Christian & Donald

[2004] FamCA 1171

[2004] FamCA 1171

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No EA57 of 2004
AT SYDNEY  File No CAF564 of 2000

BETWEEN:

CHRISTIAN
Appellant Father
- and -

DONALD
Respondent Mother

REASONS FOR JUDGMENT 

CORAM:  BRYANT CJ, FINN & KAY JJ
DATE OF HEARING:                 13 September 2004
DATE OF JUDGMENT:             21 December 2004

APPEARANCES:  The Appellant Father in person.

Mr Eley of Counsel, instructed by McGuinness Eley, Solicitors

CHRISTIAN & DONALD  EA57 of 2004

Coram: Bryant CJ, Finn & Kay JJ

Date of Hearing: 13 September 2004
Date of Judgment:  21 December 2004

CATCHWORDS LEAVE TO APPEAL - CHILD SUPPORT – Departure – Capital disparity – Where wife awarded an extra 20% in division of property for care of the children – Where residence of two children subsequently shifted to the husband and one child to a shared residence arrangement – Whether court should take capital disparity into account under s 117(2)(c)(i) or s 117(2)(c)(ii) of the Child Support Assessment Act – Whether unjust to require wife to deplete capital to pay child support

This was the husband’s application for leave to appeal and his appeal against child support orders made by Coleman J on 14 May 2004.

The parties married in 1979 and separated in 2001.  There were five children born of the marriage.  The proceedings before Coleman J concerned child support payable in respect of the three youngest children, L, born in 1988, N, born in 1990 and T, born in 1995. 

In December 2001, Moore J ordered that the children reside with the wife and that the wife, as part of the division of property, receive an extra 20% of the pool, or around $60,000, on account of her responsibility for the future care for the children.

Subsequent to the making of those orders, residence of the children changed, with L and N moving in with the husband and T living with each of the parties on a week about basis.

In February 2004, a number of administrative assessments of child support issued to the parties.  The proceedings before Coleman J concerned the husband’s application for a departure from those assessments and his appeal against the decision of the Child Support Registrar.  

In his departure application, the husband sought to rely on s 117(2)(c)(ii) of the Assessment Act to increase the wife’s child support liability, arguing that the court was entitled, under that ground, to take into account the effect of the property settlement. He also sought to increase the wife’s child support liability on the basis she had a greater earning capacity than she was currently exercising, and could increase her work load from part- to full time. In addition, the husband sought orders that the wife pay half of the children’s education costs.

Coleman J held that while s 117(2)(c)(ii) did not have the effect contended for by the husband, it did entitle the court to take into account the reality that part of the property settlement…