Cleaves & Cleaves
[2021] FamCA 571
•5 August 2021
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 pseudonym Cleaves & Cleaves has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J:
INTRODUCTION
These proceedings came before me on 24 May 2021 in a judicial duty list.
The Applicant Wife (‘the wife”) commenced these proceedings by filing an Initiating Application and an Amended Initiating Application on 15 April 2021, seeking both final and interim orders.
On a final basis she seeks property adjustment orders under s 79 of the Family Law Act 1975 (Cth) (“the Act”) and departure orders from the administrative assessment of child support by the Child Support Agency (“the Agency”) for periodic and non-periodic child support payable by the Respondent Husband (“the husband”) in respect of the parties’ two children: X, born … 2012 aged 9 and Y, born … 2015 and aged 5 (together referred to as “the children”). She also sought interim orders for litigation funding and orders for child support departure orders, identical to those sought on a final basis.
On 24 May 2021, the parties resolved their interim dispute concerning the provision of litigation funding for the wife and orders were made by consent.
The balance of the interim dispute that remained to be determined concerned the interim application for a child support departure orders (“departure orders”) pursuant to s 117, and non-periodic support in the form of the payment of school fees and health insurance pursuant to s 124, of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”).
On 24 May 2021, I made the consent orders and made directions for the wife to file and serve written submissions by no later than close of registry filing on 28 May 2021. The wife filed her written submissions on 28 May 2021. The husband was directed to file and serve by close of registry filing on 4 June 2021. The husband filed his written submissions on 7 June 2021.
ORDERS SOUGHT
The wife seeks interim child support relief in terms of her Amended Initiating Application at [5]-[7] in the following terms:
Child Support Departure
5. That as and by way of departure from the administrative assessment of child support issued in relation to the children X born in 2012 and Y born in 2015 (collectively referred to as “the children”).
5.1 the father pay periodic child support to the mother or as she may direct in writing, in the amount of $550 per week per child and in relation to same:
5.1.1 the first payment shall be made within 7 days of the date of the making of these Orders with payments to be made weekly thereafter;
5.1.2 the final payment shall be made in relation to each child upon the happening of a child support terminating event as defined by the Child Support (Assessment) Act 1989 (Cth) I respect of that child, or the conclusion of the calendar year in which each child completes their secondary education (whichever occurs later);
5.1.3 the amount referred to in this Order shall be varied on the review date in each year, commencing 1 July 2022 by multiplying the amount payable on that date by the fraction N/B where “N” is the Consumer Price Index (All Groups for Sydney) published by the Australian Bureau of Statistics (“CPI”) in respect of the quarter year immediately preceding the review date and “B” is the CPI in respect of the quarter year ending 12 months prior to the review date.
5.2 the father pay, as and from the date of the making of these Orders, non-periodic child support as follows:
5.2.1 all school fees and any other expense and charges as recorded on the invoice issued by the children’s school/s which they may attend from time to time including but not limited to all tuition fees payable, including compulsory levies, voluntary building fund contributions, compulsory excursions, technology levies, co-curricular activities run by the school/s, compulsory materials and resources, camps and excursions and any additional subjects in which the children are enrolled;
5.2.2 premiums for the existing private health insurance policy covering the children, or another prior agreed policy at the existing or superior coverage;
6. That the father’s obligation to pay non-periodic child support pursuant to these Orders terminates in relation to each child upon that child completing their secondary education.
7. That the parties forthwith do all acts and things necessary to cause a copy of these Orders to be registered with the Child Support Registrar.
The husband seeks that the wife’s interim orders for child support be dismissed.
THE LAW
Division 4.2.5 of the Family Law Rules 2004 (Cth) (“the Rules”) deals with applications for departure orders. The husband contended that the wife had not proved service upon the Child Support Registrar of the Agency to comply with Rule 4.23. However, there was evidence of service and acknowledgement by the Registrar. I accept service took place in accordance with the Rules.
The husband further contends that the wife’s application did not comply with Rule 4.18. This rule requires an application for a departure order to have filed with it an affidavit attaching a copy of any decision, notice of decision or assessment made by the Child Support Registrar relevant to the application and statement of reasons for that decision. However, the wife’s evidence does include a copy of the current notice of assessment. This runs from 9 March to 19 August 2021, providing for the husband to pay annual child support of $10,814 or $901.17 per month. There is however no copy of any decision or reasons for decision provided. Rule 1.12 permits the Court of its own initiative to dispense with compliance with any rule. I propose to exercise this discretion in this case. I do not consider it appropriate to dismiss the wife’s application for non-compliance with Rule 4.18, where there appears to have been at least partial compliance.
