Rankin and Rankin (No 2)
[2019] FamCAFC 74
•3 May 2019
FAMILY COURT OF AUSTRALIA
| RANKIN & RANKIN (NO. 2) | [2019] FamCAFC 74 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the primary judge made a departure order varying the husband’s payment of child support assessed under the Child Support (Assessment) Act 1989 (Cth) – Where leave to appeal is required under s 102 of the Child Support (Assessment) Act 1989 (Cth) – Where two of the five grounds of appeal were abandoned at the commencement of the appeal – Where the husband contended that the primary judge misapplied the objectives of the Child Support (Assessment) Act 1989 (Cth) by failing to apportion any liability for the children’s support to the wife – Where the Full Court considers the primary judge’s orders prioritising the husband’s payment of child support over his outstanding legal fees were not unjust or inequitable – Where the primary judge correctly applied the criteria prescribed by ss 117(4) and 117(5) of the Child Support (Assessment) Act 1989 (Cth) – Where the primary judge gave adequate reasons for applying the criteria under ss 117(4) and 117(5) of the Child Support (Assessment) Act 1989 (Cth) – Where the appeal lacks merit – Application for leave to appeal dismissed. |
| Child Support (Assessment) Act 1989 (Cth) ss 3(1), 4(2)(b), 99(1), 102, 116(1), 117(1)(b), 117(2), 117(4), 117(5) Family Law Act 1975 (Cth) |
| Eames & Eames (2018) FLC 93-866; [2018] FamCAFC 204 Gyselman and Gyselman (1992) FLC 92-279; [1991] FamCA 93 House v The King (1936) 55 CLR 499; [1936] HCA 40 Lindsey & Christie [2016] FamCAFC 132 Lokare & Baum [2016] FamCAFC 135 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 |
| APPELLANT: | Mr Rankin |
| RESPONDENT: | Ms Rankin |
| FILE NUMBER: | DGC | 2859 | of | 2013 |
| APPEAL NUMBER: | SOA | 33 | of | 2018 |
| DATE DELIVERED: | 3 May 2019 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland, Kent & Austin JJ |
| HEARING DATE: | 28 March 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 April 2018 |
| LOWER COURT MNC: | [2018] FamCA 268 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Devries |
| SOLICITOR FOR THE APPELLANT: | Manby and Scott, Child Support Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Schmidt |
| SOLICITOR FOR THE RESPONDENT: | Tisher Liner FC Law |
Orders
The application for leave to appeal is dismissed.
Costs are reserved and shall be determined in chambers on the basis of written submissions, for which purpose:
(a)The respondent shall file and serve written submissions within 21 days setting out the nature of and reasons for her application for costs;
(b)The applicant shall file and serve written submissions within 14 days thereafter setting out his response to the respondent’s application and the reasons for his position; and
(c)The respondent shall file and serve any written submissions in reply to the applicant’s submissions within 14 days thereafter.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rankin & Rankin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 33 of 2018
File Number: DGC 2859 of 2013
| Mr Rankin |
Appellant
And
| Ms Rankin |
Respondent
REASONS FOR JUDGMENT
The husband seeks leave to appeal and, if granted, appeals from orders made on 27 April 2018 by a judge of the Family Court of Australia varying the rate of child support he must pay to the wife in respect of their three children, which orders represented departure from the administrative assessment of child support under Part 7 Division 4 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
The wife resisted leave being granted to the husband and, if granted, opposed the appeal.
For the reasons which follow, the application for leave to appeal should be dismissed.
Background
In February 2016, orders were made between the parties to conclude both their financial disputes under Part VIII of the Family Law Act 1975 (Cth) (“the Act”) and their child support disputes under the Assessment Act.
The husband appealed those orders, but that appeal only succeeded in respect of the spousal maintenance orders and the orders made under the Assessment Act in consequence of which, in March 2017, the Full Court set aside those particular orders and the parties’ respective applications were remitted for re-hearing.
The remitted applications were re-heard on fresh evidence in October 2017 and determined by orders made on 27 April 2018.
