International surrogacy arrangement accompanied by order of High Court of South Africa – Father recognised as parent

In Carlton & Bissett and Anor [2013] FamCA 143 (19 February 2013) the respondent (Mr Bissett) applied for a declaration that he was the father of children born under an international surrogacy arrangment where he was not only the biological donor of the sperm, but the surrogacy agreement was altruistic; had been recognised by an order of the High Court of South Africa; and he had been named as the father on the children’s birth certificates. Ryan J declared that the respondent (the biological parent) was the father of the children and ordered that Mr Bissett and Mr Carlton (the latter being biologically unrelated to the child – being Mr Bissett’s partner) have equal shared parental responsibility.

Ryan J said at paras 17-18:

“In s 4 of the Act the term ‘parent’ is defined as meaning ‘when used in Part VII in relation to a child who has been adopted, means an adoptive parent of the child’. Similar inclusive definitions of the word ‘child’ are found in s 4. The term ‘parent’ is not otherwise defined, with the focus generally being on the term ‘child’ in the context of how the Act applies to those children (ss 60F-60HB). Those definitions have no application to [the biological father] Mr Bissett. Simply put, whether he is the children’s parent is to be determined in the first instance by the application of the laws where he was ordinarily resident and the children’s domicile (of origin) at the time of their birth; namely South Africa.

In a report dated 26 April 2010, Dr R stated that Mr Bissett’s sperm was used to fertilise the unknown donor’s eggs by which the birth mother was impregnated. Mr Bissett is recorded on the children’s birth certificates as their father and has the South African order to which reference has already been made. Thus I am satisfied that Mr Bissett is recognised at law as the children’s father and that he is their biological father. Submissions were not addressed as to whether s 60CC or indeed s 69E are directed to a biological parent or persons who may not be biologically connected but are recognised at law as a parent. The words in s 60CC ‘either or both’ hint at biology whereas s 69E(1)(a) merely refers to ‘a parent’, which suggests the broader view. Whichever approach is adopted, Mr Bissett satisfies the requirement.”

Exemption from s 60I certificate granted under s 60I(9) where the alleged urgency was a child’s separation anxiety

In Carmel-Fevia & Fevia (No.2) [2013] FamCA 383 (28 March 2013) Cronin J heard an oral application by a mother of a 10 year old child who argued that her Part VII application was exempt from requiring a s 60I (family dispute resolution) certificate, the mother relying, inter alia, on s 60I(9)(d) (urgency).

Cronin J said at paras 1-3:

“Subsection 9 has a variety of exceptions. Indeed, most of them are extremely vague, and I’m not aware of any authority that is determinative one way or the other. But two of those exceptions are that the application is made in relation to a particular issue, which seems to be a bit odd because most applications are made in relation to particular issues.

But the other is that the application is made in circumstances of urgency. … [T]he wife … sets out the problems associated with E, who is now 10 years of age. The wife asserts that the child has seen a school counsellor for some years. She is anxious about being separated from the mother. She is having that anxiety manifested in physical issues such as chronic stomach pains and nausea, and the counsellor … the wife has said the child is consulting has told her that E suffers from a generalised anxiety problem.

[Counsel for] the husband says that his client’s view is that the problems are not quite as significant as those articulated by the wife, and no doubt the evidence will come out in the fullness of time. It seems to me the only question I have to be satisfied about is whether or not that evidence alone satisfies one of the requirements of s 60I(9), and I’m satisfied that it does. What that exemption would normally do is provide that the party can file their application without getting the certificate, and … the application would go through the normal channels. That seems also, to me, to be unnecessary having regard to the litigation that these parties have been involved in over the years.”

$435 million pool – Wife’s six year marriage to “a very wealthy man” – Wife’s contributions and s 75(2) factors both assessed not as a percentage but in dollar terms – “Reasonable standard of living” under s 75(2)(g) – Actuarial evidence considered

In Carmel-Fevia & Fevia (No. 3) [2012] FamCA 631 (6 August 2012) the wife married a “very wealthy man”. Most ($364m) of an asset pool of $435 million was owned by the husband (chairman of a commercial group of companies) before the parties’ six year marriage. A financial agreement between them was set aside by Murphy J after a contested hearing. There were two children of the marriage. The husband also had children from his earlier marriages, the wife providing significant care for three of them.

