Suiter & Suiter
[2016] FamCAFC 72
•10 May 2016
FAMILY COURT OF AUSTRALIA
| SUITER & SUITER | [2016] FamCAFC 72 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant asserts that the orders made were not congruent with existing orders and were made on the basis of findings not supported by the evidence or on irrelevant matters – Where it is also asserted that the trial judge failed to properly determine the applications of the parties before her and in so doing failed to apply the provisions of s 129 of the Child Support (Assessment) Act 1989 (Cth) and failed to give adequate reasons for her decision – Where there is no merit in any of the grounds of appeal – Where no useful purpose would be served in granting leave to appeal in circumstances where the grounds of appeal have been found to be without merit – Leave to appeal dismissed. FAMILY LAW – APPEAL – ADDUCE FURTHER EVIDENCE – Where the further evidence would only be relied upon in the event of substance being found in the appeal and the discretion re-exercised – Where leave to appeal was refused – Application to adduce further evidence dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent sought her costs on an indemnity basis – Where there is no basis to order indemnity costs – Where there are circumstances justifying an order for costs in the respondent’s favour – Costs ordered on a party/party basis to be assessed in default of agreement. |
| Family Law Act 1975 (Cth) – s 66L Child Support (Assessment) Act 1989 (Cth) – ss 100(2), 102, 141(1)(f), 141(3), 124 and 129. |
Family Law Rules (2004) (Cth)
| Apoda & Apoda and Anor [2013] FamCA 265 |
| APPELLANT: | Mr Suiter |
| RESPONDENT: | Ms Suiter |
| FILE NUMBER: | WA | 18 | of | 2014 |
| APPEAL NUMBER: | PTW | 501 | of | 2008 |
| DATE DELIVERED: | 10 May 2016 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Finn, Strickland and Ainslie-Wallace JJ |
| HEARING DATE: | 27 October 2015 |
| LOWER COURT JURISDICTION: | Family Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 3 July 2014 |
| LOWER COURT MNC: | [2014] FCWA 40 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Castiglione QC with Mr Cridland |
| SOLICITOR FOR THE APPELLANT: | GG Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Dowding SC with Ms Kerr |
| SOLICITOR FOR THE RESPONDENT: | DCH Legal Group |
Orders
The application for leave to appeal the orders made by the Honourable Justice Crisford on 3 July 2014 be dismissed.
The application to adduce further evidence filed on 9 October 2015 be dismissed.
The husband pay the wife’s costs of and incidental to the application for leave to appeal referred to in Order 1 of these orders on a party/party basis with such costs to be assessed in default of agreement.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Suiter & Suiter has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: PTW 501 of 2008
File Number: WA 18 of 2014
| Mr Suiter |
Appellant
And
| Ms Suiter |
Respondent
REASONS FOR JUDGMENT
This is an application for leave to appeal, and if leave is granted, an appeal by the husband, Mr Suiter, against certain orders made by Crisford J on 3 July 2014 in proceedings between the husband and the wife, Ms Suiter. It will be more convenient to explain the orders sought to be appealed after first providing some explanation of the factual and procedural context in which they were made.
As her Honour recorded in the opening paragraphs ([1] – [8]) of her reasons for judgment in relation to the orders now sought to be appealed:
·the husband and the wife had on 25 August 2010, after a nine day trial before her Honour, entered into consent orders concerning property and child support issues and also into a financial agreement concerning spousal maintenance issues;
·the orders in relation to child support made by consent on 25 August 2010 included provision for the husband to pay periodic child support for and certain other expenses in connection with the four children of the parties’ marriage (Order 6), as well as for him to pay the outgoings on and the repair and maintenance costs of the home in which the wife and children lived (which was apparently situated on two properties, being … and … G A) (Order 8);
·on 14 January 2013 the wife filed an application to enforce the child support consent order relating to the payment by the husband of the costs of the home (Order 8);
·on 11 July 2013 the wife filed a further application seeking that the husband pay adult child maintenance for the parties’ eldest child who had turned 18 in April 2013.
Both of the wife’s applications were heard by Crisford J on 12 and 13 December 2013 and 23, 29 and 30 April 2014. Shortly we will refer more fully to the wife’s applications which were before her Honour and also to the husband’s responses to those applications.
During the course of the hearing before her Honour, orders were made by consent on 28 April 2014 discharging the child support order made by consent on 25 August 2010 which provided for the periodic child support and other expenses of the children which were to be paid by the husband (Order 6) and substituting a new order providing for the matters which had been the subject of the discharged Order.
On 3 July 2014 her Honour delivered reasons for judgment and made orders which required the husband to pay child maintenance for the parties’ eldest child (pursuant to s 66L of the Family Law Act 1975 (Cth) (“the Act”)), and which also required him to pay certain other expenses in relation to the repairs to and maintenance of the home in which the wife and children resided.
The husband now seeks to appeal certain of the orders made on 3 July 2014 concerning the payment by him of expenses in relation to the family home.