At the time of the re-hearing, the husband was bound by an administrative assessment of child support in the total sum of $909.63 per week, though the Child Support Registrar required his payment of the higher amount of $1,145.00 per week in order to reduce the child support arrears of $39,693.26.
The wife sought that the primary judge make departure orders fixing the husband’s child support income at $245,000 per annum, or alternatively, varying the rate of child support to $400 per week per child (being $1,200 per week), from 1 January 2016 until each child attained their majority.
Conversely, the husband sought that the primary judge make departure orders varying the rate of child support to $150 per week per child (being $450 per week), subject to CPI index increases, from 1 January 2016 until each child attained their majority.
Additional applications were entertained but, because they resulted in other orders which are irrelevant to the appeal, there is no need to mention them.
The appealed orders made by the primary judge granted the wife’s application (Order 1) and dismissed the husband’s application (Order 2), though the child support departure order was not made retrospectively to 1 January 2016, or any other date, as had been sought. The orders had only prospective application, with the first payment under the departure order falling due seven days thereafter. Subject to the grant of leave, the husband appealed against Orders 1 and 2.
Leave to appeal
The appeal cannot be brought without the grant of leave pursuant to s 102 of the Assessment Act.
The test for the grant of such leave is, ordinarily, whether the decision of the Court below is attended by sufficient doubt to warrant it being reconsidered and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (see Eames & Eames (2018) FLC 93-866 at [80]-[82]; Medlow & Medlow (2016) FLC 93-692 at [55]-[57]; Lindsey & Christie [2016] FamCAFC 132 at [39]). But the test is only a guideline; the discretion cannot be fettered.
Necessarily, the strength of the proposed appeal influences the grant or denial of leave to appeal. In this instance, the husband regarded the issues as inseparable. In support of his application for leave to appeal, his written Amended Summary of Argument referred extensively to the submissions advanced to vindicate the appeal. He asserted the grant of leave was irresistible because his proposed appeal was so strong. We turn, therefore, to explain why that is not so.
Grounds of appeal
The appeal filed on 25 May 2018 was deemed abandoned, but was re-instated by Strickland J on 19 November 2018. Having amended his appeal twice, the husband eventually moved on his Further Amended Notice of Appeal filed on 21 February 2019.
At the commencement of the appeal, the husband abandoned Grounds 3 and 4.2. The remaining grounds of appeal were prolix, so they are summarised rather than recited in full.
Ground 1
This ground of appeal incorporates several complaints: first, that the primary judge failed to heed the objects of the Assessment Act and, in particular, that the level of financial support that parents must provide for their children should be determined in accordance with the costs of the children (s 4(2)(b)); secondly, that the primary judge failed to apportion any liability for the costs of the children to the wife and thereby breached several imperatives of the Assessment Act (ss 3(1), 117(2)(c)(ia), 117(2)(c)(ib), and 117(4)(a)); and finally, that the primary judge conflated the husband’s obligations to pay spousal maintenance and child support.
Before considering the arguments advanced by the husband, it is useful to appreciate the legislative construct within which the appealed orders were made. The circumstances in which departure orders may be made are meticulous, numerous and conjunctive. Subject to the existence of jurisdiction (ss 99(1) and 116(1) of the Assessment Act), which was not in dispute in this case, the conditions about which the Court must be satisfied before a departure order is made are prescribed under s 117 of the Assessment Act. Those conditions were analysed in Gyselman and Gyselman (1992) FLC 92-279 (“Gyselman”) at 79,064, 79,078, which seminal authority has been endorsed repeatedly. The primary judge was required to first determine whether one or more grounds for departure from the administrative assessment existed (s 117(2)) and, if so, then consider whether it was just and equitable to make a departure order (s 117(4)) and whether it was otherwise proper to do so (s 117(5)). Only if all those criteria were fulfilled could a departure order have been validly made.
The statutory recognition of the duty which falls upon parents to maintain their children (s 3) and the objects of the Assessment Act to ensure children receive proper financial support from their parents (s 4) provide the context within which the remainder of the Assessment Act is interpreted. In particular, those provisions aid the interpretation of Part 7 Division 4 of the Assessment Act dealing with departure orders, but they do no more. They do not work to change the ordinary meaning of the provisions found within Part 7 Division 4 (see Lokare & Baum [2016] FamCAFC 135 at [74] - [81]).
