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Cleaves & Cleaves

Case [2021] FamCA 571 5 August 2021

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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…

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.

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Details

AGLC: Cleaves & Cleaves [2021] FamCA 571
Case: [2021] FamCA 571
Decision Date: 5 August 2021

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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Citations

Cleaves & Cleaves [2021] FamCA 571

Most Recent Citation

Caffyn & Caffyn [2021] FedCFamC1F 68

Cases Citing This Decision

Muir & Rodelo (No 2) [2023] FedCFamC1F 845
Citation 1

…71. Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64. Giunti and Giunti (1986) FLC 91-759; [1986] FamCA 15. Gyselman and Gyselman (1992) FLC 92-279; [1991] FamCA 93. Hides v Hatton (1997) FLC 92-759; [1997] FamCA 28. Illgen & Yike [2018] FamCA 17. Lemongrove Services Pty Ltd v Rilroll Pty Limited [2019] NSWCA…
Sappho & Sappho (No 2) [2022] FedCFamC1F 786
Citation 2 (Para 47)

…In Cleaves v Cleaves [2021] FamCA 571, Harper J noted that:- [12]Numerous decisions under the Assessment Act have held court proceedings regarding child support assessments should be the exception rather than the rule because the Assessment Act establishes a detailed administrative framework to deal with child supp…
Caffyn & Caffyn [2021] FedCFamC1F 68
Citation 3 (Para 8)

…ining fair: Yewen at [79]; Warwick at [59]; Babbit & Babbit (2011) 46 Fam LR 77 at [134]; Lesley & Lesley [2015] FamCA 894 at [62]; Cleaves & Cleaves [2021] FamCA 571 at [12] – [14] and authorities cited there. The Assessment Act creates a process for administrative determination with rights of review, “including u…

See all citing cases →

Cases Cited

Lovett & McGregor [2019] FamCAFC 253
Citation 1 (Para 20)

…bestow attentive thought upon, give heed to, take note of ”. In Lovett & McGregor [2019] FamCAFC 253 at (“ Lovett ”) [71] and [72] the Full Court, after referring to Goode , Tibb and Bondelmonte , said the debate over the meaning of “consider” in the context of that appeal was “sterile" and this Court can proceed on…
Lokare & Baum [2019] FamCA 196
Citation 2 (Para 16)

…Seymour [2011] FamCAFC 97 (“ Seymour ”) at [84]; Babbit at [134]; Saberton & Saberton [2013] FamCAFC 89 (“ Saberton ”) at [12] Lokare & Baum [2019] FamCA 196 at [485].…
GRESHAM & GRESHAM [2018] FamCA 841
Citation 3 (Para 17)

…the truncated process of an interim hearings has been commented on numerous times: eg, Acton & Burton [2015] FamCA 469 at [26]; Gresham & Gresham [2018] FamCA 841 McClelland J at [156]. However, limited findings according to the ordinary civil standard of proof are not entirely precluded. In Hall v Hall [2016] 257…
Tibb & Sheean [2018] FamCAFC 142
Citation 4 (Para 20)

…on to give proper, genuine and realistic consideration ”. However, in Tibb & Sheean (2018) 58 Fam LR 351; [2018] FamCAFC 142 (“ Tibb ”) (Murphy and Cronin JJ, with Strickland J agreeing) at [79] the Full Court distanced itself from Bondelmonte on the basis that High Court did not there purport to define or interpret…
Pirelli and Pirelli & Anor [2018] FamCA 411
Citation 5 (Para 4)

…help clarify why the case should not be left to the administrative procedure as the preferred course. For example, in Pirelli & Pirelli and Anor [2018] FamCA 411 Hogan J made an interim finding that the requirements imposed by s 116(1)(b)(ii) had been established. Her Honour appears to have done so, partly at leas…
Egan & Egan [2017] FamCA 170
Citation 6 (Para 20)

…der” means “ a consideration tending to a result, or the need to consider positively the making of an order ”. In Egan & Egan [2017] FamCA 170 (“ Egan ”) at [28] Watts J expressed the view that the interpretation of “ consider’ in Goode did not survive the decision in Bondelmonte v Bondelmonte (2016) 259 CLR 662; […
Bondelmonte v Bondelmonte [2017] HCA 8
Citation 7 (Para 20)

…interpretation of “ consider’ in Goode did not survive the decision in Bondelmonte v Bondelmonte (2016) 259 CLR 662; [2017] HCA 8 (“ Bondelmonte ”) at p. 675, [43] where High Court said that in s 60CC, “ the term ‘consider’ imports an obligation to give proper, genuine and realistic consideration ”. However, i…
Warwick & Cutler [2016] FamCA 934
Citation 8 (Para 12)

…adversarial, whilst, at the same time, remaining fair: Yewen & Child Support Registrar (2014) 290 FLR 366; [2014] FCCA 2399 at [79]; Warwick & Cutler [2016] FamCA 934 (“ Warwick ”). In Warwick at [59] McClelland J (as he then was) in this Court observed that since the enactment of the Tribunals Amalgamation Act 201…
Turner & Turner and Anor [2016] FamCAFC 121
Citation 9 (Para 2)

