SIBLY & CASSIDY
[2015] FamCA 912
•27 October 2015
FAMILY COURT OF AUSTRALIA
| SIBLY & CASSIDY | [2015] FamCA 912 |
| FAMILY LAW – PROPERTY – final orders – where the husband is an Australian citizen – where the wife is a Canadian citizen –– where there had been proceedings in a Canadian Court – where both parties seek orders for property settlement – where consideration is given to the jurisdiction of the Family Court – where consideration is given to the contributions of both parties – where consideration is given to section 75(2) of the Family Law Act 1975 (Cth) factors – where it is found to be just and equitable for there to be an order for property settlement pursuant to section 79 – where the wife is entitled to be paid an amount of the husband’s superannuation fund – where each party is entitled to the exclusion of the other all property in the possession of such party. FAMILY LAW – CHILD SUPPORT – final orders – where one child lives in Australia and the other lives in Canada – where there are orders of a Canadian Court that provide for spouse maintenance and child support due by the husband to the wife – where consideration is given to the registration and enforcement in Australia of overseas maintenance agreements – where it is found to be just and equitable for the Court to take into account when consideration the orders to be made, the Canadian orders in relation to child support, spouse maintenance and costs – where it is ordered that all arrears in relation to child support be discharged, and forthwith reduced to nil. |
| Child Support (Assessment) Act 1989 (Cth) – s 116(1)(b) Interjurisdictional Support Orders Act 2002 (Ontario) – Chapter 13 |
| Bevan & Bevan (2004) FamLR 387 Stanford & Stanford (2012) 247 CLR 108 |
| APPLICANT: | Ms Sibly |
| RESPONDENT: | Mr Cassidy |
| FILE NUMBER: | DNC | 570 | of | 2010 |
| DATE DELIVERED: | 27 October 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Darwin |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 8 September 2014, 15-16 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In Person (by Cisco Jabber) |
| COUNSEL FOR THE RESPONDENT: | Ms Farmer |
| SOLICITOR FOR THE RESPONDENT: | Withnalls Lawyers |
Orders
The Orders of Justice J S Fregeau made 29 January 2014 be hereby dismissed.
All unpaid child and spousal support owing pursuant to the orders of Justice D C Shaw made 19 January 2011 and Justice J S Fregeau made 29 January 2014 be reduced to nil including any penalties and interest.
All sums due and payable to the husband by the wife pursuant to the orders of Justice D C Shaw of the Ontario Supreme Court on 19 June 2011 for costs of the appeal (SEVENTEEN THOUSAND FIVE HUNDRED DOLLARS [$17,500.00]) be discharged.
All sums due and payable to the wife by the husband pursuant to the orders of Justice DC Shaw of the Ontario Supreme Court on 19 January 2011 be hereby discharged.
Pursuant to the s 90MT(1)(a) of the Family Law Act 1975 (Cth) whenever a splittable payment becomes payable in respect of the superannuation interest of the husband in the Australian Super Fund (“Fund”):
(a)the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 as to TEN THOUSAND DOLLARS [$10,000.00] of the husband’s Fund; and
(b)there be a corresponding reduction in the entitlement to the husband or such other person to whom a splittable payment may be made would have had in the Fund but for these orders.
Whenever the Trustee of the Fund makes a splittable payment out of the husband’s interest in the Fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 5 of these orders in accordance with the requirements of the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2001.
The orders concerning superannuation have effect from the operative time and the operative time is four [4] days after the date of service of a certified copy of these orders.
The splittable payment referred to at order 5 herein discharge any indebtedness by the husband to the wife as at the date of these orders for unpaid airfare costs for the child R pursuant to order 3(c) of the orders 23 April 2012.
Unless otherwise specified in this order and except for the purpose of enforcing the payment of money due under this Order or any subsequent order:
(a)each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
Pursuant to s 116(1)(b) of the Child Support (Assessment) Act 1989 (Cth) there be a departure order from the administrative assessment and the following orders be made for child support of the child R born … 2005:
(a)all arrears owed by the wife to the husband for the child R be discharged;
(b)the child support payable by the wife to the husband for the child R be reduced to nil.
The garnishment of funds from the wages of the husband pursuant to any administrative assessment of child support be stayed until 27 June 2023.
