Sykes and Sykes
[2016] FCCA 1956
•9 August 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SYKES & SYKES | [2016] FCCA 1956 |
| Catchwords: FAMILY LAW – Property – section 79A application – elements not established – application dismissed. |
| Legislation: Family Law Act 1975 s.79A |
| Cases cited: Sykes & Sykes [2013] FamCA 922 Garden & Gavin (No.2) [2010] FamCAFC 125 Simpson & Hamlin (1984) Fam LR 1040 |
| Applicant: | MR SYKES |
| Respondent: | MS SYKES |
| File Number: | SYC 950 of 2009 |
| Judgment of: | Judge Boyle |
| Hearing date: | 8 July 2016 |
| Date of Last Submission: | 8 July 2016 |
| Delivered at: | Wollongong |
| Delivered on: | 9 August 2016 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Solicitors for the Applicant: |
| Counsel for the Respondent: |
| Solicitors for the Respondent: | King Legal Pty Ltd |
ORDERS
The husband’s application filed 1 July 2014 is dismissed.
The wife’s amended response filed 14 June 2016 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Sykes & Sykes is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 950 of 2009
| MR SYKES |
Applicant
And
| MS SYKES |
Respondent
REASONS FOR JUDGMENT
Applications
The husband filed an initiating application on 1 July 2014, amended on 25 May 2016, seeking that property orders of 25 August 2010 be set aside. He seeks that $11,000 transferred from his (omitted) Super account be returned and that the wife pay to him $79,806.67. That is a sum equivalent to 80 per cent of the proceeds of sale of the former matrimonial home, less the amount the husband has already received. He further seeks that $1,644.50 in the Turner Freeman trust account be used to pay the balance owed to Ashley Smith & Partners, who sold the former matrimonial home on the parties’ behalf. Those orders are reflected in his case outline document. He relies on the affidavit he provided filed 25 May 2016.
The wife opposes the orders sought by the husband. In an amended response filed 14 June 2016, she sought orders for the husband’s application to be dismissed, orders with respect to payment of monies by solicitors Ashley Smith & Partners to the wife, including the whole of a sum incurred by her for storage costs. The wife sought orders relating to overseas travel for X and that the consent of the husband be dispensed with for the purposes of obtaining a passport and that leave be granted for the wife to file an application for parenting orders to be varied. The wife relied on a case outline, wherein orders broadly consistent with the response were contained.
On 1 April 2016 the matter was set down for hearing of the husband’s section 79A application. The husband has had limited opportunity to consider the amended response sought by the wife on 14 June 2016. No directions have been made with respect to the matter being dealt with on what is essentially a Rice & Asplund argument, without any indication of parenting orders sought and the issue of a passport for the parties’ child X.
I indicated to the parties that I was not prepared to deal with leave for re-opening of the parenting matter. It would be unfair to the husband, who is unrepresented for the matter to be dealt with in this way. This matter has been on foot since July 2014 and the first time that any issue relating to the child was raised was 14 June 2016. The wife can make an application for leave in the usual course should she choose to do so with respect to X. If the wife chooses to bring an application, she needs to specify the variation to the prior parenting orders sought. There is no evidence of a plan for any overseas holiday necessitating a passport. The solicitors Ashley Smith & Partners were not present at court and there is no evidence they have been served with the amended response sought by the wife. The wife’s amended response is dismissed.
The Exhibits
The following exhibits were tendered.
a)Exhibit CRT1. The parties’ judgment in the Family Court, published as Sykes & Sykes [2013] FamCA 922.
b)Exhibit W1. The husband’s initiating application filed 25 November 2010.
c)Exhibit W2. Husband’s application in a case filed 16 July 2012.
d)Exhibit W3. Bundle of correspondence between Coleman Greig Lawyers and the husband and a copy of his affidavit filed 4 February 2013.
e)Exhibit W4. Child Support Assessment issued 10 July 2015 for the assessment period 31 July 2013 to 26 November 2013.
f)Exhibit W5. Child Support Assessment issued 10 July 2015 for the assessment period 19 April 2014 to 31 January 2015.
g)Exhibit W6. Child Support Assessment issued 10 July 2015 for the assessment period 27 November 2013 to 31 January 2014.
h)Exhibit W7. Letter from Child Support Agency to wife, dated 10 July 2015.
i)Exhibit H1. Child Support Assessment issued 27 January 2016.
j)Exhibit H2. Husband’s CSA Online printout, accessed 7 July 2016.
