Quayle & Perceval

Case [2018] FamCA 664

FAMILY COURT OF AUSTRALIA

QUAYLE & PERCEVAL [2018] FamCA 664
FAMILY LAW – PROPERTY – Where an interim property distribution is sought – Where spousal maintenance is sought – Where a departure from a Child Support Assessment is sought – Where adult child maintenance is sought –Where a dollar for dollar order is sought – Where the husband applied to reopen his case on the basis that he sought to adduce new evidence regarding his income and liabilities – Where the wife opposed that application – Where both parties were granted leave to adduce further evidence – Where neither party has complied with their obligation of disclosure – Where the husband earns a large salary – Where the husband has a large outstanding income tax debt – Where the wife has always been the primary carer for the parties’ children – Where the parties’ asset pool is small relative to their income – Where the Court declined to make orders for a departure from the Child Support Assessment on the grounds that there were no special circumstances – Orders made for $12,000 to be released to the wife to repay credit card liabilities – Dollar for dollar orders made pursuant to injunctive power of the Court – Orders for spousal maintenance made – Child support orders pursuant to s 124 of the Act made by consent.
Family Law Act 1975 (Cth) ss. 21, 34, 74, 79, 83, 114, 117
Child Support (Assessment) Act 1989 (Cth) ss. 116, 117, 124
Family Law Rules 2004 rr. 1.04, 4.15, 4.23, 13.01, 13.04, 19.05, 19.34
Acton & Burton [2015] FamCA 469
Atkins & Hunt And Ors (2018) 57 Fam LR 128
Bagala & Bagala  (2009) FLC 98-043
Beck and Sliwka (1992) FLC 92-296
Breen v Breen (1990) 65 ALJR 195
Briese and Briese (1986) FLC 91-713
Cachia v Hanes (1994) 179 CLR 403
Child Support Registrar & Nixon (2007) 36 Fam LR
Duff and Duff (1977) FLC 90-217
English & English(1986) FLC 91-729
Esdale & Schenk (2012) 46 Fam LR 547
F & F (1989) FLC 92-031
Fitzgerald v Fish and Anor (2005) 33 Fam LR 123
Graf-Salzmann and Graf [2015] FCWA 68
Hamod v State of New South Wales and Anor [2011] NSWCA 375
Harris and Harris (1993) FLC 92-378
Hogan & Hogan (1986) 10 Fam LR 681
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd[1983] 3 NSWLR 378
In the marriage of Farr (1976) FLC 90-133
In the marriage of Gyselman (1992) FLC 92-279
Jeeves & Jeeves (No 2) [2008] FamCA 1148
Jones v Skinner (1835) 5 LJ Ch 87
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531
Liatos & Liatos and Anor [2008] FamCAFC 111
Livesey and Jenkins (1985) 1 All ER 106
Luadaka & Luadaka (1998) FLC 92-830
Medlow & Medlow (2016) FLC 93-692
Mertens & Mertens [2016] FamCAFC 136
New Zealand Flax Investments Limited v Federal Commissioner of Taxation (1938) 61 CLR 179
R v Watson; Ex parte Armstrong

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Quayle & Perceval [2018] FamCA 664
Case
[2018] FamCA 664
Decision Date

CaseChat Overview and Summary

In *Quayle & Perceval*, heard by McClelland J, the parties brought before the Court applications concerning property distribution, spousal maintenance, and child support. The wife sought a partial property distribution of $12,000 to discharge a credit card debt. The husband was ordered to pay periodic spousal maintenance and to maintain the wife's private health insurance. The parties also consented to orders regarding child support for their two children, encompassing school fees, uniforms, extracurricular activities, health insurance, and tutoring. The wife's application for adult child maintenance was dismissed, with liberty to apply granted.

The Court was required to determine the appropriate orders for partial property distribution, spousal maintenance, and child support, considering the parties' financial circumstances and their obligations of disclosure. A key issue was the impact of the parties' failure to comply with their disclosure obligations on the Court's consideration of their respective claims. The Court also had to assess whether the circumstances warranted an order for partial property settlement prior to a final hearing, applying the principles outlined in *Strahan & Strahan*.

McClelland J applied the principles for determining applications for partial property settlement orders, which involve a procedural step to assess whether the Court's power under s 80(1)(h) of the *Family Law Act 1975* (Cth) is triggered, with the overarching consideration being the interests of justice. The substantive step then involves applying the provisions of s 79 of the Act, albeit with limitations as it is not a final hearing. The Court noted that a failure to make full and frank disclosure can lead to a robust view being taken regarding a party's financial position. The orders made reflect a partial resolution of the financial matters between the parties, with specific provisions for property distribution, spousal maintenance, and comprehensive child support arrangements.

Orders

Orders of the court

THE COURT ORDERS, PENDING FURTHER ORDER, THAT:

Partial property distribution

1.

Within 14 days of the date of the making of these orders, the husband pay or cause to be paid to the wife, by way of partial property distribution, the sum of $12,000 from the parties’ ANZ Bank Equity Manager Account (BSB …; Account Number #53).