Before setting out the terms of the orders sought to be appealed, and also the grounds on which leave is sought to appeal those orders and the grounds of appeal if leave is granted, it is necessary by way of background to refer to the terms of Order 8 of the child support consent orders made on 25 August 2010, and also to the parties’ applications which gave rise to, and to Crisford J’s reasons for judgment in relation to, the orders now sought to be appealed.
Order 8 of the consent orders of 25 August 2010
The terms of the consent orders made on 25 August 2010 which required the husband to pay expenses in relation to the home in which the wife and children lived, and which appeared in the minute of consent order under the heading “Child support”, were as follows:
8.For such period as … [G A] or such other residence of which the wife is the sole registered proprietor (“the replacement residence”) shall remain the principal place of residence of the wife and not less than one dependent child of the marriage under the age of 18 years, the husband pay or cause to be paid, as and by way of further child support:
(a)All fixed outgoings on … [G A] or the replacement residence and being local authority rates and taxes and rates and taxes paid for the utilities to the property;
(b)Premiums for the continued insurance of the house and contents;
(c)The cost of all and any necessary and required maintenance and repairs to the property and surrounds and which are subject of prior agreement between the parties; and
(d)Notwithstanding any other order herein, whilst … [G A] shall remain the principal place of residence of the wife and not less than one dependent child of the marriage under the age of 18 years all fixed outgoings on … [G A] and being local authority rates and taxes and rates and taxes paid for the utilities to the property and the cost of all and any necessary and required maintenance and repairs to the property and which are subject of prior agreement between the parties.
For present purposes it is relevant to note that the final order contained in the minute of consent orders provided that an application of the wife (which had been filed on 21 July 2010 and which, while not before us, apparently sought the orders for the husband to meet the expenses of the children’s home) was “adjourned with liberty to apply”.
Applications in relation to Order 8 of the consent orders
At the hearing before Crisford J in December 2013 and April 2014 (referred to at [3] above) the wife’s final application as identified in her amended minute of final orders sought, was for the following orders, sought under the following headings (with markings indicating amendments and some details removed):
Enforcement Orders
1. The husband pay forthwith or forthwith cause to be paid forthwith:-
(a)To the wife the sum of $6,908 in reimbursement to her of costs paid by her for repairs, maintenance and replacements in and around … [and …] [G A] (‘the home’); and
(b)At the direction of the wife, and within seven days of receiving relevant invoices, the costs of supplies and labour directly related to:-
(i)painting to the interior and exterior of the home. Estimated cost $75,685.50.
(ii)repair of cork floors including re-sanding and re-coating. Estimated cost $800.00.
(iii)replacement of MRS surround sound system. Estimated cost $8,971.00.
(iv)replacement costs of repairs to kitchen cabinet including cabinet door. Estimated cost $308.00.
(v)[Deleted]
(vi)dynalite light system. Estimated cost unknown…
(vii)purchase and installation of replacement carpets in all currently carpeted rooms. Estimated cost $19,230.00;
(viii)repair of the limestone wall in accordance with the quote obtained by the wife; or for the work recommended by the single expert…
Interpretation and re-definition orders
2.By way of implementation of paragraphs 8(c) and 8(d) of the Orders dated 25 August 2010, the terms “repairs and replacement” be defined as including:-
(a)Repairs, maintenance, and replacement where beyond repair, to existing fixtures and fittings in and around … and … [G A] including:-
(i)Pool repairs, maintenance, and replacement of components where beyond repair…
(ii)Garden including lawn mowing…
(iii)Electrical repairs, maintenance and replacement when beyond repair of all associated electrical equipment, fixtures and fittings.
(iv)Dynalite – this relates to the built in touch panel lighting system in the home.
(v)Plumbing - all plumbing repairs, maintenance and replacement of associated fixtures and equipment when beyond repair.
(vi)General maintenance and repairs, including garage roller door repair …, air conditioning repairs and maintenance … and replacement if system is beyond repair, door locks, painting, damage to walls, and cabinetry.
(vii)Structural repairs – repairs, maintenance and replacement where beyond repair of all structural elements…
(viii)White goods repair, maintenance and replacement where beyond repair…
(ix)Security monitoring, maintenance, repair and replacement of all associated equipment, …
(x)Computers - repairs to Wifi and … to children’s computers.
(xi)Multi room system (MRS) … – repair of system, replacement of system as when beyond repair.
(xii)Replacement of television when existing one beyond repair.
(b)Costs of labour and supplies for the replacement of existing fixtures and fittings as and when repair is no longer viable including:-
(i)Replacement of the fixtures and fittings and infrastructure referred to at paragraph 2(a) hereof.
(ii)Labour and supplies and call out fees for quotes for any work necessary and reasonably required to effect the necessary repair and/or replacement, referred to at paragraph 2(a).
3.A new paragraph 8A be included in the orders:-
In relation to the necessary and required maintenance and repairs to the properties at … and … [G A] and surrounds, the wife be required to obtain quotations to be presented to the husband as follows:
(a)For any item less than $1,500 a quote shall not be required;
(b)For any work up to $5,000, the wife shall be required to obtain one quote;
(c)For any item over $5,000, the wife shall be required to obtain two quotes;
(d)If the item is beyond repair or it [sic] cheaper to replace the item than repair it, the cheaper option is to apply.
