Walford and Walford

[2008] FamCA 985

FAMILY COURT OF AUSTRALIA

WALFORD & WALFORD [2008] FamCA 985

FAMILY LAW – PRACTICE AND PROCEDURE – Case management orders

Child Support (Assessment) Act 1989 (Cth)

APPLICANT: Ms Walford

RESPONDENT: Mr Walford

FILE NUMBER: MLF 6901 of 2002

DATE DELIVERED: 18 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 18 November 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: IN PERSON

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: IN PERSON

SOLICITOR FOR THE RESPONDENT:

Orders

1. That the application in a case filed by the wife on 11 January 2008 be listed as the third case in the rolling list of cases commencing on 23 February 2008 as an estimated time of two days, such list concluding on 4 March 2008.

2. That by 28 November 2008, the wife file and serve an amended application (being an application for final orders relating to child support) seeking with precision, the orders she proposes to seek.

3. That by 19 December 2008, the husband file and serve a response to the wife’s application (if any is so filed).

4. That by 23 January 2009, the wife file and serve any affidavit material upon which she intends to rely.

5. That by 13 February 2009, the husband file and serve any affidavit material upon which he intends to rely.

6. That by 20 February 2009, the wife file and serve any affidavit in reply to the husband’s said material.

7. That by Wednesday 26 November 2008 at 10.00am in the morning, the husband inspect and the wife make available for that inspection at Wightons Solicitors,

   (a)    the business and personal tax returns for the years of the business conducted by her;

   (b)    the business and personal bank statements of any accounts for the periods subsequent to October 2005;

   (c)    all BAS statements;

   (d)    all invoices associated with the said business;

   (e)    the rental agreement for the shop premises at which the business is conducted;

   (f)     any Centrelink benefit statements;

   (g)    any Visa account statements for the same period.

8. That the husband make available to the wife for inspection at Wightons Solicitors at 10.00am on 26 November 2008, the following:

   (a)    any document referred to in paragraph 3.1, 3.2, 3.3 and 3.4 of the orders made by the Honourable Justice Guest on 21 December 2008 if they have not already been produced;

   (b)    the tax return for 2008;

   (c)    the financials of the trustee company of the family discretionary trust;

   (d)    the bank statements from 20 December 2007 until now for C Pty Ltd and any of the husband’s personal accounts;

   (e)    his passport;

   (f)     the Centrelink statements and family tax benefit statements subsequent to October 2005;

   (g)    any documents relating to the sale of the motor car that was in his possession or the possession of the company.

9. That reasons for judgment this day be delivered and placed on the court file and made available to the parties.

10. That each party file and serve a financial statement by Wednesday 26 November 2008.

IT IS NOTED that publication of this judgment under the pseudonym Walford & Walford is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 6901 of 2002

MS WALFORD

Applicant

And

MR WALFORD

Respondent

REASONS FOR JUDGMENT

1. On 18 November 2008, I held an interim hearing in this matter. I have made orders adjourning the case to a defended hearing.

2. I shall refer in these reasons to the parties as husband and wife notwithstanding they have long ended their relationship.

3. Both husband and wife have appeared unrepresented. Having regard to the complexities of the case, lack of representation has made the task of sorting out what the dispute is about much more difficult.

4. The matter came to me on the basis of a request by the wife that it be given some priority. Guest J dealt with property proceedings in December 2007 and then ordered the remaining child support matter be transferred to me with his Honour’s impending retirement. The file was removed shortly thereafter because the parties had to seek an amendment of their orders to clarify something. It would seem that thereafter, the case was overlooked by everyone.

5. To compound matters, the procedural discovery orders consented to by the parties were made by Guest J but do not appear to have been taken out by the wife’s solicitors notwithstanding there were orders for that to be done.

6. Having had the case brought to my attention and noting the Guest J order that it was urgent, I listed it quickly as a one day matter. I noted on the orders that the parties needed to address the question of jurisdiction.

7. The husband wrote thereafter to the Court complaining about the short notice and also that discovery had not been done. The wife said she wanted to proceed.

8. On the morning of 18 November, the husband contacted the Court to say that his girlfriend who is expecting a child was in difficulty and he could not get to court.

9. Because I was not convinced about the nature of the proceedings, I allowed him to participate by telephone.

10. The sequence of events from a procedural point of view are far from clear on the file. It was that reason that I shall set out some basic reasons for the future reading of the Court file.

11. During the property proceedings in December 2007, Guest J made remarks about disclosure and ultimately orders. He noted that the wife was given leave to bring a child support departure application in respect of the “current” assessment. It is not clear why his Honour would have limited the wife to that time period but the hand-written minute that was not engrossed seems to have been prepared in the hand of the wife’s legal practitioner.