The husband deliver to the wife in Darwin upon her next attendance in Darwin the following personal possessions of the wife:
(a) two blankets;
(b) mixer;
(c) CDs; and
(d) books
The final application filed by the wife on 23 September 2013 be dismissed and removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sibly & Cassidy has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: DNC 570 of 2010
Ms Sibly
Applicant
And
| Mr Cassidy |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant Ms Sibly (hereinafter referred to as “the wife”) and the respondent Mr Cassidy (hereinafter referred to as “the husband”) seek orders in relation to financial matters,
The orders sought relate to final property settlement, child support, costs of proceedings in Ontario, Canada and enforcement or discharge of arrears pursuant to both Canadian and Australian orders.
Background and relevant chronology
The husband was born in 1974 in Darwin, Australia. The wife was born in 1975 in Canada.
The husband is an Australian citizen. The wife is a Canadian citizen. The wife did have permanent residency in Australia.
The parties met in 2002 when the wife was in Australia on a working visa. They commenced living together in October 2004 and were married in 2005 in Australia.
The first child of the parties, R, was born in Canada in 2005 (hereinafter referred to as “R”). The second child K, was born in Canada in 2010 (hereinafter referred to as “K”).
At various times the husband has visited Canada. The wife has also resided in Australia from time to time.
There is a dispute about the date of the final separation of the parties. The husband maintains that separation occurred on 26 September 2009, when the wife took R from Australia to Canada without his permission. The wife says the separation occurred after she received notice of the Hague Convention proceedings whilst she was in Canada. Her Initiating Application states the final date of separation as 18 February 2010.
The specific date of separation is not a significant factor when determining these property settlement proceedings or other financial issues.
The wife was expecting the second child (K) when she travelled to Canada. K was born in Canada. He has not left Canada and has remained residing with the wife in Canada. He has spent limited time with his father since his birth.
In November 2009 the husband commenced proceedings in Canada concerning R pursuant to the Hague Convention on Civil Aspects of Child Abduction. The hearing took place in Canada in September/October 2010. The wife appealed the decision which directed her to return R to Australia. That appeal was not successful.
On 19 January 2011 the Ontario Court of Justice (“Canadian Court”) also made orders in relation to costs of the Hague Convention proceedings which directed the wife to pay the husband C$12,500 for the Hague Convention proceedings and C$5,000 for the costs of the appeal.
The husband participated briefly in the spouse maintenance proceedings in Canada where orders were made. The final orders of the Canadian Court provided for the father to pay child support for K and spousal support for the wife.
In January 2011 the Canadian Court also made orders in relation to child support to be paid by the husband to the wife and spousal support, (Justice D C Shaw ordered the father pay child support C$386 per month from 1 January 2011, spousal support of C$70 per month from 1 January 2011 and applied a credit of C$1,272 for spousal support and child support voluntarily paid by the husband). The husband was also ordered to pay the wife’s costs fixed at C$1,500.
The orders made on 24 January 2011 by the Canadian Court provided for the husband to collect the child R on 28 January 2011. R was to be returned to Australia at the husband’s expense.
Further orders by Justice J S Fregeau of the Superior Court of Justice Family Court Branch Ontario were made on 29 January 2014 and are annexed to the wife’s affidavit filed on 10 June 2014. The orders provide:
1.The Respondent, [Ms Sibly] shall have final sole custody of the child [K], born …, 2010.
2.The Applicant, [Mr Cassidy], shall pay to the Respondent, [Ms Sibly], child support for the child, [K], born …, 2010 in the amount of $611.00 per month beginning January 1, 2014, based on his annual income of $66,851.00 per year and the Child Support Guidelines.
3.The Applicant, [Mr Cassidy], shall pay to the Respondent, [Ms Sibly], spousal support in the amount of $1,638.00 per month beginning January 1, 2014, which is the mid point of the range set out in the Spousal Support Advisory Guidelines based on his income.
4.The Respondent, [Ms Sibly], shall, beginning 2014, provide to the Applicant, [Mr Cassidy], a copy of her complete TI General Income Tax return and Notice of Assessment for the immediately preceding year. The Respondent shall do so beginning June 1, 2014 and on or before June 1st in each subsequent year for as long as she is claiming spousal support.
5.A Support Deduction Order shall issue
6.This order bears interest at the post judgment interest rate of 3% per cent per year effective from the date of this order. A payment in default bears interest only from the date of default.
7.Unless the order is withdrawn from the office of the Director, Family Responsibility Office, it shall be enforced by the Director, and amounts owing under the order shall be paid to the Director, who shall pay them to the person to whom they are owed.
8.There shall be no order as to costs.”
Subsequently proceedings in the Family Court of Australia were commenced.
The husband registered with the Australian Child Support Agency (“CSA”) in early 2011. The determination by the CSA in Australia provides for the wife to be liable to pay child support payments in relation to the child R at the rate of A$370 per annum. Subsequently at the time of the commencement of the trial the CSA assessment provided for her to pay A$1,284 per annum.
