ANDERSON & ANDERSON - [2014] FamCA 766

FAMILY COURT OF AUSTRALIA

ANDERSON & ANDERSON

[2014] FamCA 766

FAMILY LAW – CHILD SUPPORT – Interim orders – wife’s application for non-periodic child support – where the wife seeks that the husband pay the children’s educational expenses including tuition fees and arrears – where the husband previously consented to paying the children’s educational expenses – where the wife had applied for an assessment at the time the orders were made but the assessment had not yet issued – where the husband says his financial circumstances have changed – where the husband seeks to direct how any payments be applied – order made for husband to pay children’s tuition fees and extra-curricular expenses in addition to the assessment – question of payment of arrears of tuition fees reserved.

FAMILY LAW – SPOUSAL MAINTENANCE – Interim orders – wife’s application that the husband make the mortgage repayments on the former matrimonial home by way of spousal maintenance – consideration of the meaning of “adequate support” – where the wife concedes her parents will meet the mortgage repayments if the husband does not pay them – where the parties could not otherwise retain the former matrimonial home – order made for husband to pay sum by way of spousal maintenance.

FAMILY LAW – PRACTICE AND PROCEDURE – Interlocutory injunctions – husband’s application to restrain the wife from further encumbering the former matrimonial home – application dismissed.

Child Support (Assessment Act) 1989 (Cth) ss 117, 124, 125, 139, 152

Family Law Act 1975 (Cth)

Brown and Brown (2007) FLC 93-316
In the marriage of Bevan and Bevan (1995) FLC 92-600
In the marriage of Gyselman and Gyselman (1992) FLC 92-279
In the marriage of Nutting and Nutting (1978) FLC 90-410

APPLICANT:

Ms Anderson

RESPONDENT:

Mr Anderson

FILE NUMBER:

MLC

11091

2013

DATE DELIVERED:

16 September 2014

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Macmillan J

HEARING DATE:

8 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Strum

SOLICITOR FOR THE APPLICANT:

Taussig Cherrie Fildes

COUNSEL FOR THE RESPONDENT:

Ms Williams

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

ORDERS

IT IS ORDERED THAT

As and from 16 September 2014 and until further order of this Honourable Court there be a departure from the administrative assessment of child support to provide that in addition to the administrative assessment of child support and pursuant to

s 124(1) of the Child Support (Assessment) Act 1989 (Cth) the husband pay by way of child support in a form other than periodic amounts all educational expenses at L School for the children S born … 2002, R born … 2007 and Y born … 2009 inclusive of all tuition fees (excluding arrears), levies, uniforms, books, stationery, computer requirements, excursions and extra-curricular activities.
Until further order of this Honourable Court, the annual rate of child support payable by the husband under any relevant administrative assessment not be reduced by the child support ordered in paragraph 1 hereof.
Until the final hearing or further order of this…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ANDERSON & ANDERSON

Details

AGLC: ANDERSON & ANDERSON [2014] FamCA 766
Case: [2014] FamCA 766
Decision Date: 16 September 2014

CaseChat Overview and Summary

In the matter of ANDERSON & ANDERSON, the wife sought interim orders for non-periodic child support and spousal maintenance from the husband, while the husband applied for an interlocutory injunction to restrain the wife from further encumbering the former matrimonial home. The dispute concerned the husband's obligation to pay the children's educational expenses, including tuition fees and arrears, and his responsibility for mortgage repayments on the former matrimonial home by way of spousal maintenance. The court was also asked to consider the husband's assertion of changed financial circumstances and his desire to direct how payments should be applied.

The court was required to determine whether to depart from the administrative assessment of child support to order the husband to pay the children's educational expenses, including tuition fees and extra-curricular activities, and whether to make interim orders for spousal maintenance to cover mortgage repayments on the former matrimonial home. Additionally, the court had to consider the husband's application to restrain the wife from encumbering the property and to address the question of arrears for both tuition fees and spousal maintenance.

Macmillan J reasoned that it was appropriate to order the husband to pay the children's educational expenses, including tuition fees (excluding arrears), levies, uniforms, books, stationery, computer requirements, excursions, and extra-curricular activities, pursuant to s 124(1) of the Child Support (Assessment) Act 1989 (Cth), in addition to any periodic child support assessment. The court also ordered the husband to pay $350 per week by way of spousal maintenance for the wife's maintenance, noting that the wife conceded her parents would meet the mortgage repayments if the husband did not. The husband's application for an interlocutory injunction was dismissed. The question of retrospective departure from the assessment for tuition fee arrears and the period from 17 February 2014 to 16 September 2014 was reserved.

Orders

Orders of the court

IT IS ORDERED THAT

As and from 16 September 2014 and until further order of this Honourable Court there be a departure from the administrative assessment of child support to provide that in addition to the administrative assessment of child support and pursuant to

s 124(1) of the Child Support (Assessment) Act 1989 (Cth) the husband pay by way of child support in a form other than periodic amounts all educational expenses at L School for the children S born … 2002, R born … 2007 and Y born … 2009 inclusive of all tuition fees (excluding arrears), levies, uniforms, books, stationery, computer requirements, excursions and extra-curricular activities.

Until further order of this Honourable Court, the annual rate of child support payable by the husband under any relevant administrative assessment not be reduced by the child support ordered in paragraph 1 hereof.

Until the final hearing or further order of this Honourable Court, the husband pay to the wife for her maintenance the sum of $350 per week, with the first payment to be made by 4.00 pm on 23 September 2014 and weekly thereafter.

The question of any retrospective departure from the assessment for the period

17 February 2014 to 16 September 2014 be reserved.

The question of the responsibility for the payment of the tuition fee arrears be reserved.

All extant interim applications with respect to financial matters, save and except for any applications for costs, be otherwise dismissed.

IT IS CERTIFIED THAT

Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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