4. The husband is to make payments to either the provider of the goods or services or if the payment has already been made by the wife, to reimburse her, within 14 days of receipt of the invoice or receipt for the goods or services
At the hearing in December 2013 and April 2014 the husband’s final position as identified in his further amended minute of orders sought, and so far as presently relevant, was (again with markings indicating amendments and some details removed):
1.That paragraphs … 8 of the Orders made on 25 August 2010 … be discharged.
…
4.That as and by way of child support, and for 18 months from the date of these Orders only, the Husband pay or cause to be paid the following outgoings for the property known as … and … [G A] and which is the Wife’s principal place of residence:
a.the water rates…
b.the shire or council rates…
c.premiums for the building insurance only;
d.repairs and maintenance … where such repairs and maintenance are required to render the home functional, habitable and safe, and defined to include only:
i.repairs to the Dynalite system;
ii.electrical repairs and maintenance to light fixtures where safety is an issue
iii.repairs and maintenance to plumbing;
i.repairs and maintenance to the air conditioning, …
ii.repairs and maintenance to the roof tiles…; and
iii.security system maintenance and repair.
5.That the Wife obtain three quotes for the repair of any items defined above and provide those quotes to the Husband in writing and for the Husband to then authorise and pay for any repair or replacement.
6.That in the alternative to paragraphs 4 and 5, and within 14 days of the date of Orders, the Husband pay to the Wife the sum of $68,250.00 calculated on the basis of Annexure “A” and for paragraphs 8(c) and 8(d) of the Orders made on 25 August 2010 to be discharged on the basis that the Husband has no further responsibility for any repairs and maintenance for the [G A] residence.
Reasons for judgment of the primary Judge
Following the hearing in December 2013 and April 2014, Crisford J delivered reasons for judgment on 3 July 2014.
After providing the background to the proceedings (which we have summarised earlier at [2] of these reasons), her Honour identified the issues which were before her, with the first issue being adult child maintenance for the parties’ eldest child, and the second issue, being in her Honour’s words, as follows:
10[The wife] wants to have the costs of certain repairs and maintenance carried out on her home at … [G A] to be paid (or if already paid, reimbursed). On the other hand [the husband] seeks that these orders in relation to child support be varied.
11It is common ground between the parties that there is uncertainty in relation to some aspects of the child support orders and these need to be redefined with more precision. However, [the wife] maintains there is no reason to completely vary the orders given the parties earlier agreement. She says there is no real change in her or the children’s circumstances. She seeks clarification of the orders. Although [the husband] acknowledges he has the financial capacity to comply with the orders, he says they should be varied, in part, due to a change in [the wife’s] circumstances such that she can also contribute to the children’s expenses.
After determining that the husband should pay adult child maintenance for the eldest child (which was a decision not ultimately sought to be appealed by the husband), her Honour returned to the second issue which she had earlier identified saying:
61Both parties seek that changes be made to the Child Support orders made by consent on 25 August 2010. The degree to which each seeks a change or clarification differs. The basis upon which such a change is sought also differs.
Jurisdiction
62[The wife] says the orders are to be changed taking into account s 66S of the Act. [The husband] says that the orders are to be discharged or varied taking into account s 129 of the Child Support (Assessment) Act 1989 (Cth) (“CSA”) which deals with the modification of existing child support orders.
After some discussion, her Honour concluded at [71] that Order 8 of the orders made by consent on 25 August 2010 was “an order for the provision of child support otherwise than in a periodic amount” (that is, an order made under s 124 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) and that s 129 of the Assessment Act “mandates” how such an order “can be modified”. These conclusions by her Honour were not challenged before us, and in our view, they are correct.
Her Honour then set out the first three of the twelve sub-sections of s 129 of the Assessment Act, and it will be convenient for us also to do so at this point:
Modification of orders under Division
(1)If an order under section 123A or 124 is in force in relation to a child (whether or not all things ordered to be done by the order have been done):
(a) the court that made the order; or
(b)another court having jurisdiction under this Act in which the order has been registered;
may under this section, by order:
(c) discharge the order; or
(d)suspend its operation wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(e)if the operation of the order has been suspended under paragraph (d) – revive its operation wholly or in part; or
(f)subject to subsection (3), vary the order (including any matter specified under subsection 123A(3), or any statement made under section 125, included in the order) in any way.
(2)The court must not make an order under subsection (1) in relation to the order under section 123A or 124 unless the court is satisfied, having regard in particular to any matter specified under subsection 123A(3), or any statement made under section 125, that it would be:
(a)just and equitable as regards the child, the carer entitled to child support and the liable parent concerned; and
(b) otherwise proper;
to make the order.
(3)The court must not, by order under subsection (1), vary an order unless it is also satisfied:
(a)that making the variation is justified because of a change in the circumstances of the child, the carer entitled to child support or a liable parent concerned since the order was made or last varied; or
(c)that making the variation is justified because of a change in the cost of living since the order was made or last varied; or
(d)in a case where the order was made by consent—that the order is not proper or adequate; or
(e)that material facts were withheld from the court that made the order or from a court that varied the order, or that material evidence previously given before such a court was false.
