Rickert and Rickert (No 2)

Case [2020] FamCA 841

FAMILY COURT OF AUSTRALIA

RICKERT & RICKERT (NO. 2) [2020] FamCA 841

FAMILY LAW – CHILD SUPPORT – Where the Applicant husband has made an Application for interim orders including for the discharge of previous consent Orders made in respect to child support –Where previous consent Orders were made for the husband to pay 65% of children’s private school fees – Where the husband has not complied with his obligations to pay the school fees since November 2019 – Where the husband is in arrears of $40,000 of school fees payable by him – Where the husband has failed to serve the Child Support Registrar with his Application – Application adjourned to the first day of hearing.

FAMILY LAW – SPOUSAL MAINTENANCE – Where the Application for interim orders also seeks the discharge of previous consent Orders made in respect to spousal maintenance – Where previous consent Orders were made for the husband to pay, by way of interim spousal maintenance, the rates and insurance expenses for the former matrimonial home – Where the final hearing has been listed in three (3) months of this interim Application – Consideration given to whether the circumstances have changed or new facts have been discovered – Application dismissed.

FAMILY LAW – INTERIM PROPERTY DISTRIBUTION – Where the Application for interim orders also seeks orders for a partial property distribution through the sale of the parties former matrimonial home – Where the wife seeks to retain the property at the final hearing of the matter – Where the final hearing has been listed in three (3) months – Consideration given to whether it is in the interest of justice for such an order to be made – Application dismissed.

FAMILY LAW – COSTS – Where the wife seeks that her costs of this Application be paid for by the husband on an indemnity basis – Whether the conduct of the parties to the proceedings justifies an order for costs – Court finds an order should be made for costs to be awarded on a party/party basis – Consideration as to quantum of costs - Whether costs should be paid on a lump sum basis – Whether costs should be paid following the final property Orders being entered – Order made for the husband to pay the wife’s costs incidental to this interim Application on a party/party basis in a fixed lump sum amount following the conclusion of the substantive property proceedings.

Child Support (Assessment) Act 1989 (Cth) ss 116, 117, 129, 145
Family Law Act 1975 (Cth) ss 79, 80, 83, 117,
Family Law Rules 2004 (Cth) rr 1.08, 4.15, 4.23, 5.02, 5.08, 5.09, 9.08, 11.02, 11.03, 15.08
Federal Court of Australia Act 1976 (Cth) ss 37M, 37N
Family Court of Australia and Federal Circuit Court of Australia, Joint Practice Direction No. 1 of 2020 – Core Principles in the Case Management of Family Law Matters, 28 January 2020
Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated (1981) 148 CLR 170

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AGLC
Rickert and Rickert (No 2) [2020] FamCA 841
Case
[2020] FamCA 841
Decision Date

CaseChat Overview and Summary

In this matter before McClelland DCJ, the applicant husband sought interim orders for the discharge of previous consent orders relating to child support and spousal maintenance, as well as an interim order for a partial property distribution. The husband had failed to comply with his child support obligations since November 2019, accumulating arrears of $40,000 in school fees. He also sought to discharge spousal maintenance orders requiring him to pay the rates and insurance for the former matrimonial home. The wife opposed these applications and sought costs on an indemnity basis.

The court was required to determine whether the circumstances had changed sufficiently to warrant the discharge of the existing consent orders for spousal maintenance, and whether an interim order for the sale of the former matrimonial home was in the interests of justice. Additionally, the court needed to consider the husband's failure to serve the Child Support Registrar with his application and the appropriate basis for awarding costs.

Regarding spousal maintenance, the court applied the principles from *Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated* and *Cutler v Wandsworth Stadium Limited*, holding that the onus was on the husband to establish changed circumstances by evidence. The court found that the husband had not discharged this onus, noting that the wife's ability to access funds for legal fees did not necessarily indicate a readily available financial resource for her own needs, as per the principles in *Hall v Hall*. The application for interim property distribution was dismissed as the court was not satisfied it was in the interests of justice, particularly given the final hearing was scheduled within three months. The husband's application for interim orders was largely dismissed, with the exception of the child support aspect concerning the discharge of orders, which was adjourned to the first day of the final hearing. The court ordered the husband to pay the wife's costs on a party/party basis in a fixed lump sum, to be paid from his share of the property following the final property orders.

Orders

Orders of the court

1.

Save to the extent set out in Order (2) hereunder, the Applicant husband’s Application in a Case filed on 5 June 2020 as amended by Amended Application in a Case filed on 7 September 2020 is dismissed.

2.

That part of the husband’s Amended Application in a Case filed 7 September 2020, as set out in paragraph 1, in respect to a discharge of Orders 3 and 4 of the Orders made by consent on 24 September 2018 is adjourned to 18 January 2021, being the first day of the substantive final hearing of this matter.

3.

In the event of the husband proceeding with that part of his Amended Application in a Case, as referred to in Order (2) above, he shall, unless leave is otherwise given, proceed on the basis of the evidence that has been tendered in support of the husband’s Amended Application in a Case referred to in Order (1) above.

4.

The husband pay costs of and incidental to these proceedings in the sum of $21,217 with such costs to be paid from that property which the husband receives as a result of any adjustment made to the parties’ property as a result of any final orders made pursuant to s 79 of the Family Law Act 1975 (Cth).