Cronin J described the issue as being “how to assess the entitlements of both parties but predominantly the wife” (para 1). Cronin J at para 45 cited Clauson (1995) FLC 92-595 and Hickey (2003) FLC 93-143 in which the Full Court said that “it was desirable to express the various adjustments in percentage terms” but added (para 46):

“It must be noted that that approach is not a statutory requirement. In this case, one percentage point amounts to $4.34 million. The use of percentages obscures what the Court is really asked to do which is to evaluate and give a dollar figure to what is an award or acknowledgement for the things done (rather than things achieved) by the contribution. Trying to apportion contribution on a percentage basis still requires the Court to look at the underlying value.”

Cronin J also (para 49) referred to Norman [2010] FamCAFC 66 in which the Full Court at para 50 of its judgment said:

“This court has made it clear that the court’s reasoning process and the ultimate result, giving effect to the clear legislative mandate [of s 79], can be better illuminated by reference to the dollar value of a result which is, almost invariably, expressed in percentage terms.”

Cronin J continued at paras 50-52:

“I see no reason to do other than endeavour to evaluate the wife’s contributions in dollar terms. The significance of the husband’s wealth is that the lifestyle enjoyed by both husband and wife creates certain expectations.

It is important to stress that the very fact that the wife could carry out the tasks she did, requires an acknowledgement that those satisfied one of the criteria in s 79(4) as a contribution. Whether that was made in a huge pool or in a small pool of assets, the contribution was just the same. The size of the pool cannot affect the fact that it was made. The importance of the contribution and its reach is what is being evaluated in circumstances of significant wealth.

It is important to recognise that the facts of this case take it out of the ordinary. Those facts are the large wealth and the modest duration of the relationship.”

Cronin J concluded at paras 126-127:

“Reflecting the overwhelming contribution of the husband to that increase but acknowledging the significance of the wife’s homemaker and parent role, I would assess the wife’s contribution to the increase of about $66 million at about 15 per cent. That is almost $10 million and taking into account what the wife already has retained which I shall determine she should also keep, I assess her contribution at $10 million over and above what she has kept. That reflects the fact that the husband introduced the wealth, has nurtured it and fulfilled his role in the factors required of him for the assessment process in s 79.

At the hearing in February 2012, an order was made that the husband make a part-payment to the wife and $500,000 was then paid. I propose therefore to take that from the $10 million.”

In support of her case for a further adjustment for s 75(2) factors the wife adduced evidence from an actuary as to the present value of a lump sum required to invest to meet the wife’s estimated future expenses for the rest of her life. Cronin J referred to that evidence at paras 162-164 before examining the wife’s evidence of her anticipated future expenses and recurring capital costs. Cronin J said at para 182:

“ … much about the wife’s future economic circumstances is speculative. The evidence of the actuary in this case however provides the foundation for a confident view that if the wife had unlimited resources, she could continue into the future to have untrammelled expenditure. I do not think that that is what s 75(2)(g) is intended to do. Sad as the breakdown of the relationship may be, it is not intended as redistributive justice but rather to ensure that a fair outcome is achieved having regard to the commitment that the parties made together when they commenced their relationship. The unusual feature of this case is the fact that there are two children for whom the wife will be largely responsible and she is entitled as a result of her commitment to the relationship in 2002 to be able to provide a standard for them reasonably and sensibly. It is not an opportunity to simply replicate the lifestyle to which they would become accustomed if living with their father. I do not propose therefore to simply endeavour to do that but rather make an adjustment so that there is a fair outcome which enables the wife to re-establish her financial security in the future with some confidence.”

Cronin J concluded at para 185:

“Having taken into account all of the other matters in s 75(2) … it is appropriate that I exercise the discretion and make a further adjustment in favour of the wife. That adjustment is guided by the mathematical calculations some of which I have accepted, the ongoing role as a parent in a wealthy environment and her past contribution towards the husband’s children. I assess that adjustment at a further $10 million.”

