“Child Support”: Effect on earning capacity and meaning of “Support” in an FPA (Qld)

Imagine if you had a child with your partner and the relationship failed, resulting in your separation and shared parenting relationship.  Then, your former partner passes away.

How much did you depend on your former partner for support or help? “Support” or “help” can be pretty subjective words when it’s this kind of scenario.  You could likely depend on them to help with bills, custody and care of your minor child so you can go to work and pay your share of the bills?  What about if you were only able to access your full earning capacity potential because you could rely on that former partner to uphold their share of the custody so you could go to work? What if, now that they’ve gone and you can’t rely on that anymore, you can’t access your full earning capacity? Is it then enough to bring a family provision claim and claim on this “dependency”?

This is the situation in the case of Snodgrass v Estate of McLaren [2017] QSC 132. This case deals with the above and an application by the executor of the estate of the former partner to strike out a family provision application by the applicant, as a dependant of her deceased former partner. The deceased had left the applicant a life interest in a property and rest and residue of the estate was left to the applicant’s (and deceased’s) minor son.  The estate is likely to be worth in excess of $2 million.

The Court expressed that an application for family provision made on the basis that the applicant cannot exercise her earning capacity due to the deceased’s death is a novel question. This goes to the issue of the concept of “support” in the context of a family provision claim.

The Court did not determine this issue in this case, but ultimately determined to dismiss the application to strike out the applicant’s case allowing the applicant’s family provision claim to continue.

In allowing the claim to progress, the Court said that the point raised was “not unarguable” and noted that an application to strike out should only be done in the clearest of cases (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Gray v Morris [2004] 2 Qd R 118 at 133) and that great care should be taken in exercising such a power (Queensland University of Technology v Project Constructions (Aust) Pty Ltd (in liq) [2003] 1 Qd R 259 at 264).

The Court noted that the concept of “support” has been accepted as a wider concept than “maintenance” (Lohse v Lewis & Anor [2004] QSC 36, citing Williams v Aucutt [2000] 2 NZLR 479 at [52]).

At paragraph 22, the Court said:

If “support” has that wider meaning in determining what is “adequate” and “proper” then it must have a like meaning when considering the jurisdictional issue. And it is a small step from “sustaining, providing comfort” to accepting that “support” that has significant economic consequences if withdrawn is within the legislation.

 

The Court commented that prior cases, such as Lohse and Re Cobb [1989] 1 Qd R 522, could support the proposition that “past events and future probabilities” are relevant to an issue of, and the extent of, dependency.

The Court said, referring to those prior cases, at paragraphs 25 – 27:

The future plans there were that monies put aside by one were to be for the benefit of both. Here the future plans were that the deceased would provide the care necessary to enable Ms Snodgrass to be periodically relieved of her obligation to care for their son and so support herself.

If the enquiry excludes “past events and future probabilities” or is limited to direct contributions then the application under Part IV cannot succeed. But if the concept is wider and extends to indirect support, and is informed by those future probabilities, justifying a finding of a reasonable assumption by both parties that the support will be ongoing into the foreseeable future and with potentially significant financial consequences for the applicant if that support is withdrawn then the application may well succeed.

To an extent that argument relies on an extension of previously accepted concepts. On full examination it may prove not soundly based.  But for present purposes I am not prepared to find that it is so hopeless as meriting summary dismissal.

For all involved, I hope the matter resolves swiftly.

In the event that it progress to a trial, I am hopeful we will see a detailed analysis of the issue of dependency and what it means to give “support” to another in the context of a family provision application.

You can read the case here.

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