On 1 December 2011 a hearing took place in the Family Court of Australia in relation to the child R. On 23 April 2012 orders were made which provided that the husband have sole parental responsibility for R, that he live with the husband in Australia and that he spend time with the wife in Australia in certain periods during school holidays and other ancillary orders. The orders also provided that if the wife returned to reside permanently in Darwin before 1 July 2013 then other orders would apply providing for the parents to have equal shared parental responsibility and a week about care arrangement for R.
The wife did not return to reside in Darwin therefore at the time of the hearing of the financial matters the child R was in the permanent care of the husband in Australia and the child K was in the permanent care of the wife in Canada.
The parties were divorced and the decree nisi became absolute on 1 October 2012.
The wife commenced proceedings seeking alteration of property rights on 23 September 2013 in the Family Court of Australia.
The final orders sought in that application contain the following:
1.An equitable division of matrimonial property to be particularized in more detail once the process of discovery and inspection has taken place.
The final hearing
In the amended Initiating Application filed on 19 August 2014 the wife sought the following orders:
1.That the Respondent is permanently restrained by injunction from pursuing the Applicant for the costs ordered and owed by the Applicant to the Respondent in the Superior Court of Justice Ontario Court proceedings FS-10-219.
2.That the Respondent pay ten thousand dollars ($10,000) in Accordance (sic) with Part 6 of the family (sic) Law (Superannuation) Regulations 2001 into the Applicants (sic) fund.
3.That the Respondent pay the Applicant the amount for half the cost of three flights, $4569.05 Canadian Dollars and $313.81 Australian Dollars.
4.That the Respondent pay the lump sum of $5000 Australian dollars to the Applicant for personal property and chattels.
In the amended Response filed on 24 June 2014 the final orders sought by the husband were as follows:
1.That pursuant to s.79 of the Family Law Act and upon noting the respondent consents to being permanently restrained by injunction from pursuing the applicant for costs ordered and owed by the applicant to the respondent in the Superior Court of Justice Ontario Court proceedings FS-10-219, the applicant’s application be otherwise dismissed.
2.That pursuant to s.116(1)(b) of the Child Support (Assessment) Act there be a Departure Order from the administrative assessment and the following Orders be made:
(a)That all arrears owed by the Respondent to the Applicant be discharged;
(b)That the administrative assessment of Child Support payable by the Respondent to the Applicant be reduced to nil and the administrative assessment of Child Support payable by the Applicant to the Respondent be reduced to nil.
3.That pursuant to s.90MT(1)(b) of the Family Law Act, whenever a splittable payment becomes payable in respect of the superannuation interest of the Respondent in the Australian Super Fund (“Fund”):
(a)The Applicant shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 as to ten thousand dollars ($10,000) of the Respondent’s Fund; and
(b)There be a corresponding reduction in the entitlement to the Respondent, or such other person to whom a splittable payment may be made, would have had in the fund, but for these Orders.
4.Whenever the Trustee of the funds makes a splittable payment out of the Respondent’s interest in the fund, the Trustee shall do all such acts and things and sign all such documents as may be necessary to pay the entitlement created in paragraph 5.1 of these Orders in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001.
5.These Orders have effect from the operative time and the operative time is four (4) days after the date of the service of a certified copy of these Orders.
6.That unless otherwise specified in this order and except for the purpose of enforcing the payment of money due under this order or any subsequent order:
(a)each party shall be entitled to the exclusion of the other to all other property and chattels of whatsoever kind or nature in the possession of such party as at the date hereof and for this purpose, bank accounts are deemed to be in the possession of the person whose name appears on the bank records thereof, superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements; and
(b)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this order.
7.That forthwith the collection of funds from the Respondent pursuant to the administrative assessment Child Support reference 612388820286 be stayed until further order.
8.That the matter be listed for Trial as soon as possible.
After various directions were made the final hearing of the matters was heard on 15 and 16 October 2014 in the Darwin Registry. At the hearing the husband was represented by Ms Farmer of counsel. The wife was unrepresented and had been given permission to attend the proceedings by electronic means (Cisco Jabber) from Ontario, Canada.
At the final hearing the parties indicated that the evidence that was to be before me for final determination were specific documents and the oral evidence of the husband and wife.
