Tobin & Tobin (No 2)

Case [2024] FedCFamC1F 138

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Tobin & Tobin (No 2) [2024] FedCFamC1F 138

File number: BRC 8879 of 2021
Judgment of: HOWARD J
Date of judgment: 15 April 2024
Catchwords: FAMILY LAW – Child support – Where the parties were married in 2005 and separated in 2012 – Where the parties lived in Country B – Where the parties have two children aged 16 and 14 respectively – Where the children now live with the respondent mother in Region C – Where the husband still lives and works as a professional based in Country B – Where a consent order was made in the District Court of Country B in early 2014 relating to the division of the property of the parties to the marriage; the parenting arrangements for the children; and the payment of both spousal maintenance and child maintenance –  Where the Country B Order was registered in Australia in April 2021 – Where the applicant husband fully complied with his obligations for the payments of spousal maintenance and child maintenance pursuant to the Country B Order until December 2020 – Where the applicant husband now seeks to retrospectively discharge the spousal maintenance order – And where the applicant husband also seeks a variation of the child maintenance order (including a retrospective variation of the child maintenance order) – Where there is a “just cause” to discharge the spousal maintenance order (but not retrospectively) – Where the Court is not satisfied that the husband’s circumstances have changed so as to justify a variation of the child maintenance order.
Legislation:

Child Support (Registration and Collection) Act 1988 s 10

Family Law Act1975 (Cth) Pt VII and Pt VIII, ss 66, 72, 74, 75, 81, 83

Family Law Regulations 1984 (Cth) regulations 36, 38, 38A
Cases cited:

Astbury & Astbury (1978) FLC 90-494

Lutzke & Lutzke (1979) FLC 90-714

Tobin & Tobin [2022] FedCFamC1F 220

Tallant & Tallant [2015] FamCA 864

Vakil & Vakil (1997) FLC 92-743
Division: Division 1 First Instance
Number of paragraphs: 127
Date of last submission: 6 September 2023
Date of hearing: 20 and 21 July 2023
Place: Brisbane
Counsel for the applicant: Ms Oakley
Solicitor for the applicant: Daykin Family Law
Solicitor for the respondent: Litigant in person

ORDERS

BRC 8879 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR TOBIN

Applicant
AND:

MS TOBIN

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

15 APRIL 2024

THE COURT ORDERS ON A FINAL BASIS THAT:

1.Pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth):

(a)Order 3 of the Order of a Deputy District Judge made early 2014 in Country B be discharged as and from 15 August 2024.

2.The Further Amended Initiating Application filed on 21 July 2023 be otherwise dismissed.

3.This is a Provisional Order pursuant to Regulation 36, 38 and 38A of the Family Law Regulations 1984 (Cth).

4.IT IS DIRECTED THAT the Registrar of this Court shall send to the Secretary…

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AGLC
Tobin & Tobin (No 2) [2024] FedCFamC1F 138
Case
[2024] FedCFamC1F 138
Decision Date

CaseChat Overview and Summary

The case of Tobin & Tobin (No 2) involved a dispute between the husband, Mr. Tobin, and the wife, Ms. Tobin, who were married in 2005 and separated in 2012. The case before the Federal Circuit and Family Court of Australia (Division 1) concerned the husband's application to discharge and vary a consent order made in the District Court of Country B in early 2014. The order related to the division of the marital property, parenting arrangements for their two children, and the payment of spousal and child maintenance. The husband sought to discharge the spousal maintenance order and vary the child maintenance order, arguing that his financial circumstances had changed significantly. The wife contested these applications, maintaining that the husband's claims were unfounded and that he had not demonstrated a sufficient change in circumstances to warrant any variation to the maintenance orders.

The primary legal issue before the court was whether there was a "just cause" for discharging the spousal maintenance order and whether the husband's circumstances had changed to justify a variation of the child maintenance order. The court had to consider the husband's evidence regarding his income and expenses, as well as the independent financial documents submitted. The court's analysis revealed that the husband had significantly understated his income and failed to provide a satisfactory explanation for this discrepancy. The evidence demonstrated that the husband's income had remained relatively stable despite his claims of a significant drop. The court was particularly concerned that the husband had not disclosed a key document showing his most recent income until prompted by the court, indicating a lack of candor.