Background
The parties commenced cohabitation on or about February 2005 and were married on (omitted) 2005. X was born on (omitted) 2006. The parties separated in 2008.
On 12 July 2010 parenting issues were resolved between the parties by consent orders for X to live with her mother and spend time with her father on a gradually increasing basis. The mother was restrained from moving X’s residence outside the metropolitan area of Sydney.
Property orders were made by consent by Judge Sexton on 25 August 2010. There is nothing on the face of the orders that refers to any particular fact or circumstances that underpinned the parties’ agreement to the orders.
There were further disputes between the parties. The mother moved to the (omitted) in January 2013 with X. Orders were subsequently made for X to return to her school in Sydney and she commenced residing with her father. Thereafter X spent time with the mother, at least from 22 March 2013, on an alternate weekend basis.[1]
[1] Sykes & Sykes [2013] FamCA 922, para 112 per Rees J.
There was a contested parenting hearing before Justice Rees in the Family Court. Both parties sought financial orders: on the husband’s part to vary the order for the distribution of the proceeds for sale; on the mother’s part to retain the property and payment of some monies by the husband. Neither of the parties articulated orders as being pursuant to section 79A, the trial judge noting “a reading of their affidavit material in support of their applications did not reveal any ground on which section 79A could have been invoked”.[2] Consequently the applications with respect to financial matters were dismissed. The evidence upon which Justice Rees made her finding was not before this Court. The wife did not properly articulate a res judicata argument. The husband’s current s79A application was heard on its merits.
[2] Ibid para 35.
Orders were made for X to live with the father, that he have sole parental responsibility and that X spend time with the mother, inter alia, on alternate weekends from after school Friday to before school Monday and school holidays. Unfortunately there have been continued issues between the parties with respect to X. I note that there was no appeal from those orders.
There has been an ongoing issue with child support. Various documents from the Child Support Agency (“CSA”) were tendered in these proceedings by both parties. The current arrears of the wife are $4,780.05[3]. It is unclear precisely what period those arrears arose from. There have been times that the wife’s assessment has been nil[4] and other times it has varied, such as $254.25 per month[5] and $241.17[6].
[3] Exhibit H2.
[4] Exhibit W7.
[5] Ibid.
[6] Exhibit H1.
The current assessment was issued on 27 January 2016, requiring that the wife pay the husband $334.42 per month. It is common ground that this has not occurred. The husband says that he has asked the Child Support Agency to enforce the matter. He was apparently advised they have had difficulty locating the mother. The CSA has corresponded with the wife, as evidenced by exhibits W4, W5, W6 and W7. There is no evidence of the husband pursuing remedies available under the Child Support legislation.
There was a significant delay in compliance with the property consent orders of 2010. Those orders have now been complied with. There was then an extraordinary delay by the solicitors acting on the conveyance in distributing the proceeds of sale, although that has now occurred.
The Law
Section 79A of the Family Law Act 1975 deals with setting aside orders altering property interests:
(1) Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that:
(a) there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance; or
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order; or
(d) in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; or
(e) a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage;
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The husband relied on section 79A(1)(d) to set aside the consent orders of 25 August 2010. In submissions, he sought to rely additionally on section 79A(1)(c). He was not permitted to do so in circumstances where the case was conducted on the basis of section 79A(1)(d). In any event, it would not have assisted him to do so given that the orders have now been carried out and the monies disbursed pursuant to the orders.
There was an issue that order 1 of the 2010 property orders had not been complied with by the wife. That order specified that within 21 days, the wife make available for collection by the husband the cutlery set given to the parties at the time of the marriage and CDs of family photographs from at least the time of X’s birth to the present, including family photographs including Ms S. The husband provided no evidence on this issue. The matter arose during cross-examination, as to whether that order had been complied with by the wife. Given the paucity of evidence on that subject, no finding could properly be made.
For orders to be set aside pursuant to section 79A(1)(d), there must be circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child[7].
[7] Garden & Gavin (No.2) [2010] FamCAFC 125.
It is clear that there have been different arrangements put in place with respect to the care of X over the years and that she is spending significantly less time with the mother than she was at the time that the property orders were made. At that time X lived with the mother.
