Cleaves & Cleaves

Case [2021] FamCA 571


FAMILY COURT OF AUSTRALIA

Cleaves & Cleaves [2021] FamCA 571

File number(s): SYC 2673 of 2021
Judgment of: HARPER J
Date of judgment: 5 August 2021
Catchwords: FAMILY LAW – CHILD SUPPORT – Interim application for departure order for periodic child support by wife – Application for non-periodic order to pay private school fees and health insurance – Where there is an existing administrative assessment to be renewed in August 2021 –
Whether wife satisfies s 116(1)(b) to enliven discretion to make a departure order – Whether it is in the interests of both parents for Court to consider making departure order – Whether circumstances of the case are special – Whether grounds in s 117(2) established – Application dismissed.
Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 98E, 98R, 98S, 116, 117, 124

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60CC, 65DAA, 74

Tribunals Amalgamation Act 2015 (Cth)

Family Law Rules 2004 (Cth) rr 1.12, 4.18, 4.23

Cases cited:

Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226

Acton & Burton [2015] FamCA 469

Babbit & Babbit (2011) 46 Fam LR 77

Bondelmonte v Bondelmonte  (2016) 259 CLR 662

Egan & Egan [2017] FamCA 170

Goode and Goode (2006) FLC 93-286

Gresham & Gresham [2018] FamCA 841

Hall v Hall [2016] 257 CLR 490

Hides & Hatton (1998) FLC 92-759

Tibb & Sheean (2018) 58 Fam LR 351

In the marriage of Gyselman (1992) FLC 92-279

Lesley & Lesley [2015] FamCA 894

Lokare & Baum [2019] FamCA 196

Lovett & McGregor [2019] FamCAFC 253

Marriage of Sheahan (1993) FLC 92-375

Pirelli & Pirelli and Anor [2018] FamCA 411

Saberton& Saberton [2013] FamCAFC 89

Seymour & Seymour [2011] FamCAFC 97

Turner & Turner and Anor (2016) FLC 93-719

Warwick & Cutler [2016] FamCA 934

Yewen & Child Support Registrar (2014) 290 FLR 366

Number of paragraphs: 41
Date of last submission: 7 June 2021
Date of hearing: 24 May 2021
Place: Sydney
Counsel for the Applicant: Mr Richardson SC
Solicitor for the Applicant: Barkus Doolan
Counsel for the Respondent: Mr Campton SC
Solicitor for the Respondent: Crumpton Lawyers

ORDERS

SYC 2673 of 2021
BETWEEN:

MS CLEAVES

Applicant

AND:

MR CLEAVES

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 AUGSUT 2021

THE COURT ORDERS THAT:

1.Paragraphs 5, 6 and 7 of the wife’s Amended Initiating Application filed on 15 April 2021, and claims regarding child support sought therein, be dismissed.

2.The costs of the application the subject of this judgment be reserved.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the…

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Cleaves & Cleaves [2021] FamCA 571
Case
[2021] FamCA 571
Decision Date

CaseChat Overview and Summary

In *Cleaves & Cleaves*, Ms Cleaves (the applicant wife) sought interim departure orders from the Federal Circuit and Family Court of Australia for periodic child support and for non-periodic orders requiring Mr Cleaves (the respondent husband) to pay private school fees and health insurance. An existing administrative assessment of child support was due for renewal in August 2021.

The primary legal issues before Harper J were whether the wife satisfied the criteria under section 116(1)(b) of the relevant legislation to enliven the court's discretion to make a departure order, whether it was in the interests of both parents for the court to consider such an order, and whether the circumstances of the case were special and established grounds under section 117(2).

Harper J dismissed the wife's application. The court found that the wife had not satisfied the threshold requirements to justify a departure from the administrative assessment. The circumstances presented were not considered special, and the grounds relied upon did not meet the statutory criteria for making a departure order. Consequently, the court declined to exercise its discretion to make the requested orders regarding child support, private school fees, and health insurance. The costs of the application were reserved.

Orders

Orders of the court

SYC 2673 of 2021

BETWEEN:

MS CLEAVES

Applicant

AND:

MR CLEAVES

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

5 AUGSUT 2021

THE COURT ORDERS THAT:

1. Paragraphs 5, 6 and 7 of the wife’s Amended Initiating Application filed on 15 April 2021, and claims regarding child support sought therein, be dismissed.

2. The costs of the application the subject of this judgment be reserved.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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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