…These principles remain applicable: Turner & Turner and Anor (2016) FLC 93-719; [2016] FamCAFC 121, at [108].…
Hall v Hall [2016] HCA 23
Citation 10 (Para 17)

…[156]. However, limited findings according to the ordinary civil standard of proof are not entirely precluded. In Hall v Hall [2016] 257 CLR 490; [2016] HCA 23 at [8], in relation to an exercise of the power conferred by s 74(1) of the Act, the majority decision of the High Court held that on an application for…
Lesley & Lesley [2015] FamCA 894
Citation 11 (Para 14)

…In Lesley & Lesley [2015] FamCA 894, McClelland J at [62] adverted to the different nature of the administrative procedure in comparison to an interim court hearing: In applying to the court for a departure order, practitioners should be aware of the limited ability of the court to resolve factual controversy in in…
Acton & Burton [2015] FamCA 469
Citation 12 (Para 17)

…tters which are significantly in contest in the truncated process of an interim hearings has been commented on numerous times: eg, Acton & Burton [2015] FamCA 469 at [26]; Gresham & Gresham [2018] FamCA 841 McClelland J at [156]. However, limited findings according to the ordinary civil standard of proof are not en…
Yewen & Child Support Registrar & Anor [2014] FCCA 2399
Citation 13 (Para 12)

…ed in a manner characterised as being less adversarial, whilst, at the same time, remaining fair: Yewen & Child Support Registrar (2014) 290 FLR 366; [2014] FCCA 2399 at [79]; Warwick & Cutler [2016] FamCA 934 (“ Warwick ”). In Warwick at [59] McClelland J (as he then was) in this Court observed that since the enac…
Saberton & Saberton [2013] FamCAFC 89
Citation 14 (Para 16)

…an application under s 117 of the Assessment Act: Seymour & Seymour [2011] FamCAFC 97 (“ Seymour ”) at [84]; Babbit at [134]; Saberton & Saberton [2013] FamCAFC 89 (“ Saberton ”) at [12] Lokare & Baum [2019] FamCA 196 at [485].…
[1991] FAMCA 93 [1991] FAMCA 93
Citation 15 (Para 1)

…this expression is the following commentary in relation to s 117(2)) given in In the marriage of Gyselman (1992) FLC 92-279; (1991) 103 FLR 156; [1991] FamCA 93 at 79,064-5: Whilst it is not possible to define with precision the meaning of that term, as a generality, it is intended to emphasize that the facts of…
[1993] FAMCA 21 [1993] FAMCA 21
Citation 16 (Para 22)

…In the Marriage of Sheahan (1993) FLC 92-375; (1993) 113 FLR 429;(1993) 16 Fam LR 437; [1993] FamCA 21 the Full Court said at 79,884 in relation to the expression “ in the special circumstances of the case ” that the ''relevant facts of the particular case must be considered to determine whether they constitute sp…
[2006] FAMCAFC 1346 [2006] FAMCAFC 1346
Citation 17 (Para 20)

…subject of considerable judicial comment in different legislative contexts. In the well-known decision of Goode and Goode (2006) FLC 93-286; [2006] FamCAFC 1346 (“ Goode ”) at [64] the Full Court, in discussing s 65DAA of the Act, found only limited assistance statements about the meaning of “consider” by the Federal…
[2011] FAMCAFC 151 [2011] FAMCAFC 151
Citation 18 (Para 13)

…In Babbit & Babbit (2011) 46 Fam LR 77; [2011] FamCAFC 151 at (“ Babbit ”) [134] the Full Court explained the broad structure of the Assessment Act, relevantly, as follows: In analysing the authorities on the point it is necessary to understand the structure of the Assessment Act. Applications for child support depar…
[2011] FAMCAFC 97 [2011] FAMCAFC 97
Citation 19 (Para 16)

…) is fully satisfied, the Court would not have jurisdiction to hear and determine an application under s 117 of the Assessment Act: Seymour & Seymour [2011] FamCAFC 97 (“ Seymour ”) at [84]; Babbit at [134]; Saberton & Saberton [2013] FamCAFC 89 (“ Saberton ”) at [12] Lokare & Baum [2019] FamCA 196 at [485].…
Tickner v Chapman 400 ALR 417
Citation 20 (Para 20)

…Court decision Aboriginal & Torres Strait Islander Affairs, Minister for & Norvill v Chapman (1995) 133 ALR 226; [1995] FCAFC 1726 at 462, which had been eschewed in Goode , specifically, the definition in the Oxford English Dictionary definition that “‘consider’ used as a transitive verb” means “ to contemplate men…

Legislation Cited

Child Support (Assessment) Act 1989 (Cth) 116, 117, 124, 98E, 98R, 98S
7 mentions (from Para 5)
Family Law Act 1975 (Cth) 60CC, 65DAA, 74
4 mentions (from Para 3)
Family Law Rules 2004 (Cth) 1.12, 4.18, 4.23
4 mentions (from Para 9)
Evidence Act 1995 (Cth) 140
2 mentions (from Para 17)
Tribunals Amalgamation Act 2015 (Cth)
1 mention (from Para 12)

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

ORDER MADE BY:	HARPER J
DATE OF ORDER:	5 AUGSUT 2021