For the purposes of the trial the wife relied on:
·Affidavit sworn on 11 March 2011 and filed 25 March 2011;
·Initiating Application filed on 23 September 2013;
·Affidavit sworn on 11 September 2013 and filed on 23 September 2013;
·Affidavit sworn on 3 June 2014 and filed on 10 June 2014;
·Amended Initiating Application (which is actually an Application in a Case) filed on 19 August 2014;
·Affidavit sworn on 14 August 2014 and filed on 19 August 2014;
·Amended affidavit sworn on 7 October 2014 and filed on 8 October 2014; and
·Amended Financial Statement sworn on 7 October 2014 and filed on 8 October 2014.
The husband relied upon the following documents:
·Financial Statement sworn and filed on 10 December 2013;
·Affidavit sworn and filed on 10 December 2013;
·Amended Response filed on 24 June 2014;
·Affidavit sworn on 23 June 2014 and filed on 24 June 2014;
·Further affidavit sworn on 17 August 2014 and filed on 18 August 2014; and
·Financial Statement sworn on 17 August 2014 and filed on 18 August 2014.
During the hearing the Court also received exhibits in relation to bank accounts and credit card statements, documents concerning the wife’s employment and other related matters, including documents upon which the wife was cross-examined during her oral evidence.
The Court also received the outline of case filed on behalf of the husband on 11 October 2014.
On 15 October 2014, after hearing brief submissions from counsel for the husband and the wife in person by video link, the wife was sworn and gave her oral evidence and was thereafter cross-examined.
On 16 October 2014 the cross-examination of the wife continued. Upon conclusion of the wife’s evidence the husband gave brief evidence in chief and was then cross-examined by the wife. Following brief re-examination by counsel, the husband’s evidence concluded.
I then received the final submissions on behalf of counsel for the respondent husband and the wife in person.
Judgment was reserved.
On 1 May 2015, judgment was delivered and orders made in relation to the garnishment of funds from the husband’s wages. The order provided:
1.The garnishment of funds from the wages of the husband pursuant to the administrative assessment of Child Support be stayed pending further order.
The Law
The wife commenced the proceedings in the Family Court of Australia seeking orders for final property settlement. The husband’s response also seeks orders by way of final property settlement.
The parties resided in Australia for part of the time of their marriage and were both resident here at the time of the marriage. A significant proportion of the assets of the parties are in Australia.
The relevant provisions of s 79 of the Family Law Act 1975 (Cth) (“the Act”) are as follows:
Section 79
Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them - altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage - altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d) an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
…
Subsection 75(2) is relevant as it is referred to in subsection 79(4)(e) of the Act. Subsection 75(2) states:
Section 75(2)
(2) The matters to be taken into account are:
(a) the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party's role as a parent; and
(m)if either party is cohabiting with another person -- the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of the person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The definition of “matrimonial cause” includes:
Section 4(1)
Matrimonial cause means:
…
(c)proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage;
…
(ca)proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings:
(i) arising out of the marital relationship;
…
and
…
(eb)proceedings with respect to the enforcement of a decree made under the law of an overseas jurisdiction in proceedings of a kind referred to in paragraph (c);
(f)any other proceedings (including proceedings with respect to the enforcement of a decree or the service of process) in relation to concurrent, pending or completed proceedings of a kind referred to in any of paragraphs (a) to (eb), including proceedings of such a kind pending at, or completed before, the commencement of this Act.
The relevant parts of s 31 are as follows:
Section 31
Original jurisdiction of Family Court
(1)Jurisdiction is conferred on the Family Court with respect to:
(a)matters arising under this Act or under the repealed Act in respect of which matrimonial causes are instituted or continued under this Act; and
…
(d)matters (other than matters referred to in any of the preceding paragraphs) with respect to which proceedings may be instituted in the Family Court under this Act or any other Act.
(2)Subject to such restrictions and conditions (if any) as are contained in section 111AA, the regulations or the standard Rules of Court, the jurisdiction of the Family Court may be exercised in relation to persons or things outside Australia and the Territories.
Note: Division 4 of Part XIIIAA (International protection of children) may affect the jurisdiction of the Court.
Section 33 also provides:
Section 33
Jurisdiction in associated matters
To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within the jurisdiction expressed by this Act or any law to be conferred on the Court that are associated with matters (including matters before the Court upon an appeal) in which the jurisdiction of the Court is invoked or that arise in proceedings (including proceedings upon an appeal) before the Court.
Section 39 provides that the proceedings may be instituted in this Court.
The husband is an Australian citizen, an ordinary resident and present in Australia (see s 39(4) of the Act).
Part XIIIAA of the Act is entitled International Conventions, International Agreements and International Enforcement. Sections 110, 110A and 111A of that Part deals with overseas enforcement of maintenance orders. It provides as follows:
(1) In this section:
“jurisdiction with restricted reciprocity" means a country, or part of a country, outside Australia declared by the regulations to be a jurisdiction with restricted reciprocity for the purposes of this section.