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

Background

Background to the litigation

In Adam P Brown Male Fashions Pty Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 178, the High Court stated that, in considering whether interim orders should be varied, a Court should consider whether, inter alia, any “new facts come into existence or are discovered which render its enforcement unjust”. That is a sensible and practical approach to considering an application for variation of an order for interim spousal maintenance. In Adam P Brown Male Fashions Pty Limited (Supra), the High Court applied Cutler v Wandsworth Stadium Limited (1945) 1 All ER 103 in confirming that the onus rests on the person seeking to vary the consent or interim order to establish that those changed circumstances and that must be “established by evidence”. In this matter, the husband contends that there has been a change in both the wife’s circumstances and also his circumstances such that a discharge of the previous spousal maintenance orders is appropriate. He has, however, not discharged the onus which he carries to establish that has occurred. The evidence regarding the husband’s circumstances in respect to this issue is set out in his Affidavit filed 7 September 2020. In respect to what he contends to be a relevant change in the wife’s circumstances, the husband submits that, since the Orders were made in September 2018, the wife has disclosed that she has a significant financial resource which is reflected in the fact that she has been able to raise the amount of $200,000 to pay her legal fees. The husband, through his counsel, contended that the wife has not provided adequate disclosure in respect to what he contends to be that financial resource which the wife has been able to access. Despite submissions by counsel for the husband that the wife had not provided proper disclosure of the amount she has spent in respect to legal fees, at paragraph 52 of his Affidavit, the husband states that his understanding was that, as at 7 September 2020, being the date that he filed his Affidavit, the wife’s parents had lent her approximately $140,000 for the payment of legal fees. The wife has since updated that amount by way of a costs disclosure notice provided to the husband and the Court. The fact that the wife has been able to access funds to meet her legal fees is not, however, indicative of the source of those funds being a financial resource for the wife. In Hall v Hall (20160 332 ALR 1at [54], the High Court described, with reference to Kelly & Kelly (No 2) (1981) FLC 91-108, the task of considering whether an applicant for spousal maintenance has access to a financial resource in the following terms: The reference to “financial resources” in the context of s 75(2)(b) has long been correctly interpreted by the Family Court to refer to “a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”. The requirement that the financial resource be that “of” a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support. Thus, it has long correctly been recognised that a nominated beneficiary of a discretionary trust, who has no control over the trustee but who has a reasonable expectation that the trustee's discretion will be exercised in his or her favour, has a financial resource to the extent of that expectation.(Citations omitted)

Evidence

Evidence Before The Court

Rule 5.02(1) of the Rules relevantly provides: Evidence in applications to which Chapter 5 applies (1) A party who applies for an interim, procedural, ancillary or other incidental order in an Initiating Application (Family Law), or who files an Application in a Case, must at the same time file an affidavit stating the facts relied on in support of the orders sought. Rule 5.09 of the Rules provides: Affidavits The following affidavits may be relied on as evidence in chief at the hearing of an interim or procedural application: (a) subject to rule 9.07, one affidavit by each party; (b) one affidavit by each witness, provided the evidence is relevant and cannot be given by a party. Rule 15.08(1) of the Rules sets out the requirements for an affidavit as follows: (1) An affidavit must: (a) be divided into consecutively numbered paragraphs, with each paragraph being, as far as possible, confined to a distinct part of the subject matter; (b) state, at the beginning of the first page: (i) the file number of the case for which the affidavit is sworn; (ii) the full name of the party on whose behalf the affidavit is filed; and (iii) the full name of the deponent; (c) have a statement at the end specifying: (i) the name of the witness before whom the affidavit is sworn and signed; and (ii) the date when, and the place where, the affidavit is sworn and signed; and (d) bear the name of the person who prepared the affidavit. The Financial Questionnaires that the husband seeks to rely upon are not affidavits. They have not been sworn and do not comply with r 15.08(c) or (d) of the Rules. The husband’s case outline document prepared for the purposes of these proceedings (see ‘Exhibit 1’) identified those Affidavits that the husband sought to rely upon in these proceedings. The husband did not identify the Financial Questionnaires as being documents upon which he sought to rely on in these proceedings. In so far as the husband seeks to rely on the Financial Questionnaires to, in effect, supplement the evidence set out in his Affidavit, r 15.08(2) and (3) relevantly provide:(2) A document that is to be used in conjunction with an affidavit and tendered in evidence in a proceeding:(a) must be identified in the affidavit; and The Financial Questionnaires were not identified in the husband’s Affidavit nor were they served at the time that the husband’s Affidavit was served. They have merely been provided in a bundle of documents that was provided to the wife and the Court shortly prior to the commencement of the hearing and not prior to two (2) days before the hearing in accordance with r 9.08(3) of the Rules. Further, no application was made pursuant to r 11.03 of the Rules to grant relief from the effect of r 11.02, which provides that a step in a proceeding that has not been undertaken within a time prescribed by an order or the Rules is of no effect. Accordingly, for all of those reasons, I have not had regard to the contents of the Financial Questionnaires previously completed by the parties as evidence in these proceedings. To avoid doubt, I repeat that, even if I had considered the Financial Questionnaires as providing evidence in these proceedings, I would nonetheless have dismissed the husband’s Application for orders for partial property distribution because I am not satisfied that such order would be in the interests of justice.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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