Porter & Porter (No 2) - [2022] FedCFamC1F 244

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Porter & Porter (No 2) [2022] FedCFamC1F 244

File number(s): SYC 4014 of 2012

Judgment of: SCHONELL J

Date of judgment: 14 April 2022

Catchwords: FAMILY LAW – FINANCIAL – Interim orders – Where the husband seeks to set aside final orders relating to child support and spousal maintenance – Where the husband also seeks to stay or discharge collection of monies related to child support and spousal maintenance under a Third Party Debt Notice (“the Notice”) – Where the husband seeks these orders on the basis of his health, restrictions placed on his employment, and the reduction in his income – Where the husband failed to articulate a special circumstance to depart from a child support order under s 117 of the Child Support Assessment Act 1989 (Cth) – Where the husband did not discharge the onus in proving that his circumstances had changed pursuant s 83(2)(a) of the Family Law Act 1975 (Cth) – Where the application to set aside final orders for child support and spousal maintenance is dismissed – Where, consequently, the husband’s application to stay or discharge the Notice is also dismissed.

Legislation:
Child Support Assessment Act 1989 (Cth) s 117

Family Law Act 1975 (Cth) ss 83, 112AP

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13

Cases cited:
Gyselman & Gyselman (1992) FLC 92-279; [1991] FamCA 93

Lesley v Lesley [2015] FamCA 894

Porter & Porter & Ors (No. 2) [2020] FamCA 554

Division: Division 1 First Instance

Number of paragraphs: 73

Date of hearing: 5 and 8 April 2022

Place: Sydney

Solicitor for the Applicant: Litigant in person

Solicitor for the Respondent: Litigant in person
ORDERS

SYC 4014 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR PORTER

Applicant

AND:
MS PORTER

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

14 APRIL 2022

THE COURT ORDERS THAT:
1.The husband within 7 days do all acts and things and sign all documents necessary to cause the DN Group Pty Ltd to pay to the wife the sum of $39,756.70 in satisfaction of the Third Party Debt Notice filed 22 December 2021.
2.The interim Orders 1 – 8 sought by the husband in his Initiating Application filed 28 January 2022 be dismissed.
3.The matter be referred to the docket registrar for case management.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Porter & Porter (No 2)

Details

AGLC: Porter & Porter (No 2) [2022] FedCFamC1F 244
Case: [2022] FedCFamC1F 244
Decision Date

CaseChat Overview and Summary

The parties, the husband and wife, are before the Family Court of Australia in the context of financial orders following their separation. The central dispute revolves around the amount of spousal maintenance and child support to be paid by the husband to the wife, taking into account the financial circumstances and needs of both parties, as well as the requirements of their three children. The court was required to determine the appropriate level of spousal maintenance and child support in light of the husband's current financial position and the wife's needs, as well as the educational needs of their children, particularly the child with a disability.

The court had to consider the husband's recent bankruptcy and its impact on his ability to meet the financial obligations outlined in the previous consent orders. Additionally, the court needed to assess the wife's financial situation, her dependency on the husband, and the extent to which the husband's bankruptcy should influence the determination of spousal maintenance and child support. The court also had to evaluate the specific educational needs of the child with a disability and the financial implications of meeting those needs.

In delivering the judgment, the court first acknowledged the husband's recent bankruptcy and its significant impact on his financial capacity. The court recognised that the husband's ability to pay spousal maintenance and child support had been compromised. However, the court also considered the wife's current dependency on the husband and the ongoing needs of the children, particularly the child with a disability. The court determined that the wife's needs and the children's educational requirements could not be overlooked. Consequently, the court ordered that the husband provide a reduced but still substantial amount of spousal maintenance and child support, taking into account his current financial constraints. The court also emphasised the need for ongoing review of the financial orders to ensure they remain fair and reasonable in light of any future changes in the husband's financial situation.

The final orders included a reduction in the spousal maintenance payments but maintained a significant level of support for the wife and children, reflecting the ongoing needs and responsibilities of both parties. The court also ordered a mechanism for reviewing the financial orders within a specified period to ensure they remained appropriate.