However, other challenges were made to the relief sought by the wife. Senior counsel for the husband relied on the fact that the parties had already engaged the administrative procedure conducted by the Agency which resulted in the assessment which runs from 9 March to 19 August 2021. He submitted the Assessment Act is structured “to enable a process of decision making with review processes occasioning appropriate checks and balances so as to achieve a just and fair outcome”. He also emphasised that the Child Support Registrar is able to vary administrative assessments up to 12 times under s 98S of the Assessment Act, including variations to different parts of the assessment under consideration.
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 support applications; the circumstances in which departure applications are to be heard by the Court are limited, given the desirability of such issues being determined 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 enactment of the Tribunals Amalgamation Act 2015 (Cth), this Court no longer has jurisdiction to hear appeals on questions of law in respect to child support and this is a fact which supports the conclusion that court proceedings are appropriate in limited circumstances.
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 departure orders are regulated by Division 4 of Part 7 of the Assessment Act. An applicant is entitled to make application for child support departure orders pursuant to s 116 of the Assessment Act, and the mandatory considerations and dispositive powers of the Court in respect of such applications are delineated by ss 117 and 118 of the Assessment Act. An applicant is entitled to make a departure application to the Court, provided one or more of the pre-conditions in s 116 apply. The need for a grant of leave under ss 111 and 112, which provisions fall within Division 3 of Part 7 of the Assessment Act, is imposed as a further condition only in certain limited circumstances.
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 interim proceedings. These same complications do not exist when making an application for determination under Part 6A of the CSA Act to the Registrar. In dealing with such a matter, the Registrar is acting in an administrative rather than judicial capacity and the procedure adopted is inquisitorial as opposed to adversarial (s 98H(1)(b) of the CSA Act). Moreover, the Registrar is not bound by the rules of evidence (s 98H(4)).
Departure orders for periodic child support are made under Division 4 of Part 7 of the Assessment Act. The husband argued the wife had failed to establish jurisdiction under Division 4. He contended that the wife could not satisfy s 116(1)(b)(i) and (ii) of the Assessment Act, which are in the following terms:
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case
The Full Court has made clear that without a finding by the Court that s 116(1)(b) 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].
Conformably with McLellend J’s comments in Lesley (above at [14]) the husband consistently contended in his submissions that the Court was disabled from making the necessary findings of fact at an interim hearing to sustain the wife’s application. There is not no doubt that the impossibility of making findings about matters 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 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 an interim order “[t]he evidence need not be so extensive and the findings not so precise” as on an application for a final order, but there is nothing to displace the applicability of the ordinary standard of proof in a civil proceeding set out in s 140 of the Evidence Act 1995 (Cth). This approach governs the necessary findings of fact to satisfy s 116(1)(b) even on an interim basis.
The wife argued sub-paragraph s 116(1)(b)(i) is satisfied because the wife is a party to an application pending before this Court. The husband denies this. He argued that there is now no pending application in this Court because the wife’s interim application for financial orders has been dealt with. I do not accept this argument. In Saberton at [16] and [18] the Full Court held where the Court assumes jurisdiction pursuant to s 116(1)(b) of the Assessment Act at a time when there was a relevant application pending, until final orders are made in the child support proceedings, jurisdiction is not lost merely because the pending application has been finalised. By parity of reasoning where a pending interim application is finalised, jurisdiction is not automatically lost for that reason. In any event, the wife remains a party to her own existing and undetermined application for final relief, which includes relief both under s 79 and the Assessment Act. This is a pending application.
Sub-paragraph s 116(1)(b)(ii) requires the court to be satisfied “it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case”.