Spousal maintenance

2.

By way of periodic spouse maintenance, pursuant to s 74 of the Family Law Act 1975 (Cth), the husband shall pay to the wife cleared funds in the sum of $2,216 per week.

3.

The husband shall pay, as and when same fall due and payable, all policy premiums to ensure that the wife remains listed on and covered by, at the present level, the family private health insurance scheme on which she is currently listed.

Section 114 order

4.

Within seven (7) days of any future payment by or on behalf of the husband of any money in payment of accounts rendered by his solicitors, including in relation to expenses associated with the preparation of his case, the husband pay or cause to be paid the same sum of money to the wife’s solicitors.

5.

Within 24 hours of the payment by or on behalf of the husband of any money referred to in order 4 above, the husband cause a memorandum stating the amount/s so paid to his solicitors to be forwarded to the wife’s solicitors.

6.

The husband shall instruct his solicitors that any money paid to the husband’s solicitors, including on his behalf pursuant to order 4 above, shall be held in trust by the husband’s solicitors and not applied in payment to the husband's solicitors until such time as the same amount is paid by or on behalf of the husband to the wife’s solicitors.

7.

The wife shall instruct her solicitors that any money paid to the wife’s solicitors by or on behalf of the husband, pursuant to order 4 above, is to be applied by the wife’s solicitors in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.

Child support

8.

By consent, pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), the husband pay the following for each child, X, born … 2003 and Y, born … 2003:

(a) All private school tuition fees and levies for each child at B School or such other private school as agreed between the parties, including all school excursion fees and levies shown on school accounts and other mandatory expenses associated with the children's attendance;

(b) All school uniforms, sporting equipment, extracurricular activities for each of the children and all other mandatory equipment/uniforms for the children's attendance at such school;

(c) All instalments at the present scale to the C Private Health Fund, including cover for private hospital, optical, physiotherapy, dental and orthodontic expenses in respect of the children and in addition, any medical, dental, hospital or orthodontic expenses incurred in respect of either of the children not recoverable from Medicare or the C Private Health Fund; and

(d) Tutor’s fees in the sum of $80 per week, to be paid directly to the tutor by the husband.

9.

The wife’s application pursuant to s 117 of the Child Support (Assessment) Act 1989 (Cth) is dismissed.

Adult Child Maintenance

10.

The parties be granted liberty to apply in respect to the issue of adult child maintenance, upon the giving of 48 hours’ written notice to the Court and the other party.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Clause 6 of Part 1 of Schedule 1 of the Rules relevantly provides that:(6) At all stages during the pre-action negotiations and, if a case is started, during the conduct of the case itself, the parties must have regard to:…(i) the duty to make full and frank disclosure of all material facts, documents and other information relevant to the dispute. Note: The duty of disclosure extends to the requirement to disclose any significant changes (see clause 4 of this Part). [Emphasis added]. The fact that the obligation of disclosure exists as a duty to the Court, as well as the other party, is significant. It is also significant that the obligation is in respect to the disclosure of “information relevant to the dispute”, not simply one that attaches to the production of documents. There are specific obligations of disclosure in cases involving applications for spousal maintenance. Rule 4.15 provides:Evidence to be provided(1) On the first court date and the hearing date of an Application for spousal or de facto maintenance, each party must bring to the court the following documents:(a) a copy of the party’s taxation returns for the 3 most recent financial years;(b) the party’s taxation assessments for the 3 most recent financial years;(c) the party’s bank records for the period of 3 years ending on the date on which the application was filed;(d) if the party receives wages or salary payments—the party’s payslips for the past 12 months;(e) if the party owns or controls a business, either as sole trader, partnership or a company—the business activity statements and the financial statements (including profit and loss statements and balance sheets) for the 3 most recent financial years of the business; and(f) any other document relevant to determining the income, needs and financial resources of the party. It is also significant that the obligation of disclosure includes an obligation to disclose “any disposal of property” that may “affect, defeat or deplete a claim”: Rule 13.04(1)(g). As noted by Walters J in Graf-Salzmann and Graf [2015] FCWA 68 at 287:… a judge is entitled to take a "robust view" in relation to findings regarding a party's financial position (including party's capacity to meet any proposed order) where that party has failed to make full and frank disclosure of his/her financial position: see Chang v Su (2002) FLC 93-117 at [71] and [72]. As I will discuss below, both parties have failed to comply with their obligations of disclosure. That has impacted upon my consideration of their respective contentions. The wife seeks a partial property distribution to her in the sum of $12,000 in order to discharge a credit card debt in that amount. In Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 (“Strahan”) at 85,645 to 85,646, the Full Court set out the two stages for determining an application for partial property settlement orders. The first stage is a “procedural step”, which requires an analysis of whether the circumstances of the case trigger the Court’s power to invoke s 80(1)(h) of the Act to make an order for partial property settlement before a final hearing. At this stage, the “overarching consideration” is the interests of justice. The second stage is the “substantive step”, where the provisions of s 79 of the Act must be considered and applied, but with limitations, given that it is not the final hearing.

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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