The court concluded that there was not sufficient evidence to support the husband's claim that the wife was able to support herself adequately, thus rejecting the husband's argument for discharging the spousal maintenance order retrospectively. However, the court did find that there was a "just cause" for discharging the spousal maintenance order from 15 August 2024. The court was not satisfied that the husband's circumstances had changed sufficiently to warrant a variation of the child maintenance order. The court's final orders discharged the spousal maintenance order from the specified date and dismissed the husband's application to vary the child maintenance order.

Orders

Orders of the court

BRC 8879 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR TOBIN

Applicant

AND:

MS TOBIN

Respondent

ORDER MADE BY:

HOWARD J

DATE OF ORDER:

15 APRIL 2024

THE COURT ORDERS ON A FINAL BASIS THAT:

1. Pursuant to Regulation 36 of the Family Law Regulations 1984 (Cth):

(a) Order 3 of the Order of a Deputy District Judge made early 2014 in Country B be discharged as and from 15 August 2024.

2. The Further Amended Initiating Application filed on 21 July 2023 be otherwise dismissed.

3. This is a Provisional Order pursuant to Regulation 36, 38 and 38A of the Family Law Regulations 1984 (Cth).

4. IT IS DIRECTED THAT the Registrar of this Court shall send to the Secretary within the meaning of Regulation 38A of the Family Law Regulations 1984 (Cth) a sealed and certified copy of:

(a) this Order;

(b) the Reasons for Judgment herein;

(c) the Affidavit of the husband filed on 29 June 2023;

(d) the Further Amended Financial Statement of the husband filed on 29 June 2023;

(e) the Affidavit of the wife filed on 29 June 2023; and

(f) the Financial Statement of the wife filed on 29 June 2023.

5. That all extant applications be otherwise dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It is claimed in paragraph 58 of the husband’s written submissions that:“Of most significance however is the fact that the concession does not alter his evidence that his expenses outweigh his income. This fundamental assertion remains unchanged.” A proper analysis of the evidence reveals that this submission is plainly wrong. The husband’s expenses do not outweigh his income. The most serious problem for the husband is that he significantly understated his total average weekly income – as it appear in Part B of his Financial Statement. The husband has not explained this error. The amount he included in that document was AUD$5,174 – but his most recent income document (Exhibit 2) shows a weekly income of AUD$9,639. Even the average of the amounts in Table 3 (above) show that the husband has significantly understated the estimate of his weekly income. The husband has all sorts of reasons and excuses as to why he maintains that his circumstances have changed and his income has dropped. A proper analysis of the evidence shows that the husband’s income does fluctuate. But a close consideration of the evidence relating to the husband’s income has led me to conclude that his circumstances have not changed – so as to justify his proposed variation to the child maintenance order. The husband complained that, by the end of the calendar year 2020 his income had dropped and he unilaterally decided to reduce the amount of child maintenance and spousal maintenance. But the evidence shows that in the financial years ended 31 March 2021; 31 March 2022; and 31 March 2023 – the husband’s income was substantially maintained at its relatively high levels. His allowances may have changed, his Productivity Pay may have changed – but as I noted earlier, there are swings and roundabouts in the husband’s remuneration package. Of particular concern to the Court is that Exhibit 2 was only produced to the Court at the Court’s insistence. I have mentioned this earlier. The conclusion I have reached is that this in fact shows a lack of frankness on the part of the husband. That document, evidencing his most recent income, should have been front and centre of his case. It should have been annexed to his trial affidavit. It indicates to the Court that the husband was not being open, candid and honest in the presentation of his evidence. In his affidavit he maintains that his income has dropped. The independent verifiable documents (in particular his tax returns and other tax documents) show that this is not correct. I rely on all of the Reasons provided earlier herein in relation to the husband’s income. Having come to the conclusion that the husband’s circumstances have not changed – as he has claimed – leads me to conclude (as I have noted) that there is no justification for the variation to the child maintenance orders based on the submission raised by the husband. Given that the Court will be ordering the discharge of the spousal maintenance order from August 15 2024 – the husband will thereafter have more disposable income available to him to ensure he complies with his child maintenance obligations.