Her Honour next (at [73] – [76]) again explained the parties’ respective positions before her. She described the wife’s application as “a three pronged approach” being: a claim for reimbursement of costs paid by her amounting to $6,908 (although her Honour calculated this amount to be $5,509); a claim for future repairs, maintenance and replacement of certain specific items (amounting, according to her Honour, to “at least $200,000”); and “interpretation and redefinition” of Order 8(c) and (d) of the consent orders of 25 August 2010.
In relation to the husband’s position, her Honour recorded that because he disputed that “most items” sought in the first and second part of the wife’s claim fell within the description of maintenance and repairs, he opposed “most of the payments sought”. Her Honour also recorded that the husband sought “a discharge of almost all parts” of Order 8 and proposed “a significantly curtailed time frame for the duration of the orders”, and that alternatively, he proposed “a modest lump sum payment of $68,250 in lieu of ongoing and ad hoc payments”.
This explanation of the parties’ positions appears accurate in light of the content of the documents containing the orders finally sought by each of them which we earlier set out.
Having set out the parties’ positions, her Honour then observed:
77Given the inordinate difficulties the parties have had with their consent order, I consider it may be of some use to them both and to the children to attempt some clarification of it. They are not able to agree how it should work.
After referring to the payments that the husband had made and to his reasons for not continuing these payments, her Honour stated at [83] that she was “called upon to consider the manner in which each party has interpreted the consent orders”, and in this context she referred to a decision of Le Poer Trench J in Apoda & Apoda and Anor [2013] FamCA 265, where his Honour had “considered the law in relation to the interpretation of orders made by consent where the parties’ interpretations of the orders differed”, and concluded that in such circumstances “the following exercise should be conducted”:
a) Determine if there is any ambiguity created by the orders.
b)Whether there be ambiguity or not, identify the “surrounding circumstances” (other than the subjective intention of the parties) of the making of the orders and what has occurred thereafter to create the dispute, so far as those circumstances are such as might be available to assist in the construction of a contract.
c) Reach a conclusion in relation to the construction.
Her Honour then considered Orders 8(a) and (b) of the consent orders which she noted the wife did not want changed, but the husband wanted varied in certain respects. Her Honour concluded (at [95] – [96]) that Orders 8(a) and (b) “are clear and unambiguous”; that nothing had been put to her “to suggest that Orders 8(a) and (b) are neither proper or adequate”; and that she saw “no valid ground for any change”.
We did not understand these conclusions concerning Orders 8(a) and (b) by her Honour to be the subject of any real challenge before us.
Her Honour next proceeded to consider Orders 8(c) and (d), observing at [97] that the “real nub of this dispute revolves around the need to interpret” those orders as they relate to the following words (which, it will be recalled, appear in almost identical form in both Orders 8(c) and (d)):
The cost of all and any necessary and required maintenance and repairs to the property and surrounds and which are subject of prior agreement between the parties.
Her Honour then explained each party’s position in relation to Orders 8(c) and (d). Essentially the husband’s position, as described by her Honour, was:
98…that he will agree to maintenance and repairs to [G A] for 18 months if they are required to render the home functional, habitable and safe. He wants to reduce the scope of the order by confining it to the following:
· Repairs to the Dynalite system;
· Electrical repairs and maintenance to light fixtures where safety is an issue;
· Repairs and maintenance to plumbing;
· Repairs and maintenance to the air conditioning, with maintenance limited to one service in a 12 month period;
· Repairs and maintenance to the roof tiles of the residence; and
· Security system maintenance and repairs.
The wife’s position, as put by her counsel, and recorded by her Honour, was:
103… that orders 8(c) and (d) require a “natural” reading. She says that all and any maintenance and repairs are caught by the order, but concedes these must also be necessary and required.
After referring to certain authorities concerning the meaning of “repairs” and “maintenance” which she considered provided “a useful and practical guide” to what she had to decide, her Honour turned (at [110]) to “the three branches” of the wife’s application, which she considered “intersect(ed)” with the husband’s response and would “be dealt with together”.
Under the heading “Reimbursement of past expenses”, her Honour identified expenses relating to lawn mowing, window cleaning and dishwasher repairs, totalling $5,509. She determined that only the expense of repairing the dishwasher (at $272) came “within the definition in Order 8 (c)” and thus should be reimbursed by the husband (see [111] – [118] of her Honour’s reasons).
Her Honour next considered (at [119] – [130]) that part of the wife’s application which sought an “interpretation and re-definition of orders”. In so doing she first explained that the wife had provided a list of specific items needing repair and maintenance, but that before she considered any items individually, she would “deal with how each party says the orders need to be redefined as that will impact on any future requests of the wife”.
In relation to the husband’s attempt to “redefine” the orders, at least in terms of duration, her Honour said:
122I again reject [his] desire to moderate the duration of the orders. There was no convincing explanation why the orders should suddenly stop despite the children, or some of them, still being under 18 years and remaining at [G A]. These orders were negotiated after the parties had the benefit of legal advice, including Senior and Queens Counsel. In terms of their duration, they are clear and unambiguous. The orders are to run until the youngest child turns 18, not uncommon in child support orders. There was nothing put to me to suggest that there are grounds to limit the timeframe as sought by [the husband]. They are his children and he has to support them in the manner set out in the orders. The duration is proper and adequate. There will be no reduction in the timeframe of the orders.
