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Law Society Northern Territory

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Issue no. 1

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Law Society Northern Territory

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37 B A L A N C E M A R C H 2 0 1 8 C H I L D S U P P O R T Mother wins appeal against setting aside of binding agreement despite fathers inadequate disclosure In Telama & Telama (No. 2) [2017] FamCAFC 194 (15 September 2017) the Full Court (Ryan, Kent & Cleary JJ) allowed the payee mothers appeal against Judge Hendersons decision to set aside a binding child support agreement. The payer father successfully argued at first instance that the agreement should be set aside as his income had decreased from $710 000 per annum (when the agreement was made) to $220 000 per annum and he had no other financial resources from which to pay child support. The Full Court said (from [15]): The central issues in this case were whether the respondents changed financial circumstances constituted an exceptional circumstance for the purpose of s 136(2)(d) [of the Child Support (Assessment) Act] and amounted to hardship within the meaning of the provision. () [19] The respondent conceded on appeal that he did not comply with his obligations as to disclosure that he had been served with a Notice to Produce but failed to provide his tax returns for the three most recent financial years [which] was particularly significant as his case for the 2013 agreement to be set aside was based on: A material reduction in his income That he had since become liable for significant and unmanageable debts including to the Australian Taxation Office; and That he had since become liable for a significant claim to the liquidator of a company in which he had an interest. [20] Further, it was [his] contention that he would suffer hardship because he could not meet [his] obligations and had negligible other assets and financial resources on which to call. () [22] The trial transcript records her Honours disquiet at the respondents inadequate disclosure and her recognition that full and frank disclosure was central to the Courts ability to determine the application. () [29] However, in this case the primary judge did indeed make findings as to exceptional circumstances and hardship to the respondent, notwithstanding his inadequate disclosure. In our view, where the fact of nondisclosure was so obvious and material it was necessary for the primary judge to explain how and why the respondents oral evidence and unsworn explanations were sufficient to meet that deficiency and resolve the confusion created by his failure, for example, to produce necessary and requested documents. Her Honours reasons do not address that conundrum and in circumstances where the legal onus sat with the respondent the findings as to exceptional circumstances and hardship were not available. P R O C E D U R E Adjournment of property trial sought by wife three days after her discharge from a mental health facility In Rusken & Jenner [2017] FamCAFC 187 (6 September 2017) Murphy J (sitting in the appellate division of the Family Court of Australia) allowed Ms Ruskens appeal against Judge Lapthorns dismissal of her application to adjourn a property trial and summary dismissal of her initiating application for property settlement. Murphy J said (from [8]): The evidence here relates to significant mental health issues suffered by the wife. a limited capacity on [her] part to conduct those proceedings [S] ubsequent to trial directions being made by his Honour on 6 February 2017 the wife was admitted to hospital and between then and the date of the proposed trial on 15 May 2017 the wife was subject to an involuntary treatment order pursuant to the Mental Health Act 2016 (Qld) and was hospitalised pursuant to that order apart from periods of day release. She was released on 12 May; noting that the mooted trial was to take place some three days later. It is on that later date that the wife made her application for an adjournment. () [35] [I]t is not insignificant that although the wife failed to appear before the court on two occasions in June 2015, and despite her being self-represented she adduced medical evidence, through her brother, which prima facie suggested an appropriate reason for her failure to appear. [I]t is also significant of itself that the wifes brother, either on her request or on his own volition, appeared for her, rather than her simply failing to appear. [36] On 15 May 2017 the wife appeared selfrepresented and tendered a medical certificate which