the mother was attending TAFE where she was retraining to re-enter the paid workforce. Other than working in the father’s legal practice the mother had not had paid work for about 15 years. Thus I infer she was totally reliant on Centrelink benefits and child support. I accept the mother’s evidence she and PP live separately and that his financial circumstances are irrelevant to this hearing. The effect of this is that since the agreement was executed there has been a modest improvement in the mother’s income and assets. However, as this improvement merely enables the mother to barely meet her necessary and reasonable expenses, it does not establish a ground for departure.
The real difficulty in this case lies with the father. In order for there to be a departure from the current agreement, he must establish that his present financial situation and commitments have left his capacity to meet his child support obligations significantly reduced. Whilst there is no dispute that his current commitments are substantial, he has failed to establish that his situation is any more parlous then it was in March 2004. Thus, to the extent the application is based on s.117(2)(b)(iii) it fails.
I must also consider the fathers s.117(2)(c)(ii) claim. It is his assertion that there are special circumstances in the case which render the current child support agreement unjust and inequitable. The Full Court in Gyselman discussed the words ‘in the special circumstances” and said; “Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases. It has been held that the special circumstances were facts peculiar to the particular case which set it apart from other cases. The approach to the interpretation and application of the particular grounds in section 117(2) must be guided by that qualification”. Essentially it is the father’s argument that he has made an extraordinary amount of payments to the mother, for the benefit of the child, since the time of separation, and these should be taken into account, amounting to special circumstances.
As I have previously mentioned, the father originally sought credit for non agency payments, in relation to money he had given to or on behalf of the mother since separation. When the hearing began, he agreed that this would no longer be pursued. As was expected, the issue of extra payments then took a backseat, and was only raised again following the hearing when, apparently without notice to the mother, the father faxed further written submissions for my consideration.
As the issue of these payments was not canvassed at hearing, above and beyond the issue of credit for non agency payments, it would be improper to now allow the father the benefit of these payments in relation to an entirely separate issue. However, even if I accept additional payments were made to the extent the father alleges, I do not agree these amounts to special circumstances. The amounts were not used to acquire capital and did no more than enable the mother to meet her necessary expenses at a time when she was unable to do so.
I regard the father’s modest additional payments paid at an earlier time as irrelevant to his application for departure in a later period.
The final argument pursued by the father relates to his assertion that the care arrangement for Felix has changed significantly, in that Felix now spends seven days per fortnight with his father, instead of only five. Essentially then, this means Felix will now spend 182 nights per year with his father, instead of 162. In reality, without evidence this has resulted in a significant increase in his expenses, an increase of only twenty nights with the father is too small an increase to justify a change in the current child support arrangement.
The effect of these findings is that the father has failed to establish a ground for departure.
Is it just and equitable or otherwise proper to make a departure order?
As the father has failed to establish a ground for departure it is not necessary that I consider ss.117(4) or (5). For abundant caution however, if I were wrong in deciding against special circumstances, it should be said that on the facts before me, I would also be disinclined to find that it is just and equitable to order a departure. The father voluntarily entered into the child support agreement about which he now complains. He was legally represented, and is a solicitor himself, and should therefore have been aware of the possible ramifications arising from the agreement. He was working towards Felix living in a shared care arrangement and was acutely aware of his child support obligations when he married, leased a Mercedes Benz and purchased his house. Notwithstanding these changes there is no evidence that the father is financially worse off then he was when the parties’ reached the agreement. Nor is there evidence that the mother’s circumstances have substantially improved.
Thus the child support application will be dismissed.
The mother’s section 44(3) application
The mother’s application for spousal maintenance is out of time by virtue of s.44(3) Family Law Act 1975, which reads:
Where, whether before or after the commencement of section 21 of the Family Law Amendment Act 1983:
(a) a divorce order has taken effect; or
(b) a decree of nullity of marriage has been made;
proceedings of the kind referred to in paragraph (c), (caa), (ca) or (cb) of the definition of matrimonial cause in subsection 4(1) (not being proceedings under section 78 or 79A or proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) shall not be instituted, except by leave of the court in which the proceedings are to be instituted or with the consent of both of the parties to the marriage, after the expiration of 12 months after:
(c) in a case referred to in paragraph (a) – the date on which the divorce order took effect; or
(d) in a case referred to in paragraph (b) – the date of the making of the decree.