In relation to the wife’s position, her Honour said:
123[Her] attempt to define the term “maintenance and repairs” also has little attraction. She seeks some further definition of the term “maintenance and repairs” but seeks it in isolation from the balance of the order. However, the order needs to be read as a whole.
Her Honour next referred (at [125] – [127]) to the evidence of the single expert witness, an engineer, Mr H, as to the condition of the home, before explaining in the following paragraphs that it was not possible to “redefine” the orders in the way the wife wanted, nor should the fact that the wife had re-partnered, which was a matter relied on by the husband as a reason for changing the original orders, be accepted as a reason for so doing:
129It is not possible to redefine the orders to capture everything likely to arise in the future. I do not intend to do as [the wife] suggests. I will make a decision in relation to the specific items of future payments she seeks and to generally make comments which are based on what I consider to arise from the case law and a reasonable interpretation of the current orders which capture the particular position of each party.
130I do not accept that the fact [the wife] has re-partnered and [her partner] lives within the household is such a change of circumstance that the orders should be modified. The orders are to benefit the children. Obviously, there is tension about what is for the children and what is for [the wife] and her partner, but each party wants the children to live comfortably, safely and in pleasant surrounds.
Then under the heading “Future payments”, her Honour set out the list of items of future work on the home and their estimated costs, which were contained in paragraph 1(b) under the heading “Enforcement Orders” in the wife’s amended minute of final orders sought (see [10] above). However, her Honour did not at that stage indicate whether she accepted the wife’s claim in respect of those items. Rather she moved immediately to consider whether the “definition in [Orders] 8 (c) and (d)” of the consent orders (being, presumably, the definition of the term “necessary and required maintenance and repairs”) included certain specific items, being largely, it seems, the items listed in paragraph 2(a) under the heading “Interpretation and re-definition orders” of the wife’s amended minute of final orders sought (again see [10] above).
Her Honour then (at [133]) expressly excluded from “the definition in 8(c) and (d)”:
·cleaning of the pool;
·garden work (save for repairs to reticulation);
·repairs to a coffee machine;
·multiple replacements of items such as televisions.
In order to “further aid clarification”, her Honour said that she accepted (at [134]) there should be repairs to the pool. It seems that she also accepted (at [135]) that there was a need for “electrical repairs and maintenance to most, but not necessarily all, items in the home”; that the security system “needs to be kept in good repair” and “in working order” (at [138]); and that the children’s computers may need repairing (at [139]).
Her Honour also noted (at [136]) that the husband agreed he was responsible within the terms of the consent orders for repairs to the Dynalite system, most plumbing repairs, certain general repairs (including a garage roller door), the air conditioning system, and broken roof tiles.
Finally in relation to specific items, her Honour noted, apparently relying on the evidence of Mr H, that work was needed to maintain the structural integrity of the limestone wall, and also on the multi-room system (“MRS”).
Some further insight into her Honour’s approach to the claims of both parties can be gained from her observations at [142] – [144] of her reasons, which followed her discussion of the specific items mentioned in the last four paragraphs:
142The house needs to be safe and functional for the children. The order is for child support in accordance with the parties’ means. [The husband] has no limit on his means, but that does not translate to provision of a standard of living for them that is luxurious or simply to match the neighbouring houses.
143In relation to the specific items sought by [the wife], I consider it appropriate to deal with them at this stage. I take into account the evidence of Mr [H], the age of the house, certain concessions made by [the husband] (eg replacement of the carpet) and the wear and tear arising from the children. However, the quotations may need to be updated. The replacement of the MRS system may require some negotiation as to what is appropriate.
144It is not possible for this Court to define these orders with the precision that either party wants. [The husband] gives a clear and very concise interpretation of the orders. However, such interpretation is not consistent with what is proper or adequate support for his children in their particular circumstances. [The wife], on the other hand, is over inclusive and appears reluctant to contribute physically or financially herself. I do not consider, once again, the attitude of either party reflects well on them. Most importantly, such attitudes militate against negotiation, compromise and co-operation.
Finally, her Honour noted (at [145]) that the parties agreed that there should be provision for the wife to provide quotes to the husband for work “the parties agree upon and which is required and necessary”. In addition to the arrangements concerning quotes agreed upon by the parties, her Honour determined that the husband should have the opportunity to obtain quotes for himself for any item over $15,000.
The orders in relation to the dispute concerning Order 8 of the consent orders then made by her Honour (in the form contained in, and numbered according to, her sealed orders) are as follows:
5. The [husband] forthwith pay to the [wife] the sum of $272 in reimbursement of costs paid by her for the repair of the dishwasher.
