Sanderson and Sanderson (No 2) - [2017] FamCA 231

FAMILY COURT OF AUSTRALIA

SANDERSON & SANDERSON (NO. 2)

[2017] FamCA 231

FAMILY LAW – CHILD MAINTENANCE – Application for adult child maintenance by the wife – Where the child is the step-child of the husband – Where there was no evidence as to the considerations in s 60H, s 60L or s 60M of the Family Law Act 1975 (Cth) - Application dismissed.

FAMILY LAW – CHILD SUPPORT – Application for child support departure by the wife – Where the special circumstances of the case to warrant such a departure as sought by the wife in relation to periodic child support – Where the special circumstances warrant a ground for departure in relation to the child’s school fees – Where it is just and equitable to make such an order.

FAMILY LAW – PROPERTY – INTERIM PROPERTY SETTLEMENT – Where the husband seeks that joint funds in a controlled money account be disbursed – Where in the circumstances of the case it is not possible to make any estimate of the property pool – Application dismissed.

FAMILY LAW – PROPERTY – INTERIM ORDERS – Where both parties assert the other is not an appropriate person to manage the parties’ company – Where the only appropriate resolution is to appoint a Receiver to manage the company – Where the orders provide for the wife to nominate three potential professionals and the husband to choose one from this list.

Child Support (Assessment) Act 1989 (Cth) ss 117, 124
Family Law Act 1975 (Cth) ss 66H, 66L, 66M, 80(1)(k)

Family Law Rules 2004 (Cth) Part 20.6

APPLICANT:

Mr Sanderson

RESPONDENT:

Ms Sanderson

FILE NUMBER:

NCC

1455

2015

DATE DELIVERED:

13 April 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:	Rees J
HEARING DATE:	12 April 2017

REPRESENTATION

THE APPLICANT:

In person

SOLICITOR FOR THE APPLICANT:

Carson & Associates (acting but did not appear)

COUNSEL FOR THE RESPONDENT:

Mr Batey

SOLICITOR FOR THE RESPONDENT:

York Law

Orders

IT IS ORDERED

That the parties do all acts and things required to facilitate the appointment of a Receiver/Manager for the company, Company A Pty Ltd ACN …(“APL”) and to give effect to this order:
(a)That within 14 days, the wife provide to the husband’s solicitor a list of three proposed persons to be appointed as Receiver/Manager of APL to include the full name and address of the proposed person, details of the fees proposed to be charged and have attached the consent of the person to be appointed Receiver/Manager of APL.
(b)That within 14 days of the service on the husband’s solicitor of the list referred to above, the husband shall file and serve a document nominating the person he chooses to be the Receiver/Manager of APL. In the event that the husband does not make a nomination within the time provided, then the wife shall make the nomination.
(c)Upon the filing of the nomination the Court shall make orders in chambers for the appointment of the Receiver/Manager in the following terms:

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.

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Details

Case: [2017] FamCA 231
Decision Date: 13 April 2017

CaseChat Overview and Summary

In *Sanderson and Sanderson (No 2)*, Rees J considered applications by both the husband and wife concerning property settlement, child maintenance, and child support. The wife sought adult step-child maintenance and a departure from the child support assessment, while the husband sought interim property settlement orders regarding joint funds in a controlled money account. The parties also disputed the management of their jointly owned company.

The court was required to determine whether to grant the husband's application for interim property settlement, the wife's application for adult step-child maintenance, and her application for a departure from the child support assessment. Additionally, the court had to resolve the dispute over the management of the parties' company, APL.

Rees J dismissed the husband's application for interim property settlement, finding it impossible to estimate the property pool in the circumstances. The wife's application for adult step-child maintenance was also dismissed due to a lack of evidence regarding the considerations under sections 66H, 66L, and 66M of the *Family Law Act 1975* (Cth). While the wife's application for a child support departure was initially dismissed in relation to periodic child support, the court found that special circumstances warranted a departure concerning the child's school fees, deeming it just and equitable to make such an order. Regarding the company, APL, the court determined that neither party was an appropriate person to manage it and ordered the appointment of a Receiver/Manager, with the wife to nominate three candidates and the husband to select one.

Orders

Orders of the court

IT IS ORDERED

That the parties do all acts and things required to facilitate the appointment of a Receiver/Manager for the company, Company A Pty Ltd ACN …(“APL”) and to give effect to this order:

(a) That within 14 days, the wife provide to the husband’s solicitor a list of three proposed persons to be appointed as Receiver/Manager of APL to include the full name and address of the proposed person, details of the fees proposed to be charged and have attached the consent of the person to be appointed Receiver/Manager of APL.

(b) That within 14 days of the service on the husband’s solicitor of the list referred to above, the husband shall file and serve a document nominating the person he chooses to be the Receiver/Manager of APL. In the event that the husband does not make a nomination within the time provided, then the wife shall make the nomination.

(c) Upon the filing of the nomination the Court shall make orders in chambers for the appointment of the Receiver/Manager in the following terms:

(i) That (the nominated person) be appointed Receiver/Manager of APL.

(ii) That the Receiver/Manager have the powers given to a receiver by virtue of the provisions of s 420(2) of the Corporations Act 2001 (Cth).

(iii) That the costs of the Receiver/Manager be paid by APL and to the extent that there is any shortfall, jointly by the husband and the wife.

(iv) That the Receiver/Manager have liberty to apply on short notice for further directions.

That the husband’s application for interim property settlement contained in his Application in a Case filed 24 August 2016 be dismissed.

That the wife’s application for adult step-child maintenance contained in her response filed 25 August 2016 be dismissed.

That the wife’s application for a child support departure, in relation to periodic child support, contained in her response filed 25 August 2016 be dismissed.

That pursuant to s 124 of the Child Support (Assessment) Act 1989 (Cth), for the period from the date of these Orders until the child B born … 2004 completes her secondary schooling if that is later, the husband shall pay child support to the wife by way of payment of 50 per cent of the tuition expenses and school fees, costs of school uniforms and other compulsory school expenses referable to the child’s attendance at E School.

That the Conciliation Conference listed for 4 May 2017 be vacated.

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

Background

Background to the litigation

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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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