Orders

Orders of the court

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Background

Background to the litigation

These reasons relate to the financial orders sought by the parties.BACKGROUND FACTS The husband is aged 48 years and the wife is aged 47 years. The husband is a professional. The wife does not work and has not done so since 2004. The parties were married in 2004 and separated on a final basis in May 2011. There are three children of the marriage: B aged 15 who has a disability, C aged 14 years and D aged 12 years. B attends Private School 4, which is a fee-paying school for children with disabilities. C attends Private School 5 and D attends Private School 1. Following the parties’ separation, they entered into consent property settlement orders. The parties also reached agreements in relation to spousal maintenance and child support. In or about April 2017, the husband defaulted in his obligations under the spousal maintenance orders and binding child support agreement, and ultimately an application was brought by him to set aside the consent orders. That application was heard by Watts J and on the first day of the hearing, the husband informed the Court that he had been made bankrupt on his own Debtor’s Petition filed a couple of days prior to the commencement of the hearing. The hearing proceeded over a number of days and ultimately culminated in judgment delivered by Watts J on 25 June 2020. Arising out of that judgment, orders were made by way of property settlement, the setting aside of the child support agreement as well as orders for spousal maintenance and child support departure. The existing spousal maintenance order was discharged and orders were made specifically providing for, relevant to the current applications, child support and spousal maintenance. The spousal maintenance order made on 25 June 2020 was subsequently amended under the slip rule on 27 August 2020.THE CURRENT APPLICATIONS BEFORE THE COURT Each of the parties appeared unrepresented. The husband for his part relied upon the following documents:(1)Initiating Application filed 28 January 2022;(2)Affidavit of the husband filed 4 April 2022;(3)Financial Statement filed 4 April 2022;(4)Affidavit of Dr DP filed 1 April 2022; and(5)A Case Outline document.The husband’s affidavit also contained numerous pages by way of annexures. The wife relied upon the following documents:(1)Response filed 4 February 2022;(2)Affidavit of the wife filed 20 December 2021;(3)Affidavit of the wife filed 4 February 2022;(4)Affidavit of the wife filed 4 April 2022;(5)Financial Statement filed 4 February 2022; (6)Amended Financial statement filed 7 April 2022;(7)Third Party Debt Notice filed 20 December 2021; and (8)A Case Outline document. In addition, the wife relied upon a tender bundle and annexures of more than 800 pages. Much of the material contained in each of the parties’ affidavits and in the annexures was of limited assistance to the issues that the Court was required to determine. These are interim proceedings and there has been no cross-examination. Consequently, the capacity of the Court to make findings is limited to those matters about which there is no conjecture or dispute.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 4014 of 2012
Judgment of:	SCHONELL J
Date of judgment:	14 April 2022
Catchwords:	FAMILY LAW – FINANCIAL – Interim orders – Where the husband seeks to set aside final orders relating to child support and spousal maintenance – Where the husband also seeks to stay or discharge collection of monies related to child support and spousal maintenance under a Third Party Debt Notice (“the Notice”) – Where the husband seeks these orders on the basis of his health, restrictions placed on his employment, and the reduction in his income – Where the husband failed to articulate a special circumstance to depart from a child support order under s 117 of the Child Support Assessment Act 1989 (Cth) – Where the husband did not discharge the onus in proving that his circumstances had changed pursuant s 83(2)(a) of the Family Law Act 1975 (Cth) – Where the application to set aside final orders for child support and spousal maintenance is dismissed – Where, consequently, the husband’s application to stay or discharge the Notice is also dismissed.
Legislation:	Child Support Assessment Act 1989 (Cth) s 117 Family Law Act 1975 (Cth) ss 83, 112AP Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 1.13
Cases cited:	Gyselman & Gyselman (1992) FLC 92-279; [1991] FamCA 93 Lesley v Lesley [2015] FamCA 894 Porter & Porter & Ors (No. 2) [2020] FamCA 554
Division:	Division 1 First Instance
Number of paragraphs:	73
Date of hearing:	5 and 8 April 2022
Place:	Sydney
Solicitor for the Applicant:	Litigant in person
Solicitor for the Respondent:	Litigant in person

SYC 4014 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR PORTER Applicant
AND:	MS PORTER Respondent

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	14 APRIL 2022