6.The [wife], and subject to order 5 [sic; semble Orders 8 & 9], the [husband], forthwith obtain quotes for the cost of supplies and labour relating to:
(i) Painting to the interior and exterior of [G A];
(ii)Repair of cork floors, in [G A] including re-sanding and re-coating;
(iii) Repair or replacement of MRS or like surround sound system;
(iv) Costs of repairs to door to kitchen cabinet;
(v) Dynalite system;
(vi)Purchase and installation of replacement carpets in all currently carpeted rooms.
7.The [husband] forthwith take all steps to ensure the repair of the limestone wall.
8.In relation to the necessary and required maintenance and repairs to [G A] and surrounds (or any replacement residence), the [wife] be required to obtain quotations to be presented to the [husband] as follows:
(a) For any item less than $1,000 one quote shall be required;
(b)For any work up to $5,000, the [wife] shall be required to obtain two quotes;
(c)For any item over $5,000, the [wife] shall be required to obtain three quotes;
(d)If the item is beyond repair or it is cheaper to replace the item than repair it, the cheaper option is to apply.
9.The [husband] be at liberty to obtain two quotes on any item relating to which the quotations of the [wife] exceed $15,000.
10.The [husband] is to make payments to either the provider of the goods or services or if the payment has already been made by the [wife], to reimburse her, within 21 days of receipt of the invoice or receipt for the goods or services.
11.The [wife] is to communicate with the [husband] on one occasion each month in relation to expenditure arising as a result of the said orders.
…
13.The applications otherwise be dismissed.
The orders sought to be appealed
In the husband’s original Notice of Appeal (filed 31 July 2014), it was stated that of the Orders made on 3 July 2014 (and as set out in the last paragraph) he appealed Orders 4 (which related to adult child maintenance) and Orders 5, 6 and 7. In an amended Notice of Appeal (filed 25 September 2015) it was stated that he appealed Orders 6 and 10 of the Orders made on 3 July 2014.
In neither his original Notice of Appeal, nor his amended Notice of Appeal had the husband sought leave to appeal the orders stated to be appealed notwithstanding that leave to appeal orders made under the Assessment Act is required under s 102 of that Act. However, at the commencement of the hearing before us, the husband sought (without opposition) and was granted leave to rely on a further amended Notice of Appeal (received by the Appeal Registry on 26 October 2015) in which he sought leave (if leave was required) to appeal Orders 6 and 10 of the Orders made on 3 July 2014.
Also at the commencement of the hearing before us, we gave the husband leave, over objection by the wife, to amend his further amended Notice of Appeal, to include an appeal (if leave to appeal be granted) against Order 13 (as well as Orders 6 and 10) of the orders made on 3 July 2014. In order to avoid prejudice to the wife, we granted this leave on the basis that, if at the conclusion of the hearing, senior counsel for the wife wished to have the opportunity to provide further written submissions to us, he would have that opportunity. Ultimately, however, that opportunity was not sought.
Later during the hearing of the appeal, we also gave the husband leave to amend the orders sought in his further amended Notice of Appeal in relation to the identification of one of the properties on which the family is situated. Given the conclusion that we will reach in these reasons, it is unnecessary to explain this amendment further.
It may assist an understanding of this matter, if we here repeat the terms of the orders made by Crisford J, which the husband now seeks leave to appeal, being Orders 6, 10 and 13:
6.The [wife], and subject to order 5 [sic; semble Orders 8 & 9] the [husband], forthwith obtain quotes for the cost of supplies and labour relating to:
(i)Painting to the interior and exterior of…;
(ii)Repair of cork floors, in … including re-sanding and re-coating;
(iii)Repair or replacement of MRS or like surround sound system;
(iv)Costs of repairs to door to kitchen cabinet;
(v)Dynalite system;
(vi)Purchase and installation of replacement carpets in all currently carpeted rooms.
…
10.The [husband] is to make payments to either the provider of the goods or services or if the payment has already been made by the [wife], to reimburse her, within 21 days of receipt of the invoice or receipt for the goods or services.
…
13.The applications otherwise be dismissed.
The husband’s complaints in support of the application for leave to appeal and the proposed appeal
The husband’s further amended Notice of Appeal contains six grounds of appeal, and it is stated in that document that those grounds provide the “substance” for the application for leave to appeal. We will therefore need to give consideration to the proposed grounds of appeal before determining whether leave to appeal should be granted.
Because of the inter-relationship between certain of the grounds of appeal and also because of an apparent, and in some cases acknowledged, overlap between the submissions made in support of many of the grounds, we propose first to provide an overview of the husband’s case before us by identifying the substance of each ground of appeal, but without at this stage determining whether there is merit in any ground. Only after we have thus been able to explain the husband’s case as a whole, will we determine if there is merit in his proposed appeal such as would warrant the grant of leave to appeal.
Ground 1 which, as drafted, is headed “Error of law – Failure to determine real issue / exercise of jurisdiction”, asserts that the primary judge erred by failing to consider and determine under s 129 of the Assessment Act, the parties’ applications for the discharge or variation (including the “re-definition”) of the earlier child support consent orders (notably Orders 8(c) and 8(d)), in particular the husband’s application to discharge those orders or vary them by specifying the items on the parties’ lists which constituted “necessary and required maintenance and repairs” or by substituting a lump sum child support payment.