"maintenance order " means:
(a) an order or determination (however described) with respect to the maintenance of a party to a marriage;
(b) an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, other than an order or determination of the kind referred to in paragraph (c);
(c) an order or determination (however described) with respect to the maintenance of a child who has not attained the age of 18 years, being an order or determination that is expressed to continue in force until a day that is later than, or for a period that extends beyond, the day on which the child will attain that age, where the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is mentally or physically handicapped;
(d) an order or determination (however described) with respect to the maintenance of a child who has attained the age of 18 years, being an order or determination that is expressed to continue in force until a day, or for a period, specified in the order or determination, where the provision of maintenance for the child is necessary to enable the child to complete a course of study, vocational training or an apprenticeship or to continue his or her education in any other way, or because the child is mentally or physically handicapped; and
(e) to the extent provided by the regulations, an order made under section 67D, or an order or determination (however described) that deals with matters of a kind in relation to which orders may be made under that section.
“reciprocating jurisdiction" means a country, or part of a country, outside Australia declared by the regulations to be a reciprocating jurisdiction for the purposes of this section.
(2) The regulations may make provision for and in relation to:
(a) the registration in, and enforcement by, courts having jurisdiction under this Act of maintenance orders made by courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity;
(aa) the institution and prosecution, by an officer of a court having jurisdiction under this Act, a prescribed authority of the Commonwealth, of a State or Territory, or of another country or a part of another country, or a person for the time being holding a prescribed office under a law of the Commonwealth, of a State or Territory, or of another country or a part of another country, in his, her or its discretion, of proceedings:
(i)on behalf of the person entitled to moneys payable under a maintenance order made by a court or authority of a reciprocating jurisdiction or of a jurisdiction with restricted reciprocity, for the enforcement by a court having jurisdiction under this Act of that maintenance order; or
(ii)for the making of orders for the confirmation of provisional orders made by courts of reciprocating jurisdictions or of jurisdictions with restricted reciprocity, being provisional orders referred to in paragraph (d);
(ab) the institution and prosecution, by an authority entitled to moneys payable under a maintenance order, in the authority's discretion, of proceedings for the enforcement of that maintenance order by a court having jurisdiction under this Act;
(b) the transmission to appropriate courts or authorities of reciprocating jurisdictions or of jurisdictions with restricted reciprocity of maintenance orders made by courts having jurisdiction under this Act for the purpose of securing the enforcement of those orders in those jurisdictions;
(ba) the making of provisional maintenance orders, and the transmission of such orders to appropriate courts of reciprocating jurisdictions or jurisdictions with restricted reciprocity, for the purposes of obtaining the confirmation, and securing the enforcement, of those orders in those jurisdictions, and the effect in Australia of those orders;
(c) the making of orders (including provisional orders) for the variation, discharge, suspension or revival of maintenance orders registered in accordance with regulations under this section or of maintenance orders or provisional maintenance orders transmitted to other jurisdictions in accordance with regulations under this section, and the effect in Australia of orders under this paragraph;
(d) the making of orders for the confirmation of provisional orders made by courts in reciprocating jurisdictions or in jurisdictions with restricted reciprocity, being provisional maintenance orders or provisional orders varying, discharging, suspending or reviving maintenance orders, and the effect in Australia of orders under this paragraph; and
(e) the making of orders for giving effect to process certified or approved by a court in the United States of America, being process relating to the provision of maintenance, and the effect in Australia of orders under this paragraph.
Section 110A
Registration and enforcement in Australia of overseas maintenance agreements etc.
The regulations may make provision for and in relation to the registration and enforcement in Australia of:
(a)overseas maintenance agreements; or
(b)overseas administrative assessments of maintenance liabilities.
Section 111A
Convention on Recognition and Enforcement of Decisions Relating to Maintenance Obligations
The regulations may make such provision as is necessary or convenient to enable the performance of the obligations of Australia, or to obtain for Australia any advantage or benefit, under the Convention on the Recognition and Enforcement of Decisions Relating to Maintenance Obligations signed at The Hague on 2 October 1973 but any such regulations shall not come into operation until the day on which that Convention enters into force for Australia.
The Family Law Regulations 1984 (Cth) (“the Regulations”) Regulation 30 states as follows:
Regulation 30
Proceedings for enforcement of overseas maintenance entry liabilities
(1)This regulation is about enforcement proceedings for an overseas maintenance entry liability.
