WALTERS & CARSON

Case [2018] FamCAFC 233

FAMILY COURT OF AUSTRALIA

WALTERS & CARSON [2018] FamCAFC 233

FAMILY LAW – APPEAL – PROPERTY – where the de facto husband asserted that the trial judge erred in findings of fact relating to the de facto husband’s current and future income – where there was evidence before the trial judge upon which it was open for his Honour to make the finding he made as to the de facto husband’s current income – where it is not essential to be able to vest precision in a term or form of expression used by the trial judge – where the essential task of the trial judge in making the determination of property adjustment orders was to make a fair comparison between the parties as regards the earning capacity of each party rather than reaching, in absolute terms, exact conclusions about what each would earn – where the trial judge made errors in calculation but those errors could not be characterised as material – where most of the de facto husband’s challenges to contribution findings amounted to matters of weight – where it was not incumbent upon the trial judge to identify and discretely reflect upon each and every relevant consideration within the process required in the holistic assessment of contributions – where there was no substance in any of the de facto husband’s grounds of appeal challenging the property settlement orders – appeal from property settlement orders dismissed.

FAMILY LAW – APPEAL – CHILD SUPPORT – where the trial judge made reference to the s 90SM property settlement orders in general when considering the de facto wife’s child support departure application – where the reasons for judgment do not demonstrate that the trial judge had regard to the de facto wife’s capacity (or not) to derive income from capital under her control in considering her “income, property and financial resources” pursuant to ss 117(4)(d) and 117(7A) of the Child Support (Assessment) Act 1989 (Cth) – where the trial judge failed to consider the existing and future care arrangements for the children and the consequent expenses of the children being met by the de facto husband whilst in his care – where the trial judge did not explain or provide any basis for the conclusion reached in respect of the apportionment of liability to the de facto wife – appeal from child support orders allowed.

FAMILY LAW – APPEAL – SPOUSE MAINTENANCE – where the trial judge indicated that he had regard to the intended property settlement and child support orders when determining the de facto wife’s maintenance application – where it cannot be discerned from the reasons for judgment that the trial judge had regard to the de facto husband’s financial capacity to meet a maintenance order taking into account his other expenses and the proposed property settlement and child support orders – where no explanation was provided as to how it could be that the de facto wife’s needs were unaffected by the proposed property settlement orders which would…

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WALTERS & CARSON [2018] FamCAFC 233
Case
[2018] FamCAFC 233
Decision Date

CaseChat Overview and Summary

The case of Walters & Carson involved an appeal against property, child support, and spouse maintenance orders made in the Family Court. The de facto husband challenged the findings of fact made by the trial judge regarding his current and future income, the assessment of contributions, and the orders for property settlement, child support, and maintenance. The court examined whether the trial judge erred in his findings, particularly in relation to the de facto husband's income and the assessment of contributions. The court found that while there were some errors in the trial judge's calculations, they were not material, and most of the challenges to the findings were matters of weight.

The court also considered whether the trial judge had properly assessed the de facto wife's income, property, and financial resources when making child support orders, and whether he had considered the existing and future care arrangements for the children. The court found that the trial judge had not adequately considered the de facto wife's capacity to derive income from capital under her control and had failed to consider the care arrangements and consequent expenses of the children. The court also found that the trial judge had not properly considered the de facto husband's financial capacity to meet a maintenance order when making maintenance orders.

The court dismissed the appeal from the property settlement orders but allowed the appeals from the child support and maintenance orders. The child support and maintenance proceedings were remitted for rehearing before a different trial judge. The court also made orders regarding costs, including granting costs certificates to both parties for the costs incurred in relation to the appeals and the rehearing of the child support and maintenance proceedings.

Orders

Orders of the court

1.

The Application in an Appeal filed by the appellant on 2 February 2018 be dismissed.

2.

The Application in an Appeal filed by the respondent on 2 February 2018 be allowed.

3.

The appellant pay the costs of the respondent of and incidental to the respondent’s Application in an Appeal filed on 2 February 2018 in the amount agreed or, failing agreement, to be assessed.

4.

Pursuant to s 102 of the Child Support (Assessment) Act 1989 (Cth) leave be granted to the appellant to appeal Orders 18, 19 and 20 of the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017).

5.

That the appeal from Orders 18, 19 and 20 of the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017) be allowed and those orders be set aside.

6.

That the appeal from Order 17 of the orders made by Benjamin J on 18 May 2017 (amended 2 June 2017) be allowed and that order be set aside.

7.

That the appeal from the property settlement orders made by Benjamin J on 18 May 2017 (amended 2 June 2017) be dismissed.

8.

The parties have liberty to apply with respect to variation, if necessary, of Orders 3 and 4 made on 18 May 2017 (amended 2 June 2017) with respect to the timetable for sale of the real property the subject of those orders.

9.

That the child support proceedings and the maintenance proceedings be remitted for rehearing before a trial judge other than Benjamin J.

10.

The appellant is granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal from the child support orders and the maintenance orders.

11.

The respondent is granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal from the child support orders and the maintenance orders.

12.

The Court grants to each party a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the rehearing of the proceedings for child support and maintenance.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

Whilst the period up to eight years is probably accurate, it would seem to us that this is because the employment timeframes the trial judge had in mind can be gleaned when [54] and [55] of the reasons are read together and are considered with the evidence there being referred to. Those paragraphs are as follows:54.Given the assumptions in the memorandum for admission to full membership for base points to grow over 15 years and that the de facto husband asked [single expert Ms E] to adopt for her report that same period, I am satisfied that the de facto husband’s present intention is that he will remain a partner in [the English firm] for the next 15 years. I make this finding notwithstanding his evidence as to the short/medium term nature of his type of work in the context of his employment. 55.Given the de facto husband’s historical earnings, and the agreements with the English firm he is likely to earn towards $2 million per year in the short to medium term.(Emphasis added) The de facto husband was 44 years of age when he swore his affidavit for trial and when he gave oral evidence at trial. At paragraph 253.3 of his affidavit, whilst the de facto husband expressed that he did not anticipate working in the firm “for more than another 10 - 15 years” he also emphasised that “many partners” withdraw from the firm “at the age of about 52 or 53 years” and indeed he deposed to partners being encouraged to retire at this age and indeed to be “squeezed out of the firm” at this age. Obviously enough, as at trial the de facto husband was about eight years away from turning 52 years of age. Read in proper context then it would seem that the trial judge clearly had in mind that the de facto husband would probably continue to work as a partner in the English firm “for the next 15 years” and that the reference to the “short to medium term” was a reference to the period of about eight years (to when the de facto husband would turn 52 years of age) given that characterisation by the trial judge. In making these observations we ought to emphasise that we do not consider it essential to be able to vest precision in a term or form of expression used by the trial judge – “the short to medium term” – which is not amenable to precision – to be satisfied as to the trial judge’s meaning or reasoning process. The expression “earn towards $2 million per year” (emphasis added), would seem an equally deliberate choice by the trial judge not to express a finding in precise or absolute terms, or at least reflecting that such a degree of precision was unnecessary. Mr Richardson of Senior Counsel for the de facto wife sought to emphasise that by reference to the evidence as to the de facto husband’s income which was before the trial judge, it would be seen that the further evidence sought to be adduced by the de facto husband is in part inadmissible hearsay; is controversial; and is evidence that as a matter of fairness or justice ought not be permitted to be admitted under s 93A. Part of Mr Richardson’s submissions were directed to showing that, in any event, the further evidence cannot demonstrate error on the part of the trial judge when regard is had to the following evidence considered by the trial judge at trial.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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