 

Interim order made permitting mother and child to relocate 100 kilometres (a one hour drive) away 

In Carne & Feldt [2013] FCCA 1851 (14 November 2013) Judge Brown considered the interim relocation of a mother from town “N” to a town 100 kilometres away (“M”) with the parties’ 6 year old daughter (“[X]”). The towns were “connected by a bitumen highway” (para 19) upon which the “drive takes approximately one hour” (para 111).

The mother had “spent the majority of her life in N” (para 7) while the father was “born and grew up” there (para 7). The parties separated when the child was “around sixteen months of age” (para 5) and the child had “lived predominately with her mother” since then (para 5). The mother was “engaged to be married” was “pregnant and due to give birth [in] 2014” (para 11) and had moved to M after her accommodation in N became unavailable and when her fiancé obtained employment there (para 12).

The parties agreed “that the presumption of equal shared parental responsibility should be applied to them and their ongoing care of [X]” (para 63), but the father argued that the bests interests of the child were such that the mother should return to live with the child in N as it would “inevitably diminish the quality of the relationship, which [X] currently enjoys with him” (para 18).

The Court said:

“[20]   … there is no dispute that Ms Feldt has been [X]’s primary provider of care, for the larger proportion of her life to date. However … Mr Carne has been spending regular periods of time with [X], with the periods being incrementally increased as she matures. ( … )

[33]    Mr Carne does not formally specify what should occur if Ms Feldt is unwilling herself to live in N. In a formal sense, he does not seek that [X] should live with him. Implicit in his position is the recognition that [X]’s best interests will be best served, if she continues to live with her mother. ( … )

[68]    The High Court has held that it is a statutory pre-condition of the making of an equal time order that it is reasonably practicable for such an order to be made. Accordingly courts such as this are directed to consider the reality of the situation which confronts parents and child not merely whether it is desirable that there be equal time spent by the child with each parent. Essentially, a consideration of what is feasible for a child is of equal importance to what is desirable for that child …

( … )

[72]    It has been said that relocation cases by their nature require particular and careful analysis. The consequence of any proposed move does not turn on the distance involved alone. However, for obvious reasons, a move from Burnie to Broome, say, is likely to be more significant for a child than a move from Warrnambool to Wangaratta.

[73]    In determining the consequences of the move in question, what is also likely to be highly relevant is the age of the child concerned. For obvious reasons, the move of a baby or a pre-schooler, in terms of the development of parental attachment, will be very different to those of a teenager, whose parental relationships are likely to be well established.

( … )

[76]    As Kay J pointed out in Godfrey & Sanders [(2008) FLR 287], what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

( … )

[84]    I accept that the move of [X] from N to M must have implications for the quality of the relationship [X] will have with her father. Unless Mr Carne elects to move, he will not be able to see her on a daily or frequent basis. His time with her will be confined to weekends and blocks of time, during the school holidays.

[85]    However, in my view, the distance entailed in the move does not constitute an insuperable barrier to [X] having a meaningful level of relationship with their father. The distance is not so great that it will inevitably prevent [X] from interacting regularly, with Mr Carne, and being able to engage with him, in a variety of activities, in both N and M.

[86]    The distance between the two locations is one hundred kilometres. It is one which many inhabitants of rural and outback Australia are used to driving regularly, to fulfil both personal and business obligations, particularly if they live in a smaller centre and have to come regularly to a larger provincial one. This would appear to be the relationship between N and M.

( … )

[90]    Ms Feldt’s move to M occurs for rational and readily understandable reasons. Her partner, and the father of her soon to be born child, has secured better paid employment in M. Due to the end of her lease in N she was compelled to look for sources of alternative accommodation, which on her case were not readily obtainable in N. As such, the move cannot be described as being capricious or selfish.

[91]    Up to this stage, Ms Feldt has been [X]’s unchallenged primary carer. Mr Carne makes no significant criticisms of the manner in which Ms Feldt has discharged her parenting responsibilities. In addition, at this present stage he does not desire to supplant Ms Feldt, as [X]’s main provider of care. Rather, what he wishes to do is to direct where Ms Feldt should discharge those responsibilities.