The specific sub-sections of s 117 of the Assessment Act which were the focus of the husband’s complaint under this ground of appeal were those concerned with whether the level of financial support for the children, as administratively assessed, would be unjust and inequitable on account of the income, earning capacity, property and financial resources of the parents (ss 117(2)(c)(ia), 117(2)(c)(ib)) and the pertinence of the duty borne by both parents to maintain their children in deciding whether it would be just and equitable to make a departure order (ss 3, 117(4)(a)). It was contended the primary judge failed to apply those provisions, with the consequence being that the wife escaped any liability at all to contribute to the children’s financial support, but the contention tends to misapply the legislation.
Section 117(2) of the Assessment Act is concerned with whether grounds for a departure order exist. Sub-sections 117(2)(c)(ia) and 117(2)(c)(ib) are only used to determine whether, in the special circumstances of the case, the income, earning capacity, property or financial resources of the parents render any administrative assessment of child support unjust and inequitable, such as to justify a departure order being made. The factors prescribed by s 117(2) of the Assessment Act are not used to craft the terms of the departure order actually made. That work is done, in part, by ss 117(4)(d), 117(4)(da) and 117(4)(e) of the Assessment Act, which similarly focus attention on the income, earning capacity, property and financial resources of the parties.
Obviously enough, the question of whether the primary judge failed to heed or apply the various provisions of the Assessment Act (including those referred to by the husband) depends upon the facts found by the primary judge and how those findings were synthesised with the legislation.
Relevantly, several salient findings of fact were made by the primary judge, none of which were challenged by the husband in the appeal as being incorrect. Those findings included:
(a)The cost of maintaining the children was $673 per week, which sum was exclusive of “rent and charitable donations of food” (at [144]);
(b)The cost of rent and food for the wife and the children was being subsidised by charity (at [40], [41], [147]);
(c)The wife actually incurred subsidised rent of $328 per week, but her unchallenged evidence was that the market rent for comparable accommodation in her area was not less than $800 per week (at [181], [182]);
(d)The wife had no income from paid work (at [152]) and, aside from charity, she received only welfare and child support of $593 per week (at [146]);
(e)The wife’s income-earning capacity was restricted by her child caring responsibilities (at [152]) and her lack of recognised qualifications (at [46]-[48]);
(f)From the parties’ property settlement, the wife would receive a net amount of $147,396, together with superannuation of $266,744 (at [52], [148]);
(g)The financial needs of the wife and the children, which were at “bare subsistence” level, were reasonable (at [40], [128], [147], [182]) and were not challenged by the husband during the trial (at [127], [147]);
(h)The husband’s weekly income was $3,219 (at [130], [144]), which is less than one-half of what it once was (at [130]), but the reduction was due to him being unwell and his income was commensurate with his current earning capacity (at [140]-[142]);
(i)The husband’s weekly expenses were $2,629, which includes payment of the current administratively assessed child support, child support arrears, and his repayments of a tax liability, so his weekly surplus of income over expenses is $590 (at [125], [134]-[135], [150]);
(j)The wife did not challenge the husband’s expenses during the trial (at [127], [136]), which were reasonable (at [128]); and
(k)The husband’s liabilities, the existence and value of which were not challenged by the wife at trial and which exceed the value of his assets, needed to be taken into account (at [23], [120], [136], [150]-[151]).
In large measure, this ground of appeal hinged upon the husband’s contention that, in the face of a finding that it cost $673 per week to maintain the children, the primary judge fell into error by ordering that he pay a total of $1,200 per week to maintain them.
As is evident from the factual findings recited above, the primary judge did not find it cost only $673 per week to maintain the children, so the ground was posited on a false premise. Proper allowances for the additional cost of the children’s accommodation and food had to be made. While there was a dearth of evidence to enable such costs to be quantified with mathematical precision, the extra sum of $527 per week ($1,200 – $673 = $527) the primary judge allowed to cover an additional amount for the food the three children would eat and their notional share of the subsidised rent, let alone market rent, was unexceptional. The husband certainly did not demonstrate in the appeal that it was an unreasonable allowance, not inferentially open on the available evidence. It should be remembered the administrative assessment of the husband’s child support liability then stood at $909.63 per week, which sum must have been the baseline cost needed to properly maintain the children under the statutory formula, so the sum of $1,200 per week represented an extra $290 per week.