(2)Proceedings may be taken as if the liability were an order made under Part VII or VIII of the Act.
(3)The Act, these Regulations and the applicable Rules of Court, so far as they are applicable, and with such modifications as are necessary, apply in relation to the proceedings.
(4)Proceedings may be taken:
(a)by the person who would be entitled to take proceedings if the liability were an order under Part VII or VIII of the Act, as mentioned in subregulation (2); or
(b)by the Secretary, on behalf of the person.
Schedule 2 of the Regulations indicates that pursuant to reg 25 Ontario is a reciprocating jurisdiction.
Section 66E of the Act provides:
Section 66E
Child maintenance order not to be made etc. if application for administrative assessment of child support could be made
(1)A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant ) against, or in favour of, a person (the respondent ) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.
(2)Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).
(3)This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A, (emphasis added).
The Court also received Chapter 13 of the Interjurisdictional Support Orders Act 2002 of Ontario. The Regulations pursuant to that Act indicate that the Commonwealth of Australia is a reciprocating jurisdiction under the provisions of the Interjurisdictional Support Orders Act 2002 of Ontario.
Assessment of evidence
I take into account that the wife gave her evidence by video link from Canada. The time difference between the two countries may well have had an impact upon the wife’s demeanour whilst giving evidence, (either late at night or early in the morning).
I also take into account that the wife was unrepresented when most of the documents were filed and when she gave her evidence.
During the wife’s evidence, the wife admitted that substantial funds had been spent by her since late 2009 in relation to travel expenses and legal fees. She admitted that she had paid one firm of lawyers close to C$100,000. This admission is significant as this has reduced the available assets by approximately A$100,000.
The wife conceded during the evidence that she considered that for the period 2004 to 2009 the contributions of the parties should be considered equal. The wife conceded that she did not have any health issues which were preventing her from seeking employment. She also indicated that she had not been looking for work since July 2014, but had been studying. She said that she may look for work once the child K started school.
The evidence of the husband indicated that he had communicated with the wife with a view to reconciling with her after the date he said the parties separated. He agreed that he resided at the home of the wife in Canada when he visited her shortly after the wife took R to Canada. He maintained that the date of separation should be the day on which the wife left Australia with R without his permission.
In cross-examination, the husband was not significantly challenged on relevant material in his affidavits and exhibits. Similarly, some of the wife’s evidence was not challenged in cross-examination. However, in relation to the financial transactions between the wife and her relatives and her earning capacity, her evidence was not consistent and should not be considered reliable.
In summary the Court prefers the evidence of the husband to that of the wife in relation to the financial circumstances.
Findings
The husband’s evidence, which I accept, indicates that at the commencement of the relationship between the husband and wife, the husband had significant savings of approximately A$120,000, a motor vehicle, some furniture and household goods.
The wife did not challenge this part of the husband’s evidence.
The wife maintained a Canadian bank account but the details of the amount at the time of the commencement of the relationship were not established.
During the relationship between the parties the husband received substantial income and long service leave payments. Much of the funds received were spent on airfares and travel between Darwin and Canada on various dates during the relationship with the parties.
The husband was employed in Australia when the parties were residing in Australia and was unemployed in Canada. He sought to obtain work permits in Canada but was not successful.
The wife did not receive a salary for any work in Australia but contributed as a homemaker and in her role as a parent to the child R.
In June 2007 the husband used $80,000 of his savings to purchase the one-half interest in B Street, Suburb G for $200,000. The wife made no direct financial contribution towards the purchase.
The husband paid the outgoings, including mortgage, insurance and costs for his half-share of the property from the time of its purchase in June 2007 until the separation of the parties.
During the time the parties resided in Canada from time to time they lived in properties owned by the wife’s family.
The wife maintained that she regularly every month withdrew money from her Canadian account to help support the family.
During the trial it was agreed that the Court should consider the contributions of the parties, both financially and non-financially, during the relationship as equal.
I am also satisfied that the contributions of the parties (both financial and otherwise) during cohabitation until the wife left Australia in November 2009 should be considered equal.
The original contribution of the husband’s savings is however significant.
The evidence clearly indicates that K, who was born after the wife travelled to Canada with R, has been in the primary care of the wife since his birth in 2010. The husband has had only limited contact with the child in Canada.
The wife will continue to be the primary carer for K in Canada.
The husband has been the primary carer for R since January 2011.
The issue of the contributions by both parties by way of child support will be brought into account.
Since the parties separation there has been considerable costs incurred in legal fees and travel costs. Most of the legal costs were incurred due to the wife’s travel to Canada with R and her refusal to return to Australia.