( … )

[104] [X] is six years of age. It seems clear she knows her father well. She will continue to be able to see him regularly, on at least a fortnightly basis. As such, she is likely to be able to maintain her relationship with her father, if she continues to live in M and he remains living in N.”

Judge Brown made an interim order that the mother be permitted to live with the child in M and that the child spend time with the father every alternate weekend, on school holidays and special occasions.

Editor’s note – This decision is arguably contrary to the settled authority of C & S [1998] FamCA 66 and Morgan & Miles [2007] FamCA 1230 (a proposed 144 km relocation) both cited at page 4-49 of The Family Law Book (“unilateral relocation”). Judge Brown (at para 127) cites para 74 of Boland J’s judgment in Morgan & Miles without referring to paras 82-88 of that judgment under the heading “What is the effect of the legislation in dealing with an interim application?”, in particular para 88 where Boland J said that “the very difficult issues in cases involving a relocation … make it highly desirable that, except in cases of emergency [editor’s emphasis], the arrangements which will be in the child’s best interests should not be determined in an abridged interim hearing … ”  

Child support – SSAT appeal – Error as to date of terminating event (cessation of Australian residency)

In Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 (15 June 2011) Brown FM allowed an appeal from the Social Security Appeals Tribunal which was held to have been in error to have found that the appellant’s move overseas to take up new employment was temporary and not intended to be permanent.

Impracticability as a ground for setting aside property order – Inconvenience is not such a ground  

In Carrington (No. 2) [2010] FamCA 982 (5 November 2010) Benjamin J dismissed a husband’s application for an order setting aside a property order by which the husband at his insistence was to retain all of the assets and pay the wife $1.98m for her property entitlement instead of allowing a sale of assets to provide for her settlement. The basis of his application was that his receipt of a tax demand for $76,000 more than had been accepted at the hearing, and his bank’s withdrawal of finance when his company went into voluntary administration, had made it impracticable for the order to be carried out within the meaning of s 79A(1)(b) of the Family Law Act. 

Benjamin J said at para 75:

“I accept [the] submissions on behalf of the wife that it is not impracticable for the husband to comply with the order, it is inconvenient. In that regard the husband has sold two assets being part of the farm real estate and his business but there is no evidence he has endeavoured to sell other assets. The approach he adopted was through finance which I accept has been exhausted.”

Procedure – Full Court grants adult son access to his parents’ 1977 court file pursuant to FLR 24.13 – Held that he was “a person with a proper interest in the case”

In Carter [2018] FamCAFC 45 (6 March 2018), the Full Court (Ainslie-Wallace, Murphy and Aldridge JJ) allowed the appeal of a mentally ill 53 year old son against an order made by Johns J dismissing his application for access to his parent’s 1977 Family Court of Australia file. After his parents’ separation in 1976 the appellant lived with his mother and three siblings until the age of 15 when he moved to live with his father, but from age 17 he boarded with another family.

He wished to search the court record of the case in the hope of “mak[ing] some sense of” why his family became “dysfunctional” and to better understand why he was separated from his siblings ([17]-[20]). Both parents initially refused to consent but at the hearing did consent. At first instance Johns J referred to rule 24.13 of the Family Law Rules and limited the son’s access to his parents’ consent parenting orders, dismissing his application for leave to search the rest of the court file.

Ainslie-Wallace J (with whom Murphy and Aldridge JJ agreed) said (from [21]):

“Her Honour considered the application by reference to r 24.13 of the Family Law Rules 2004 (Cth) (‘the Rules’), and in particular … (1) and (3) which provides for the matters to be considered when determining whether to grant access to the court file. The relevant aspects are:

1)      The following persons may search the court record relating to a case, and inspect and copy a document forming part of the court record:

…

(c)     with the permission of the court, a person with a proper interest:

(i)      in the case; or

(ii)     in information obtainable from the court record in the case;

…

3)      In considering whether to give permission under this rule, the court must consider the following matters:

(a)     the purpose for which access is sought;

(b)     whether the access sought is reasonable for that purpose;

(c)     the need for security of court personnel, parties, children and witnesses;

(d)     any limits or conditions that should be imposed on access to, or use of, the court record.