At trial, the husband did not challenge the reasonableness of the cost of maintaining the children. He was only intent on driving down his proportional share of the cost, since his opposing application was for departure orders quantifying his liability for child support at $450 per week, which was less than one-half of the administrative assessment.
As part of the discretionary process, s 117(4) of the Assessment Act obliged the primary judge to consider how the proper cost of maintaining the children could be equitably shared, given the parties’ respective income, expenses, property and financial resources.
The wife had no income at all and probably no chance of earning income in the foreseeable future. Although the husband was equivocal about the wife’s lack of earning capacity at the trial, in the appeal he did not contest the correctness of the primary judge’s finding she had no income-earning capacity. As for capital, the wife had net assets of $147,396, which was a relatively meagre sum for the future, given the children’s ages and the many years she is short of retirement. She also had some superannuation, but she was unable to use it to meet her commitments.
By comparison, the husband had current annual income of $167,388, despite only working about 25 hours per week (at [130]), various debts which exceeded the value of his assets, and more than twice the amount of superannuation of the wife, though he could not access his superannuation to meet his commitments either.
In making orders that effectively imposed the entire financial burden of maintaining the children upon the husband, the primary judge expressly took into account the disparity of the parties’ income and the commitments necessary to maintain themselves (at [144]), the husband’s tendency to prioritise discretionary spending over the payment of child support (at [112], [145], [151]), the husband’s failure to roll-out the wife’s superannuation interest from the superannuation fund controlled by him pursuant to the past property settlement orders (at [148]), the husband’s “unavoidable” liabilities in the form of child support arrears and tax (at [149], [150]), the husband’s proven capacity to pay the existing administratively assessed child support (at [153]), and the husband’s admitted capacity to pay an extra $290 per week over and above the administrative assessment (at [157]).
Those reasons reflect the mandatory considerations set out within ss 117(2) and 117(4) of the Assessment Act, including those to which the husband referred in this ground of appeal. It must follow that his assertions that the primary judge “failed to apply” the statutory provisions which required consideration of the parties’ income, earning capacity, property, and financial resources are incorrect. The primary judge did apply those provisions, but reached conclusions which were inconsistent with the husband’s submissions.
The husband’s residual complaint of the primary judge conflating his obligations to pay child support and spousal maintenance is not substantiated. Having determined the husband’s liability for child support, the primary judge then gave independent consideration to and dismissed the wife’s separate application for spousal maintenance (at [166]-[188]). The husband’s imputation that the primary judge made a departure order to effectively provide the wife with spousal maintenance must be rejected.
Ground 1 should fail.
Ground 2
This ground was styled as a statement of the husband’s perception that, given some uncontested factual findings, the primary judge’s orders represented an inequitable outcome. As the wife correctly observed, so styled, the ground was not competent since it did not correlate to any ground of appeal recognised by House v The King (1936) 55 CLR 499 at 504-505. Nonetheless, we will address the complaint implied within the ground of appeal and endeavour to explain why it is mistaken.
In essence, the husband considered the departure order was unjust and inequitable in circumstances where it was found he had surplus income of $590 per week which could be applied towards increased child support, because he still needed the surplus to discharge his liability for child support arrears, a tax debt, credit card debt, and unpaid legal fees.
In all, consonantly with the husband’s evidence, his aggregated liabilities were found to be $281,611 (at [136]), which debt outstripped the value of his assets.
No error was evident from the primary judge’s disregard of the husband’s credit card debt. That debt, which currently stood at $7,683 (at [136]), was regularly paid by the company he controlled (at [64]) rather than from his own income.
The child support arrears of $39,693.26 (at [21], [136], [158]) were being repaid at the rate of $235.37 per week (at [21], [54], [132], [153]), which repayments were factored into the husband’s weekly expenses of $2,629 (at [135], [159]).