The wife lives on the (omitted) and works on the (omitted). There has been an ongoing difficulty with her being able to collect X from school on Friday. The husband refuses to permit Ms S, the wife’s 20 year old daughter from a previous relationship, to collect X from school. When cross-examined about this, he said that turning 18 does not make someone an adult. He went on to say: “The mother, Ms S and I do not speak. They have taken AVO’s against me. Why would I do anything to help them.”
It was suggested to the husband in cross-examination that he did not agree to the wife collecting X from after school care. He disagreed and said that provided the wife told him when she would be collecting X from after school care, he would agree to that and notify the after school care accordingly. It appears the husband was suggesting this should happen on each and every occasion that the wife intended to collect X from after school care. It is difficult to understand why it would be necessary on each and every occasion, particularly when there is evidence of poor or no communication between the parties.
A further difficulty related to the parties’ inability to communicate, has been which weekend X should be spending with the mother and when time should occur in the school holidays. There has been no agreement: the husband complains the mother has not attended; the mother complains about times she has attended and X was not available. The parties agreed during the proceedings that the wife’s weekend time with X would resume on 29 July 2016 and continue on an alternate weekend basis. Weekend time should resume on the first weekend of term if it took place on the second last weekend of school term and on the second weekend of term if it occurred on the last week of term. Hopefully this agreement between the parties will enable time to occur.
The ongoing difficulties with these arrangements have meant that X has not spent the time with her mother as anticipated by these orders. There has, however, been some contact as referred to in the wife’s affidavit. There was no challenge by the husband about the particular dates and times that the wife sets out.
The court must be satisfied of three elements before setting aside orders under s79A(1) (d)[8]:
a)There must be circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development.
b)It must be demonstrated that the applicant will suffer hardship if the court does not vary or set aside the orders and make another order in substitution.
c)The Court may vary the orders if, in the exercise of its discretion, it considers it appropriate and consider what other order should be made in substitution.
[8] Garden & Gavin (No.2) [2010] FamCAFC 125.
Circumstances of an exceptional nature
Unfortunately, difficulties with time arrangements are not an unusual circumstance in proceedings before this Court:
A change in the responsibility for the daily care and control of children of a marriage, after the making of a property order under s 79 of the Family Law Act could not be held of itself to be an unusual circumstance… The question was whether the change which occurred in this case was beyond the ordinary circumstances in which such a change may occur.[9]
[9] Simpson & Hamlin (1984) Fam LR 1040 at 1044.
It is a question of fact and degree. Some of the problems that have caused a diminution of the mother’s time with X are of the husband’s own making, as referred to in problems of collection of the child by her sister. In the circumstances of this case I do not find that the circumstances are of an exceptional nature in relation to the care, welfare and development of a child.
These parties have been in litigation over a period of approximately 8 years, after a marriage of 3 years. There has been an ongoing dispute with respect to X, with final orders made in 2010, followed by various interim orders, contravention applications and culminating in the final orders of November 2013 after a contested hearing.
Hardship to the applicant
The property orders were made by consent. There is no evidence before me on which I could determine the basis for those consent orders being agreed between the parties. The wife refers to the fact that it was a short marriage and that she made the overwhelming financial contributions. The husband suggests that the orders were made at least in part on the basis that X would be living primarily with the wife. I cannot make any finding with respect to either of those propositions.
It is important that litigation is brought to an end. As their Honours refer to in Simpson & Hamlin[10]:
It is not sufficient that it appears that circumstances have arisen of an exceptional nature resulting in hardship to the applicant. The court must consider in the exercise of its discretion whether that hardship is of such a serious nature, and results in such inequity that it can only be rectified by the extreme step of setting aside all varying and existing order of the court.
[10] (1984) Fam LR 1040.
The husband has put no specific evidence before the Court of what hardship he would suffer if the Court did not vary or set aside the order, despite being invited to do so. Instead he referred to this as being, “what’s fair for X”.
The husband has remedies available to him through the Child Support legislation with respect to arrears, and an assessment that the wife is not paying. He has availed himself of that option.
The husband has not satisfied the Court of the matters required pursuant to s79A (1) (d) and consequently his application is dismissed.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Boyle
Date: 9 August 2016.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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