Bassett and Teale - [2016] FCCA 2177

FEDERAL CIRCUIT COURT OF AUSTRALIA

BASSETT & TEALE

[2016] FCCA 2177

Catchwords:
FAMILY LAW – Child support – enforcement of a binding child support agreement – whether the agreement is void for uncertainty – if not, whether the agreement ought to be to set aside – if so, whether a departure order ought to be made – where the parties have spent tens of thousands of dollars in legal fees arguing about sums less than $5,000.

Legislation:

Child Support (Assessment) Act 1989, ss.116(1)(b), 136(2)(b)(ii), 80CA, 117(1), 117(2)

Cases cited:

Thorby v Goldberg (1964) 112 CLR 597
Weiss v Barker Gosling (1993) FLC 92 -399

Applicant:

MS BASSETT

Respondent:

MR TEALE

File Number:

MLC 4408 of 2009

Judgment of:

Judge Small

Hearing date:

19 November 2015

Date of Last Submission:

21 December 2015

Delivered at:

Melbourne

Delivered on:

24 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr Ham

Solicitors for the Applicant:

Wisewould Mahony Lawyers

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

Tisher Liner FC Law

DECLARATION

That the Binding Child Support Agreement signed by the parties on 14 May 2009 is void for uncertainty.

ORDERS

Pursuant to Section 116(1)(b) of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment in relation to the children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (collectively, “the children”) for the period 1 July 2016 until the completion of the 2017 (omitted) College school year in the case of X, and 1 July 2016 to 5 June 2020 or the completion of his secondary education, whichever is the later, in the case of Y.
In addition to any periodic payments of child support as assessed by the Department of Human Services (Child Support) from time to time (“the periodic payments”) and until a child support terminating event occurs in relation to each child, the husband shall pay the following expenses by way of non-periodic child support for the children:
(a)65% of all private secondary fees at agreed private secondary schools including but not limited to (omitted) College for X and (omitted) School for Y;
(b)100% of private health insurance for each child at their current rate inclusive of hospital cover and extras;
(c)the first $1,000.00 per calendar year combined gap fee for out-of-pocket medical expenses for the children (“medical expenses threshold”) in addition to 50% of any gap fee in respect of the children above such medical expenses threshold; and
(d)the sum of $2,500.00 per child per annum, indexed on 30 June each year pursuant to the Australian Consumer Price Index, and payable in equal sums on 1 July and 1 December each year.
For the sake of clarity in relation to paragraph 3(d) hereof, the husband shall pay to the wife, directly into a bank account nominated by her from time to time, the sum of $2,500.00 on each of 1 July and 1 December each year, such sum to be indexed on 30 June each year, until 1 December 2017 when…

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 Bassett and Teale

Details

AGLC: Bassett and Teale [2016] FCCA 2177
Case: [2016] FCCA 2177
Decision Date: 24 August 2016

CaseChat Overview and Summary

This matter concerned an application for a departure from an administrative assessment of child support for two children, X and Y. The dispute involved the allocation of financial responsibilities for the children's education and healthcare expenses between the husband and wife. The decision was made by Judge Small.

The court was required to determine whether to depart from the standard administrative assessment and, if so, to specify the terms of the departure. This involved considering the appropriate contributions each party should make towards private secondary school fees, private health insurance, medical gap expenses, and an additional annual sum for each child.

Judge Small ordered a departure from the administrative assessment pursuant to s 116(1)(b) of the Child Support (Assessment) Act 1989. The husband was ordered to pay 65% of private secondary school fees, 100% of private health insurance premiums, the first $1,000 of annual medical gap expenses, and 50% of any medical gap expenses exceeding that threshold. He was also ordered to pay a further sum of $2,500 per child per annum, indexed annually, payable in two instalments. The wife was ordered to pay the remaining 35% of private secondary school fees and 50% of medical gap expenses exceeding the threshold. These non-periodic payments were to be made in addition to any periodic child support assessed by the Department of Human Services.

Orders

Orders of the court

Pursuant to Section 116(1)(b) of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment in relation to the children X born (omitted) 1999 (“X”) and Y born (omitted) 2002 (“Y”) (collectively, “the children”) for the period 1 July 2016 until the completion of the 2017 (omitted) College school year in the case of X, and 1 July 2016 to 5 June 2020 or the completion of his secondary education, whichever is the later, in the case of Y.

In addition to any periodic payments of child support as assessed by the Department of Human Services (Child Support) from time to time (“the periodic payments”) and until a child support terminating event occurs in relation to each child, the husband shall pay the following expenses by way of non-periodic child support for the children:

(a) 65% of all private secondary fees at agreed private secondary schools including but not limited to (omitted) College for X and (omitted) School for Y;

(b) 100% of private health insurance for each child at their current rate inclusive of hospital cover and extras;

(c) the first $1,000.00 per calendar year combined gap fee for out-of-pocket medical expenses for the children (“medical expenses threshold”) in addition to 50% of any gap fee in respect of the children above such medical expenses threshold; and

(d) the sum of $2,500.00 per child per annum, indexed on 30 June each year pursuant to the Australian Consumer Price Index, and payable in equal sums on 1 July and 1 December each year.

For the sake of clarity in relation to paragraph 3(d) hereof, the husband shall pay to the wife, directly into a bank account nominated by her from time to time, the sum of $2,500.00 on each of 1 July and 1 December each year, such sum to be indexed on 30 June each year, until 1 December 2017 when the sum to be paid on each of those two dates will fall to $1,250.00 as indexed. The husband shall pay the first of the payments due under paragraph 3(d), that is, the sum of $2,500.00, within seven days of the date of these orders and that payment shall be deemed to have been paid on 1 July 2016.

In addition to any periodic payments of child support received from time to time and until a child support terminating event occurs in relation to each child, the wife shall pay the following expenses by way of non-periodic child support for the children:

(a) 35% of private secondary fees at agreed private secondary schools including but not limited to (omitted) College for X and (omitted) School for Y; and

(b) 50% of any gap fee in respect of the children above the medical expenses threshold as defined in paragraph 3(c) herein.

All payments for which a party is liable shall be paid as follows:

(a) The periodic payments payable by the husband to the wife shall be paid to the wife by electronic transfer into an account nominated by the wife from time to time, or to the Department of Human Services (Child Support), monthly on or before the 15th day of each month.

(b) Payment of non-periodic child support payments pursuant to paragraphs 3(a), (b) and (c) and 5(a) and (b) hereof shall be made for each child directly to the doctor or institution concerned and if either party is required to make the full payment at the time of service, the other shall reimburse him/her within seven days of receiving an invoice and receipt for that payment.

No non-periodic child support payments made by the parties shall be credited in satisfaction of and in substitution for any liability for any child support which they may have pursuant to an administrative assessment made by the Department of Human Services (Child Support) from time to time.

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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