The tax debt of $34,235 (at [136]) was, according to the husband, being repaid at the rate of about $322 per week (at [125]), but an exhibit showed the repayments were really only $103.75 per week (at [134]), which repayments were also factored into his weekly expenses of $2,629 (at [135], [150]).
Therefore, in quantifying the husband’s weekly surplus of income over expenses at $590, his continuing repayment of the child support arrears and tax liabilities were accounted for. However, the payment of his unpaid legal fees was not.
Underlying the husband’s complaint in this ground of appeal was the primary judge’s decision to treat his liability for legal fees differently from and less importantly than his liability for other debts, such as the child support arrears and tax liabilities, which debts were described as “unavoidable” (at [150]). However, the husband’s complaint overlooked how he too treated his liability for legal fees differently from his other personal debts. He conceded he caused his company to pay his personal legal fees in 2016 and 2017 (at [71], [151), for which a tax deduction was claimed, implying his willingness to treat legal fees as a corporate expense rather than a personal liability. By comparison, the company could not pay his intrinsically personal debts in the form of child support or tax. In addition, although the husband maintained his personal liability to pay the legal fees, he did not depose in his Financial Statement to making any current repayments in diminution of them, though he conversely deposed to his repayment of child support arrears and his tax debt. If the husband ostensibly treated his liability for legal fees differently from his other debts, his complaint about the primary judge also doing so loses some force.
The husband’s unpaid legal fees of about $200,000 relate to past litigation against the wife (at [23], [136]). She, too, had legal fees of about $150,000 to pay from her share of the property settlement, which would leave her with net assets of $147,396 (at [52], [148]).
The husband’s assets include his equity in a company he controls, the value of which he estimated at $48,493 (at [136]) but which was instead found to be worth $119,889 (at [151]). Otherwise he had miscellaneous chattels worth about $44,757 and superannuation worth $580,312 (at [136]). Thus, he had insufficient capital to which he could resort to pay the outstanding legal fees.
The departure orders were made on the basis that the husband had enough surplus weekly income to meet a higher level of child support than was administratively assessed. However, he contended that his resort to the surplus income would deprive him of any material capacity to pay his outstanding legal fees since his payment of the weekly child support amount ordered by the primary judge would cut his surplus weekly income from $590 to about $300 per week, being an insufficient amount to pay the legal fees within any reasonable time frame and leaving him with too small a margin for contingencies. He considered that the orders made by the primary judge necessarily implied he may not be able to pay his legal fees when under compulsion to do so, in default of which he might be sued and bankrupted.
The husband’s counsel submitted at trial:
… It leaves him no capacity to pay his outstanding legal fees at all and it leaves him no capacity to build himself up or to acquire any sort of assets whatsoever …
(Transcript 19 October 2017, p.51 lines 41 – 43)
Even though the husband contended in the appeal that the primary judge erred by making departure orders which would preclude his payment of the legal fees, his submissions to the primary judge about how his legal liability for that debt could be treated were quite different. At trial he emphasised the element of discretion in how that debt should be treated. The husband’s counsel submitted:
The legal expenses are something he has claimed a deduction for, but, of course, there’s a discretionary nature in relation to those…
(Transcript 19 October 2017, p.42 lines 28 – 29)
… So, your Honour, you have the power to take into account my client’s obligations to pay the debts that he as at the present time and it is something that you should take into account. However, of course, you are – it’s a – as – as the court says, it’s a matter of judgment and degree in the individual case, so you have a – a degree of – I – I would – I would describe that – I think what they’re saying is a degree of discretion as to how you treat it, so I don’t think there’s any question that you should consider and must consider the – the liabilities that my client has at the present time, including the unchallenged $200,000 in outstanding legal fees. The argument is about how it’s treated, not whether it should be taken into account.
(Transcript 19 October 2017, p.50 lines 34 – 43)
(Emphasis added)
In response to the husband’s assertion at trial about the importance of his financial capacity to pay his outstanding legal fees, the wife’s counsel poignantly said in final submissions:
… Even on [the husband]’s best case financial statement, he’s earning 150,000 a year but, in order to get to where she’s going, [the husband]’s children have to live off food stamps so that he can pay his lawyers.