[22]   The primary judge found that the appellant had a proper interest in the proceedings to make the application (r 24.13(1)).

[23]   However, she refused the appellant access to the file because she said she was concerned as to what benefit he might obtain from inspecting the file and because her Honour thought that it was unlikely that an inspection of the file would provide him with the answers he seeks. Her Honour said at [25] of her reasons that she was not persuaded ‘that the pursuit of such information is reasonable’.

[24]   Her Honour further expressed concerns about the impact on the appellant’s mental health if he was permitted access to the file and expressed concerns for his wellbeing (at [25]).

( … )

[31]   Before turning to … the challenge … I observe that in Oates & Q and Anor [2010] FamCAFC 202 … the Full Court said [at [99]]:

‘Rule 24.13 requires only that a person have a proper interest in the case or information obtainable from the court record. No other limitation is placed upon the circumstances in which the Court may grant a person access to the court record.’

[32] It is important too to note that r 24.13(3) provides the criteria by which the application is considered; it does not entitle a decision to be based on matters not relevant to its terms.

[33]   … [H]er Honour declined the appellant access to the file because, having regard to his stated purpose, the contents of the file were unlikely to provide him with the answers he seeks and that he would not derive any benefit from having access to the file …

[34]   The appellant sought access to the file to understand why the orders were made … and to understand the circumstances of his living separately from his siblings.

[35]   Prima facie the stated purpose is reasonable. Whether or not he would derive a benefit if he had access to the file is not relevant to her Honour’s consideration.

[36]   Her Honour was obliged to consider whether the appellant’s request to access the file was reasonable in light of his stated purpose for seeking access. This purpose was that he wanted to look at the file to see whether there was anything in it which might make sense of his living arrangements after his parents’ separation and to undertake an ‘autopsy’ on his family history (at [13]).

[37]   Her Honour determined that the access sought was not reasonable in light of that purpose, not by reference to the dictates of the rule but by reference to other matters, such as whether to inspect it would provide him with answers.

[38]   In my view, her Honour erred by having regard to irrelevant matters when determining the question of reasonableness of the request for access and the matters to which she referred were unsupported by evidence before her.”

Murphy J added (from [68]):

“The primary judge was required to identify the purpose or purposes for which access to the file was requested and having done so whether that access is reasonable for that purpose or purposes.

[69]   Importantly … one of the express purposes identified by the mentally ill appellant is that the information on the file indeed perhaps access to the file itself may help in treatment and recovery. … [H]is treating psychiatrist … sees benefit in him having access to the file for his ongoing treatment.

[70]   Access to the file may or may not have the result that the appellant desires for it. But it cannot in my view be said that this particular purpose is unreasonable and all the more so of course because the contents of the file should have pertained … to his best interests and those of his siblings.

[71]   I agree that the primary judge’s focus on an absence of benefit and/or her Honour’s expressed doubts about the benefit of access to the file was an irrelevant consideration in the exercise of discretion.

[72]   Further, with respect, the question was not as her Honour posed it which was whether the appellant’s pursuit of such information is reasonable, but rather whether the specified purpose or purposes was reasonable.”

11 year childless relationship – Husband’s initial contributions exceeded value of net pool at trial – No initial contributions by the wife 

In Carter [2014] FCCA 1958 (29 August 2014) Judge Scarlett considered a relationship which lasted 11 years where there were no children of the marriage. The asset pool comprised net non-superannuation assets worth $2,187,049 (para 98) and superannuation of $438,522 (para 99).

As to initial contributions, the Court said (from para 16):

“…       At the time the parties commenced their relationship in 1998, it appears that:

a)        The wife was employed as a (omitted), earning between $300 and $400 per week;

b)        She had no assets or savings of any great value;

c)        The husband was (and still is) a (occupation omitted), then earning approximately $425,000 gross per year;

d)        He owned seven properties which had been purchased between 1984 and 1996 for a total of $1,420,000;

e)        These properties were sold between 2002 and 2007 for a total of $4,582,000.