In Whitford v. Whitford (1979) FLC 90-612, the Full Court of the Family Court said:
“On an application for leave under s44(3), two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or a child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter. If the Court is so satisfied, the second question arises. That is whether in the exercise of its discretion the Court should grant or refuse leave to institute proceedings”.
Hardship to the applicant or a child of the parties is thus an essential pre-condition of the exercise of discretion. The nature of hardship is also discussed in Whitford. It is a comparative concept that is concerned with the consequences of the loss of the right to litigate the claim. An applicant must demonstrate that they have a reasonable claim to be heard. See Jacenko (1986) FLC 91-776. Otherwise the applicant carries the onus of additionally explaining the delay in bringing the application. The absence of an adequate explanation, despite what was said by the Full Court in Kercher (1981) 7 FLR 216, is no more than a factor to be considered in the circumstances of the case. See Althaus (1982) FLC 91-233. It alone is not determinative of the application.
Finally, if all the above elements point to leave being given the court must balance the hardship to the respondent with the applicant’s hardship. Hardship to the respondent can result includes that the respondent has ordered his or her financial affairs assuming that no s.79 claim was to be commenced. This list is not exhaustive. By s.44(4) in relation to maintenance proceedings, the court shall not grant leave unless “at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit.” A decision to grant or refuse leave is, in the end, discretionary.
The mother’s entitlement to bring a spousal maintenance application as of right expired on 5 June 2005. Her application for leave thus seeks a seven months indulgence. The mother contends that her delay in seeking spousal maintenance is a result of her being unaware until recently that she may be entitled to it. With respect to the mother, she was legally represented at the time consent orders were made, and I find it difficult to accept that she would not have been advised on all the appropriate options available to her in relation to the s.79 application, and subsequent agreement. However, the father failed to challenge this evidence and I am unable to positively conclude the mother was actually aware of the time limit. In any event in accordance with Althaus, the inadequacy of the mother’s explanation for her relatively modest delay cannot alone be determinative.
I have already made findings concerning the parties income, earning capacity, assets, liabilities and financial resources. I am satisfied that in early June 2005 and continuing up until this hearing, the mother has been able to meet her reasonable and necessary expenses. Her decision to give up paid work was foolish and cannot be relied upon to demonstrate she needs her former husband’s financial support. The timing of the mother’s leave application is interesting and seems to be a direct repose to the father’s child support application. If this is in fact the situation, the mother may find some comfort in the fact that the father’s departure application has been dismissed.
There is nothing in the mother’s evidence which establishes that she or Felix will suffer hardship if her leave application is refused. Essentially this is because the mother failed to demonstrate that she can meet the s.72 threshold entitlement for spouse maintenance. After the period within which the mother was able to bring a spouse maintenance application as of right expired the father purchased a home and leased a motor vehicle. With his expenses and income now so closely aligned, it would cause him considerable hardship to be called upon to pay spouse maintenance. Comparably the hardship to the father exceeds any to which the mother makes reference.
At the end of the period within which the proceedings could have been instituted without the leave of the court, the mother was receiving an income tested pension and thus s.44(4)(ii) applies. When calculating the mother’s circumstances, as required I disregarded her parenting and family tax benefit payments. Although tight, with her remaining income the mother was able to support herself. Even if she established she was then unable to support herself, I would have exercised my discretion against giving leave. This is because the mother received the lions share of the parties assets and failed to bring her application before the father purchased a home. In all of the circumstances I am satisfied that giving the mother leave would be unjust and an inappropriate exercise of my discretion.
For these reasons I make the orders identified at the start of this judgment.
I certify that the preceding sixty-four (64) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: S.Mashman
Date: 11 May 2006
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