(Transcript 19 October 2017, p.58 lines 25 – 28)
Hence, it was plainly the wife’s case that the husband’s obligation to financially support his children should take priority over the need to pay his legal fees, which argument the primary judge recognised (at [117]).
Self-evidently, if the burden of meeting the cost of properly maintaining the children fell so heavily on the husband that it precluded or impeded his capacity to pay his legal debt, in the proper exercise of discretion, the primary judge then had to balance the competing priorities of his obligations to maintain his children and to repay third party creditors. As already demonstrated, the primary judge gave priority to the husband’s outstanding liabilities to pay child support arrears and his tax debt, which were described as “unavoidable”, but not to the payment of his legal fees.
On the facts found in reliance upon the husband’s own evidence, in the absence of any departure orders, he would have surplus weekly income of $590 to pay his outstanding legal fees, whereas, when bound by the departure order, he has surplus weekly income of $300 available to pay the legal fees. Given the legal fees were quantified at $200,000, the difference was not so significant. In either case, he only has a relatively modest amount of surplus weekly income to meet a large debt. He might just as easily have been sued and bankrupted had the departure order not been made.
The sad reality for the husband was that his capital and income was probably insufficient to enable him to both pay all of his legal fees and properly maintain the children. In those circumstances, the primary judge’s decision to make orders which prioritised his obligation to pay a proper level of child support over his obligation to pay fees to his lawyers, which fees in part pertained to litigation against the wife contesting his child support liability, was not demonstrably unsound. The departure order was not unjust or inequitable on that count.
Ground 2 should fail.
Ground 4.1
The husband contended the primary judge failed to give adequate reasons to explain why the departure order was “just and equitable” and “otherwise proper”.
Reverting to the Gyselman analysis of the legislation, the primary judge had to initially decide whether any grounds existed for departure from the administrative assessment of child support (s 117(2)) and, if so, then consider whether it was just and equitable to make a departure order (s 117(4)) and whether it was otherwise proper to do so (s 117(5)).
The primary judge first found there were special circumstances to justify the parties’ respective applications for departure orders to be entertained (at [94], [126]). It was correct to so find because, in final submissions, the husband’s counsel admitted:
So it seems to me that special circumstances in this case is [sic] certainly made out…
(Transcript 19 October 2017, p.40 line 12)
The primary judge then found the costs of maintaining the children were significantly affected because they were being privately educated in the manner expected by the parties, so grounds for departure from the administrative assessment existed under s 117(2)(b)(ii) of the Assessment Act (at [154], [156]).
The primary judge then found the administrative assessment of child support would result in an unjust and inequitable level of financial support for the children” because the wife’s capacity to provide such financial support was significantly reduced on account of her lack of income and the higher cost of maintaining the children due to their private education (at [155], [157]). In effect, that was another way of expressing a finding that it would be just and equitable for a departure order to be made, so as to satisfy the requirements of ss 117(1)(b)(ii)(A) and s 117(4)) of the Assessment Act.
Finally, the primary judge confirmed it would be otherwise proper to make a departure order (at [157]), so as to satisfy ss 117(1)(b)(ii)(B) and 117(5) of the Assessment Act.
The primary judge’s ultimate satisfaction of the criteria prescribed by ss 117(4) and 117(5) of the Assessment Act was established and adequately explained in the reasons for judgment by the factual findings related to the children’s needs and the parties’ respective income, earning capacity, expenses, property, and financial resources. Those findings have been discussed under the rubric of Grounds 1 and 2 and need not be repeated.
Ground 4.1 should fail.
Conclusion and costs
The appeal lacks merit and so application for leave to appeal should be dismissed. The primary judge’s decision is not attended by sufficient doubt to warrant its reconsideration.
In that event, the wife sought an order that the husband pay her costs of and incidental to the application for leave to appeal, but asked that any decision about costs be postponed until after the application for leave to appeal (and/or the appeal) is determined, as she may wish to press an application for indemnity costs rather than just costs on an ordinary party/party basis. The husband did not object to that course being taken, so orders to that effect are made.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Kent & Austin JJ) delivered on 3 May 2019.
Associate:
Date: 3 May 2019
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