Grounds 2 and 3, which were argued together, assert that her Honour erred in law in failing to consider or apply “the applicable legal rules”, being the provisions of s 129 of the Assessment Act, and to make the findings required under that provision, before making orders discharging or varying the earlier consent orders, in particular Orders 8(c) and 8(d).
Ground 4 asserts that her Honour erred in law by failing to provide reasons for not dealing with and/or dismissing the husband’s application to discharge or vary Order 8(c) and 8(d) and also for failing to provide reasons for her consideration of the matters required to be considered under s 129 of the Assessment Act.
Ground 5, as drafted, is headed “Error of law – Making of uncertain and incongruent orders / failure to exercise jurisdiction”, and is to the effect (as summarised in the supporting written submissions) that in making the new Orders 6, 8, 9 and 10 and not discharging the earlier consent Orders 8(c) and 8(d), her Honour has created inconsistency and lack of congruency between the two sets of orders, thereby increasing the ambiguity and uncertainty in the practical implementation of the orders.
Ground 6 then asserts a further error of law constituted by the taking into account of irrelevant matters or of making findings not open on the evidence. The alleged irrelevant matters or findings asserted not to have been open on the evidence are essentially matters relating to the husband’s wealth and to his attitude to the child support orders.
In addition to the complaints that the orders sought to be appealed were not congruent with existing orders and were made on the basis of findings not supported by the evidence or irrelevant matters, the essential complaints of the husband are therefore that her Honour failed to properly determine both of the applications which were before her (in particular that of the husband) and that in so doing and in making the orders which she did make, she failed to apply the provisions of s 129 of the Assessment Act and to give adequate reasons for her decision.
Discussion of the proposed grounds of appeal
There can be no doubt that the primary judge had before her applications both from the husband and from the wife.
As can be seen from her amended minute of final orders sought (at [10] above), the wife sought orders which she described as being “Enforcement Orders” (which included orders for reimbursement of funds she has already spent on repairs to and maintenance of the home as well as orders for future payments for repair or replacement of certain items), and as being “Interpretation and re-definition orders” (which included orders which would define the precise repairs, maintenance and replacements covered by the terms “repairs and replacement” in Orders 8(c) and (d) of the earlier orders and would thereby, it was stated, be by way of “implementation” of those orders, as well as orders which would provide for the obtaining of quotes for, and the payment of, the maintenance and repair work).
As can be seen from the relevant paragraphs from his further amended minute of orders sought (at [11]) above), the husband for his part sought the discharge in its entirety of Order 8 of the earlier consent orders. However, he also then sought that new orders be made, which either would only last for a period of 18 months and under which he would pay water and local authority rates, building insurance premiums, and the repairs and maintenance to six identified household items, and which were required to render the home functionable, habitable and safe, with the wife providing three quotes for him to authorise and then pay; or alternatively, would require him to pay the wife the sum of $68,250.00 within 14 days, with him then having no further responsibility for any repairs to, or maintenance of, the home.
That the husband was, in addition to opposing most of the wife’s claims, also seeking new orders which would modify the arrangements provided for in Orders 8(a), (b), (c) and (d) of the earlier consent orders was clearly recognised by her Honour at [76] of her reasons (see [18] of these reasons). Earlier she had also clearly recognised (at [71] of her reasons) that if there was to be any modification of the earlier orders, it would have to be done under s 129 of the Assessment Act (see [15] of these reasons).
To the extent that the new orders sought by the husband would have modified Order 8(a) and (b) (which provided for the husband to pay rates, taxes and insurance premiums on the home for so long as one of the children was under 18), her Honour was not prepared to make that change. As we have earlier noted, that decision is not now apparently challenged, and thus we need not discuss it further.
It has to be acknowledged that once her Honour (at [97] of her reasons) turned to consider the parties’ applications in so far as they were directed to Orders 8(c) and (d) of the earlier consent orders, it is not always entirely clear from her reasons which of the parties’ applications she was at any particular point dealing with. It also has to be acknowledged that for the most part her Honour’s main emphasis appears to have been on the wife’s application for “enforcement”, “interpretation”, and “redefinition” of the earlier consent orders, rather than on the husband’s application.
That having been said, however, it is clear from her Honour’s discussions under the heading “Interpretation and redefinition of orders” that she considered that the term “redefinition” would encompass the husband’s application to, in effect, vary the existing Order 8 by discharging it and replacing it with a new order. This is clear from what her Honour said at [122] of her reasons (which appears at [30] above).
It is also clear from [122] of her Honour’s reasons why she was not prepared to accept the variation of the original orders proposed by the husband at least in so far as that variation involved the duration of the orders. It is then further clear from her observations in her reasons at [129] and [130] (see [32] of these reasons) and at [142] – [144] (see [38] of these reasons) why she was not prepared to re-define more closely than she did the household items for the repairs and maintenance of which the husband was to be responsible.