12. The husband said to me that I should only allow the wife to proceed, if at all, with an application for departure from the current administrative assessment. I do not see there is any reason why I should do that.

13. The husband said, picking up my concern as expressed on the recent order, that there was no jurisdiction to deal with such an application under Part 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) because there was now no pending application that would give the Court power to hear the child support matter. To some extent that submission was understandable but misconceived.

14. The wife filed an application in a case on 11 January 2008. It sought orders pursuant to s 117 of the Act for a departure from administrative assessment for the one child as follows:

    (a)for the period 1/1/06 until 31 December 2008, the amount of child support is $866.00 per month ($200.00 per week).

    (b)For the period 1 January 2009 until 31 December 2013 such sum as deemed appropriate by this Honourable Court.

15. I asked the wife a number of questions. She confirmed that the lawyers had filed the application on her behalf. The application did not comply with Chapter 4 of the Family Law Rules 2004. It was not an application for final orders. It was not accompanied by an affidavit that complied with rule 4.19. It was not served on the Child Support registrar as required by rule 4.23(1)(b).

16. That position applied of course if the application was a departure application. The wife confirmed that she was seeking a lump sum or substitution order in respect of the second part of her application. That is not in Part 6A.

17. Leaving those problems aside, the assessments from which the wife wanted to depart were not with any document on the court file. It was impossible to match up the application and the assessment.

18. The husband’s jurisdictional argument was based on the fact that s 116 of the Act permits a court to hear the departure application if there is a pending financial matter. He pointed to the fact that there was no pending proceeding. That argument became unnecessary after I teased out from the wife what had in fact occurred.

19. The parties had a child support agreement for three years. It expired in 2005. The wife then obtained an administrative assessment. The husband reviewed it. The reviewing officer said his application was too complex. The wife objected and the appropriate officer rejected her objection on the basis that the case was too complex. Those steps enlivened the jurisdiction of the courts irrespective of the question of any pending proceeding.

20. To compound the confusion, the wife had apparently somewhere indicated that she was seeking a payment be fixed for the period until 2013 but now wanted a lump sum. The lump sum issue is not caught by the objection problems. The court has jurisdiction although the matter should have been filed in the Federal Magistrates Court of Australia.

21. I am satisfied that there is jurisdiction to hear the matter.

22. Having said that, the case is not in a condition where the Court could overcome all of the confusion and technical issues that easily. The only course open was to ensure that the application be properly put before the court and properly served.

23. The wife says that her case is really about the fact that the assessment does not reflect what is the husband’s financial reality. Her application does not set out what ground she is relying on for the court to exercise its power under s 117. The wife will need to rectify that problem.

24. The wife pointed to the fact that the husband had been the sole director of a company which acted as the trustee of his family trust and that he had made distributions to his brother, sister in law and in some cases, four children. The husband said that that was explainable. He said that his brother worked for him and the arrangement was that he was paid as a contractor through the trust including splitting with his wife and children. That does not explain why the husband would make a distribution to his own child but that is a matter for evidence.

25. I have made clear that the husband will need to have evidence from his brother and whoever can explain the intricacies of the distributions to avoid the inference that he was simply endeavouring to reduce his income for child support purposes. I am mindful that the Agency has said the matter is too complex to do within their review process. If the matter is to proceed on a litigation basis, the parties will need to not only have their evidence but make it available for cross-examination.

26. The husband says that regardless of the past, he is about to liquidate the company and he is now receiving Centrelink benefits. The wife may end up with a pyrrhic victory. The wife as much as conceded that she knew the husband’s financial position was not good but pointed to the fact that he drove a car.

27. Just how a lump sum order could be made and how it could be enforced is another matter.

28. The husband for his part argued that he had asked for disclosure of the wife’s business but had had no response. Initially he said to me that he had written 4 times since January this year but when challenged, he retracted that and said that it was last year. He too has slept on his rights. He said that he wanted financial information from the wife because she was running a cash business as a beauty services provider. He said that when they were together, she brought home cash and it was not declared for tax purposes. The wife for her part alleged that she would be calling a former partner of the husband’s about “fake” invoices and movement of monies. I have warned the parties of the potential to have me send the papers to the Australian Tax Office.

29. I also queried why the application is still being pursued when the current legislation permits a review through the SSAT. The wife was unaware of that course of action saying that she was in the system now. I am not sure that that is a sensible move.

30. I have accordingly made orders for the filing of material and disclosure. Those orders have little leeway. If they are complied with, I propose to have the matter relisted and it can be dealt with either on the basis of an undefended matter or struck out for failing to prosecute it.

31. I have told the parties that they are in a rolling list in February and they are presently at the end of that list. They will need to monitor the progress of the list and be ready to commence at short notice.

I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  18 November 2008