The wife’s evidence indicated that she had spent at least C$100,000 on legal fees. The husband’s evidence indicates that he has expended over C$57,000 for legal fees in Canada and has had substantial legal fees for the proceedings in the Family Court of Australia.
The husband paid child support and spouse support after December 2012 for the wife and K. His wages were garnisheed for payments until the order was stayed in May 2015.
The wife had the principal obligation to support R from the time she left Australia in November 2009 until R returned to Australia with the husband in January 2011. Since January 2011 the husband has had the primary responsibility for R with only minimal contribution by the wife. It is also likely that if the wife chooses to remain in Canada the husband will have the ongoing responsibility for the care of R and the wife will have the ongoing significant responsibility for the care of K.
Assets and Liabilities
There was no opposition to the Court receiving the value placed upon items of personal property by each of the parties in their Financial Statements.
The evidence of the value of the husband’s share of B Street, Suburb G was the single expert valuation of A$295,000.
The assets of the parties at the time of the hearing were:
Assets H W
Expert valuation H’s half-share in
B Street, Suburb G, NT $295,000.00
H’s 2004 Motor vehicle $4,000.00
W’s 2004 Motor vehicle $1,000.00
H’s half-interest in the business C Pty Ltd $25,000.00
H’s household contents $5,000.00
W’s household contents $1,200.00
H’s bank account (minimal)
W’s Scotia Bank Visa Card Account $12,000.00
Total for husband: $329,000.00
Total for wife: $14,200.00
Liabilities H W
H’s Mortgage on B Street, Suburb G, NT $159,000.00
Total for husband: $159,000.00
Total for wife: Nil
Net Assets: $170,000.00 $14,200.00
Superannuation
H’s Australian Superannuation $74,999.83
These figures do not include the husband’s outstanding amounts due in relation to spouse maintenance and child support pursuant to Canadian Court orders nor the amount due by the wife to the husband pursuant to Canadian Court order for costs of C$17,500
There are also substantial legal fees incurred by both parties and the debts incurred from borrowings from other people for litigation.
Contributions
As previously discussed the husband made a significant and substantial contribution at the commencement of the relationship by his savings of $120,000, small superannuation, a motor vehicle and some household goods. Taking into account the length of the relationship from the time of the marriage of the parties in January 2005 until the wife left Australia in November 2009 (almost five years) this is a significant contribution.
As previously indicated that parties agreed that during their relationship the contributions both financially and non-financially should be considered equal. Whether the date of separation is either November 2009 (when the wife left Australia travelling to Canada with R) or later in early 2010 is not a significant factor.
It is significant that at the time of the separation the wife had available to her substantial monies. These monies have all been used to pay significant legal fees. The husband has also reduced the available assets due to payment of legal fees. Rather than adding back the legal fees paid by both the husband and wife since the separation these payments are taken into account under s 75(2)(o).
Similarly. the Court takes into account the costs of travelling between Canada and Australia for litigation and for the husband to collect R. These factors will be brought into account as relevant factors rather than “adding back” figures.
Since the separation the husband has continued in his employment and as a result has increased his superannuation from approximately $49,000 in December 2009 to the current figure of approximately $75,000.
The husband has also established a business and had the benefit of the use of the income from that business.
Significantly, the wife has had the primary responsibility for the care of R and K. She has always been the primary carer for K since his birth in 2010 and was the primary carer for R from November 2009 until January 2011.
Since January 2011 the husband has had the primary responsibility for R with minimal support from the wife.
The substantial funds retained by the wife at separation and subsequently spent on legal fees is a significant factor to be taken into account.
The monies due to be paid by the wife to the husband pursuant to the Canadian costs order is also significant.
Section 75(2) Factors
(a)the age and state of health of each of the parties;
The parties are of a similar age.
Although the husband receives some treatment and incurs medical expenses, this does not prevent him from continuing to work and earn a reasonable income.
The Court is satisfied that there are no significant health issues in relation to the wife.
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
The husband continued in his employment during the relationship and after the separation. He has since formed a business and continues to receive income from that business.
The wife is a qualified scientist and has the physical and mental capacity for appropriate employment as a scientist. Her evidence was that she has not sought employment since K’s birth. Her evidence indicated that once K reached school age she would seek employment. In the meantime she has undertaken further studies.
I am satisfied that the wife has the physical and mental capacity for appropriate gainful employment. She has had support from members of her family. This will assist her to obtain employment and still have appropriate arrangements for the care of K.
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
Both parties have the care and control of a child.