[17]     The husband claims, but the wife does not concede, that at the commencement of cohabitation he owned personal property worth about $32,000 and had a variety of other interests, including superannuation worth, he asserts, upwards of $300,000.

( … )

[20]     Between 1998 and 2005 the husband purchased a further seven properties for a combined purchase price of $4,910,100. He sold them between 2006 and 2008 for a combined sale price of $6,920,000.”

It was “either agreed, or not contested, that … the wife gained various qualifications” during the relationship and also “worked in various occupations” (para 18).

When assessing contributions Judge Scarlett said (from para 102):

“…       … the wife made no initial financial contributions. She had no assets or savings of any value and was earning a modest income …

[103]    By contrast, the husband was earning a considerable income … approximately $425,000 per annum, owned seven properties and had other assets. Certainly, the husband made a far greater initial contribution than did the wife. However, the parties do not agree about the monetary value of the husband’s initial contribution, as they disagree about the value of the properties that the husband owned at the time.

[104]    … The only evidence before the Court is the purchase prices. It was submitted that the sale prices of the properties in the years 2002 and 2003 cannot be indicative of the value of the assets as at January 1998.

[105]    The difficulty with that submission, however, is that the properties were purchased at various times between 1984 and 1996, and it would not appear that the purchase prices of the properties would be any more indicative of their value in 1998 than their sale prices in 2002 and 2003.

[106]    The Husband’s estimates of the values of the real estate at Annexure “A1”are calculated as at 25th June 1999 and appear to offer the best guide to the values of the real estate at the commencement of cohabitation. The estimated values [total] $3,250,000.

( … )

[107]    As for contributions during the marriage, the wife contends that she made contributions from her income in full-time employment. She worked in various positions and occupations …

[108]    It is the husband’s case that he made a significant ongoing financial contribution through his fees … [His subsequent change in careers during the parties’ relationship] … must be said to have been less than successful.

[109]    It is the wife’s case that she made significant non-financial contributions to the relationship, not only in her role as homemaker, but as a professional support person, bookkeeper and assistant in the husband’s employment and business ventures, including management of properties. …

( … )

[121]    …the husband’s financial contributions both at the outset and throughout the parties’ relationship have always been greater than those of the wife. …

[122]    The wife’s non-financial contribution to the marriage should not be under-estimated. Having heard his evidence and having observed the husband acting for himself in the interim proceedings prior to the final hearing, in which he very sensibly obtained legal representation, I formed the view that the husband would have been a difficult, argumentative and impulsive person with whom to live. …

[123]    I assess the parties’ contributions at 80% to the husband and 20% to the wife.”

After considering the wife’s gross salary of $17,746 per annum (para 125); the husband’s gross earnings of about $170,000 per annum (para 126); the husband’s submission that he was older and in poorer health than the wife (the husband being 56 and suffering from depression, the wife being 44); and that the wife obtained qualifications during the relationship (para 127) and that her “income and asset position have improved considerably during the relationship” (para 133) the Court concluded (from para 135):

“…       In my view, the s 75(2) factors slightly favour the wife. There is a disparity between the parties’ incomes in favour of the husband and he will receive a substantially greater amount of property than she will.

[136]    Against this, the husband’s depression is a factor and there is some strength to his counsel’s submission that there are some question marks over his earning capacity in the future. …

[137]    In my view, there should be a 10% adjustment in favour of the wife.

[138]    This would lead to a division of property in the ratio of 70% to the husband and 30% to the wife.”

 

Child support – Court joins father’s new wife as a party to enforcement proceedings to address father’s alienation of personal service income in favour of her business – Third party debt notices issued against business

In Cary & Dalgard [2018] FCCA 2942 (24 September 2018) Judge Harland heard the mother’s private enforcement proceedings (to which the Child Support Registrar was not a party) in which the father had previously been ordered to pay arrears. In the absence of payment by the father, the mother sought to join the father’s new wife, Ms G, to the proceedings on the ground that the father was on her business website and was alienating income through that business. She also sought a third party debt notice against the business.