Decision

Reasons for decision

I do not consider it necessary to make any further specific mention of any of the other subsections in s 75(2). I have taken all of the subsections into account. CONCLUSION IN RELATION TO WHETHER OR NOT THERE IS A “JUST CAUSE” FOR DISCHARGING THE COUNTRY B ORDER IN RELATION TO SPOUSAL MAINTENANCE The husband first argues that, as at the date of the hearing, the Court would be satisfied that there is a “just cause” for the spousal maintenance order to be discharged under s 83(1)(c). In this regard I note the written submissions on behalf of the husband and in particular I note paragraphs 29 – 50. In this part of his written submissions the husband relies upon the argument that the spousal maintenance order should be discharged on the basis that the threshold requirement in s 72 is not met, in that the wife does not satisfy the requirement that she is “unable to support herself adequately”. The Court has before it an application brought by the husband and the husband seeks a discharge of the Country B Order so far as it relates to spousal maintenance. The discharge is sought because, it is said, there is a “just cause” for the discharge. It is the husband who has brought this application and the onus is upon the husband to satisfy the Court or to persuade the Court that there is a “just cause” (Astbury & Astbury (1978) FLC 90-494 at page 77,562). It has to be kept in mind that the Court has a discretion as to whether or not the Country B spousal maintenance order should be discharged. Section 83(1) of the Act states that the Court “may … (c) discharge the order if there is any just cause for so doing”. As I have pointed out previously in these Reasons, the Court, in exercising its discretion pursuant to s 83(1)(c), is required to “have regard to the provisions of s 72 and s 75” of the Act (note s 83(7)). Having regard to sections 72 and 75 forms part of the process undertaken by the Court in deciding whether or not to exercise the discretion. I note what was said by the Full Court in Vakil & Vakil (1997) FLC 92-743 at page 84,018 and also in Lutzke & Lutzke (1979) FLC 90-714 (“Lutzke”) at page 78,832. The words “just cause” – “must be interpreted in the context of the Act as a whole, and in particular with regard to the other specific provisions of the Act which relate to maintenance”.[12] This includes, for example, section 81. I will return to this aspect later. [12] See Lutzke at page 78,832 per Lindenmayer J. The husband submits that the Court should conclude that the spousal maintenance order should be discharged and such discharge should operate retrospectively from December 2020. From that time the husband says it can be shown that the wife would have failed the threshold test in s 72(1) because she would not have been able to demonstrate that she was “unable to support herself adequately”. I am not convinced by this argument on behalf of the husband. There is not sufficient evidence for the Court to conclude that, as at December 2020, the wife was in a position to support herself adequately. There is no evidence of precisely what the wife was or was not doing at that time. I do not know precisely what commitments the wife had in respect of the raising of the children at that time – although there is evidence (in paragraph 43 of the wife’s affidavit, which I accept) to the effect that her duties in caring for the children were even more onerous. I do not know what time the wife had available to her (from December 2020) to devote to fulltime employment or any employment. There is no evidence in relation to whether there were suitable jobs available to the wife – within any area of her (previous) expertise or for which she was suitably qualified. Furthermore, I find it extraordinary that the husband would submit that he was disadvantaged because of the Covid-19 global pandemic – yet, he maintains that from (approximately) January 2021 when the pandemic was still upon us, the wife ought to have been able to get cracking and obtain suitable employment and earn an income to support herself adequately – keeping in mind that the wife had the primary care of the two children of the marriage during this time. Further, there is no evidence in relation to the health of the wife at that time or whether the wife was responsible for the care of any other person (in addition to the children for instance). The wife was not cross examined at the trial. This argument on behalf of the husband is nothing more than conjecture. I am far from convinced of the correctness of the husband’s submissions in this regard.

Ratio Decidendi

Legal Principle Established

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