Thus, to the extent that it is asserted in the proposed grounds of appeal, particularly Ground 1, that her Honour failed to consider and determine the husband’s application for the discharge of Order 8 and the making of a substitute order (including, as an alternative, an order for the payment of a lump sum instead of payment of specific repair and maintenance costs), there can be no substance in such an assertion. As we have demonstrated, her Honour well understood the husband’s application, she considered it, and by her Order 13 dismissed it. Her reasons for doing so can readily be understood.
As will have been seen from our summary of the grounds of appeal, there was considerable emphasis in the husband’s case before us on the requirements in s 129 of the Assessment Act which must be addressed before child support orders of the type represented by Order 8 of the consent orders can be modified, in the sense of varied or discharged. However, we agree with the submissions of senior counsel for the wife that if a court dismisses an application to modify such a child support order (such as was the husband’s application in this case), it is not making an order for modification under s 129, and therefore is not required to make the findings of fact necessary under, or apply the principles contained in, that section. To the extent that the grounds of appeal, notably Grounds 2 and 3, endeavour to assert to the contrary, and accordingly, establish error on the primary judge’s part, they could not succeed.
The further issues which arise in our consideration of the grounds of appeal overall, relate to the orders which her Honour did actually make, with the essential questions being, what was the nature of those orders, whether they were governed by the provisions of s 129 of the Assessment Act, and whether they can operate harmoniously with the provisions of Order 8(c) and (d) of the earlier consent orders.
In this context we need only concern ourselves with her Honour’s Orders 6 and 10 which apart from Order 13, which we have already discussed, are the only orders now sought to be appealed.
In seeking to uphold her Honour’s orders, senior counsel for the wife placed considerable reliance on the final order contained in the consent orders made on 25 August 2010 which, as we earlier explained at [9] of these reasons, gave the wife, and presumably also the husband, “liberty to apply”. It was thus submitted for the wife that the orders now sought to be appealed were only implementation or machinery orders made pursuant to the liberty to apply, and as such, were not subject to the requirements in s 129 of the Assessment Act.
We think that there is considerable force in that submission. In addition, we also think that Order 6, particularly with its use of the word “forthwith”, can be regarded as an enforcement order. It will be recalled that the six specific household items, which are the subject of Order 6, were all items which were included in the “Enforcement Orders” sought by the wife in her minute of final orders sought (see [10] above).
Enforcement of orders for child support other than in the form of periodic amounts, is subject to the provisions of the Act and Family Law Rules (2004) (Cth) (s 100(2) and s 141(3) Assessment Act). We have certainly not been persuaded that s 129 of the Assessment Act has any application in the making of such an enforcement order, at least where, as here, the enforcement order involves no more than providing a clarification or interpretation of, or machinery provisions for, an earlier order, and does not involve “modification” in the sense of a discharge, suspension of variation of the original order (cf. s 141(1)(f) Assessment Act). Thus to the extent that various of the grounds of appeal assert error on the part of her Honour in making Orders 6 and 10 without having applied s 129 of the Assessment Act, they would be without merit.
We also do not consider that there is any merit in the claim made in Ground 5 that Orders 6 and 10 (as well as Orders 8 and 9) of her Honour’s orders cannot operate consistently or unambiguously with the earlier consent Orders 8(c) and (d). As we have explained in the last several paragraphs, the new orders can be regarded as being either enforcement orders, or simply clarifying or machinery orders made pursuant to the liberty to apply. There is nothing to prevent further applications pursuant to that liberty, nor, of course, further applications for enforcement.
So far as Ground 6 is concerned, with its assertion that in making her orders her Honour took into account irrelevant matters, or made findings not open on the evidence, we have earlier explained that the matters or findings in question related broadly to the husband’s wealth or to his purported attitude to his child support applications. We need only say in the context of what is an application for leave to appeal, that we have considered the various matters and findings challenged which are particularised in Ground 6, and have concluded that the assertions made in that ground are without foundation.
Conclusion in relation to the application for leave to appeal
As we have found the proposed grounds of appeal to be without substance, no useful purpose would be served, at least in the circumstances of this case, in granting leave to appeal. Accordingly, the application for leave to appeal will be dismissed.
Application to adduce further evidence
There was also before us an application by the husband to adduce further evidence (filed on 9 October 2015). As we understood it, the further evidence would only be relied on in the event that we were to find substance in the appeal and then proceed ourselves to re-determine the applications which were before the primary judge. Given that leave to appeal is to be refused, nothing more needs to be said regarding the application to adduce further evidence.
Costs
In the event that either the application for leave to appeal, or the appeal, was unsuccessful, senior counsel for the husband acknowledged that it would be difficult for the husband to resist an order for costs.
In our view, the circumstances do justify an order for costs in the wife’s favour, but only on the usual party and party basis.
Senior counsel for the wife sought an order for indemnity costs on the basis of the husband’s financial circumstances, and also on the basis that originally the proposed appeal had been directed to the adult child maintenance order, but with that aspect of the appeal having later been abandoned. Given the relatively early abandonment of the appeal against the adult child maintenance order, indemnity costs would not be justified on that basis, nor indeed, in our view, on any other basis.
I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Ainslie-Wallace JJ) delivered on 10 May 2016.
Legal Associate:
Date: 10 May 2016
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