Judge Harland said (from [7]):

“I am satisfied that it is appropriate to join Ms G as a second respondent to these proceedings, pursuant to rule 11.01 … as her participation is necessary in order for the Court to determine, completely and finally, all matters in dispute. …

[8]     … [W]hilst the respondent claims that Business B is solely his wife’s business and that he has no connection to it, their evidence with respect to this was inconsistent. … The respondent’s name appears directly under Business B and provides his address, so it clearly shows that he was the person responsible at Business B. Further to that, annexure AA05 is extracts of the website for Business B, which includes a photo of the respondent, and refers to him and his business.

[9]     The applicant refers to this, and also Facebook entries of Ms G, and says these documents support the submission that it is really the respondent who is the person in control and behind this business. … That is not to say that Ms G does not have an involvement in that business but the evidence certainly satisfies me that the respondent also has a real involvement and control with respect to that business.

[10]   It is also telling that after these proceedings were commenced for enforcement the invoices issued by Business B … changed and no longer referred to the respondent by name, and were handwritten invoices, rather than typed.

[11]   … What is clear from the material is that, at times, the respondent has worked for Business A as an employee or contractor under his own name, but also invoices have issued from Business B to Business A.

( … )

[13]   Capturing alienated personal service payments is the significant issue here, as referring to alienation of income is really referring to a person assigning the right to receive income to another person. What is of assistance too is the definition set out in section 84.5 of the Income Tax Assessment Act 1977 … with respect to personal services, wherein it states, at subsection (1) ordinary income is personal services income, if that income is mainly a reward for personal efforts or skills. Clearly, that is the case here. ( … )

[14]   … [T]he applicant also relies on the Australian Taxation Office ruling TR2001-7, and refers to a New Zealand decision of Spratt v IRC (NZ) 1964 9 AITR 227 where Henry J said:

‘No taxpayer can, by way of assignment, escape assessment of tax on income resulting from his personal activities – such income always remains truly his income and is derived by him irrespective of the method he may adopt to dispose of it.’

[15]   I accept the submissions made by the applicant that the inference that the Court could draw is that the payment received by Business A and/or Ms G are alienated personal services payments with respect to services performed by the respondent.

[16]   [I]n these circumstances, the applicant submits that the extension of a third party debt notice should be included in the circumstances in this case, because if it did not there would be a lacuna in law, and refers to the comments of Austin J in Woodhurst & Rubbens (No.2) (2016) FamCA 786 which referred to the equivalent of the enforcement rules in the Family Court, and importantly said:

‘In a proper case, the Court should not balk at implementing its full armoury of power to ensure compliance with its orders.’

[17]   The fact is that in child support enforcement matters, where the child support registrar takes such action rather than an applicant making that application in her own terms, the child support registrar would be entitled to issue such a notice to enforce payment, and it would seem strange indeed, given that the child support legislation particularly provides for the capacity of an individual to bring an application for enforcement where the child support registrar does not, but if the applicant was not able to enforce the payments sought when the Child Support Registrar could in the same circumstances.

[18]   The requirements for issuing a third party debt notice are set out in subdivision 25B.2.4 of the Federal Circuit Court Rules, and the Court must be satisfied as to a number of matters. In this case, I am satisfied that there is a debt owning, that there is an obligation to pay money, and that the applicant is entitled to seek enforcement of payment of that obligation.”

Orders were made for Ms G to be joined to the proceedings and that the mother file third party debt notices that provided for the business to pay $350 per week to the Registrar of Child Support and $150 per week to the mother’s lawyers. The father was ordered to pay the mother’s costs in the sum of $10,000.

Retention of farm by husband facilitated by his being given 12 months in which to pay portion of wife’s property settlement  

In Casper [2009] FamCA 989 (15 October 2009), the case of a couple married for 16 years with two teenage children, Fowler J assessed the husband’s contributions to the net assets of $6.4 million being mostly the value of a farm brought into the marriage by him at 70 per cent of the pool. 

The wife’s share, increased by 2.5% under s 75(2) of the Family Law Act gave her a settlement of $1.7m of which $1.4m was payable within 30 days to enable the wife to complete the purchase of another property, the balance being payable in 12 months with interest enabling the husband to raise the settlement and retain the farm.