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
The husband continues to have obligations in relation to the mortgage and as previously mentioned the care of R. The wife has the care of K.
I accept the evidence of the wife that she has an obligation to pay rent.
(e) the responsibilities of either party to support any other person;
Neither party has an obligation to support any other person except the child in their respective care.
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
It was submitted on behalf of the husband that the wife has an ability to secure social services payments in Canada if the child support were reduced to nil. This is not a significant factor. It would be inappropriate to treat this as a factor when determining the property settlement.
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
Both parties provide for a child of the marriage. I accept that the standard of living being maintained, or attempted to be maintained, by both parties is reasonable. This is not a significant factor to be taken into account when one also considers their capacity for gainful employment.
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
Both parties have qualifications and work experience. The wife has chosen to undertake further studies whilst caring for K. The husband has also been required to contribute spousal support during this period.
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant,
Not applicable.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
The time during which the parties lived together was short. The earning capacity of the parties was not affected save for each of the parties having child care responsibilities.
(l) the need to protect a party who wishes to continue that party’s role as a parent;
Both parties wish to continue in their role caring for a child of the marriage. K commenced school in September 2014. This provides the wife with an increased opportunity for employment.
Any order made for the husband to provide spousal maintenance to the wife would reduce the husband’s capacity to provide for an appropriate standard of living for himself and R.
(m)if either party is cohabitating with another person – the financial circumstances relating to the cohabitation;
This factor is not relevant.
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage;
The husband is seeking an order by way of a departure order which would discharge any liability for either party to pay child support to the other. This will be a practical outcome for the parties.
(naa)the terms of any order of declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
Not applicable.
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;
As previously indicated the Court takes into account that there has been considerable money spent on legal fees and travel costs associated with the Hague Convention proceedings in which the husband was successful. The Court also takes into account the debts due by both parties in relation to child support orders and spouse maintenance orders, together with the specific order of the Canadian Court requiring the wife to pay the husband’s legal costs of C$17,500 (with the allowed offset) now fixed at C$11,000.
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
These factors are not applicable.
The significant factors being brought into account are the husband’s substantial initial contribution of approximately A$120,000, the debts incurred by both parties arising from the litigation brought about by the wife’s travel to Canada and the Hague Convention proceedings, the income earning capacity of both parties, the ongoing responsibilities of each of the parties to care for a child of the marriage, the short period of cohabitation and the husband’s contribution to the increased value of the superannuation since the separation.
In particular the Court also takes into account the reduction of the available assets caused by the wife spending $100,000 on legal fees.
During the hearing the husband agreed that he would deliver up to the wife in Darwin “upon her next attendance in Darwin” the personal possessions, two blankets, mixer, CDs and books.
This related to personal items which the parties agreed were items belonging to the wife and which she left in Darwin when she moved to Canada. That order will therefore be included in the final orders.
Conclusion
Considering the length of the marriage of the parties and the contributions of the parties during the period they resided together, the steps taken since the separation of the parties and the impact upon the financial circumstances of the parties, it is just and equitable for there to be an order for property settlement pursuant to s 79 (Stanford v Stanford (2012) 247 CLR 108 and Bevan & Bevan (2004) FamLR 387).
It is also just and equitable for the Court to take into account when considering the orders to be made, the Canadian orders in relation to child support, spouse maintenance and costs, and the Australian child support assessment.
It is just and equitable for the property settlement orders to deal with these outstanding debts to bring about finalisation of the financial arrangements between the parties where possible.
This takes into account the provisions of the international child support and spouse maintenance legislation. The significant factors in this matter are as previously set out, the substantial funds spent by the wife since separation on legal costs and the need for the husband to spend substantial funds on legal costs and travel as a result of the wife’s refusal to return from Canada to Australia.
Whilst on the face of it the husband retains the equity in the real estate this was an asset which he had acquired using funds which he owned prior to the relationship with the wife. His superannuation has also increased substantially since the parties’ separation.
Taking into account these factors and the short period during which the parties cohabited the orders which provide for the wife to be relieved from her responsibility to pay the Canadian costs order, orders which provide for each party to be relieved of any payment of child support for the child that is not in their care and an allocation to the wife of an amount from the husband’s superannuation fund will result in orders which are just and equitable in all of the circumstances.
The orders sought by the husband in relation to the property settlement, child support and spouse maintenance are orders which are just and equitable.
The orders are therefore set out at the commencement of this judgment.
I certify that the preceding one hundred and twenty-seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 27 October 2015.
Associate:
Date: 27 October 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Jurisdiction
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Remedies
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Costs
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Appeal
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Procedural Fairness
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