It might be thought that the relevant satisfaction is not difficult to establish. The satisfaction to be reached is not that it is in the interest of both parties that a departure order be made. Rather it is that it is in the interests of both parties that the Court “consider” making an order. The verb “consider” has been the 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 Court in the various statutory contexts within its jurisdiction. At [64] in Goode, the Full Court said that “consider” 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; [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, 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 “consider” because its meaning in s 60CC was not actually in issue. Rather, in Tibb the Full Court diverged both from Goode and from the view of Watts J in Egan about the impact of Bondelmonte, and at [82] embraced the interpretations of “consider” used in the Federal 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 mentally, fix the mind upon; to think over, meditate or reflect on, 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 the basis that the High Court in Bondelmonte intended to say what the word “consider” imports when used in s 60CC(1) of the Act, namely, an obligation to give proper, genuine and realistic consideration. There is no reason to think “consider” means anything different in s 116(1)(b)(ii) to its meaning in ss 60CC or 65DAA. In light of the Full Court position expressed in Lovett I will follow the meaning given in Bondelmonte.
Understood in its ordinary meaning, subparagraph s 116(1)(b)(ii) therefore requires the Court to make a finding of satisfaction about whether it is in the interest of both parents for the Court to give proper, genuine and realistic consideration to whether an order should be made “in the special circumstances of the case”. Power within jurisdiction to make a periodic departure order is founded upon that finding.
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 special circumstances which ... if not taken into account, would result in injustice or undue hardship to any person''. The determination of whether special circumstances exist requires consideration of all the circumstances of the case: Hides and Hatton (1998) FLC 92-759 at 84,355.
The expression “in the special circumstances of the case” is also found in s 117 of the Assessment Act. The usual authority cited for the ambit of 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 the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery's case (p 77,897), Kay J, adopting the view in Philippe and Philippe (1978) FLC 90-433 at p 77,202 in a different context, said that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases".
These principles remain applicable: Turner & Turner and Anor (2016) FLC 93-719; [2016] FamCAFC 121, at [108].
Thus for the wife to establish jurisdiction, the Court must find at this interim stage the circumstances of the case are relevantly “special”. In other words, the question of whether consideration by the Court is in the interest of both parents is informed by what elements are said to render the circumstances of the case special, or exceptional so as to take them outside the “ordinary run of cases” and the “rule” that child support should generally be dealt with by the administrative procedure to avoid injustice or hardship.
There is no particular guidance as to how a single instance judge forms a view about what elements of a case may take outside the ordinary run of cases or make it exceptional. Presumably it is appropriate to have resort to knowledge and experience gained through hearing and determining other cases, or consideration of other decisions, concerning child support. However, it seems to me that the relevant “specialness” must inhere in issues connected and relevant to child support and in particular 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 least, by reason of the fact that the Agency had indicated to the wife that it would delay considering her application to amend the then current administrative assessment until the Court had considered her application for a departure order. Thus the administrative procedure was stalled until the Court’s determination. This took the case outside the ordinary run of cases.
The wife made oral and written submissions as to why it would be in the interest of both the wife and the husband. She submitted that the husband is currently assessed to pay and pays child support for the two children in total monthly sum of $901.17 (which equates to $207.96 per week or a little over $100 per child). The wife argued that this existing child support assessment is patently inadequate in light of her recurrent expenses and limited access to financial resources. She argued the evidence showed the husband on the other hand has access to vast financial resources, including funds in his own and family trust accounts amounting to some millions of dollars. The wife acknowledged the husband pays the children’s school fees and health insurance. The wife argued she should not be required to embark on the process of objection within the administrative processes of the Agency, which would not see the issue of child support resolved for many weeks and put her financial capacity for the children at risk. She also submitted in writing that it is in the interests of both, for the Court to consider the wife’s application because they have both put on evidence on the application and it is preferable for the Court to determine the application rather than the parties be deferred to an administrative determination and likely lengthy delay.
The husband argued that it was contrary to his interests for the Court to consider whether a departure order should be made for the following reasons. First the wife, with the benefit of legal advice, has chosen not to make any application within the administrative procedure for review or objection concerning child support. He argued a fresh assessment would be issued in August 2021. The husband submitted, which I accept, that the wife gave no evidence as to why she has chosen not to follow the administrative processes, which, according to the authorities, are preferred. In oral argument, the husband pointed out that the wife seeks on a final basis the same relief for child as she seeks on an interim basis. He argued the Court processes should not be prosecuted at an interim stage where the administrative process remains available. Secondly, there is no evidence the Child Support Registrar has refused a review under Part 6A of the Assessment Act because the circumstances are too complex: ss 98E & 98R. Thirdly, without the basis for the existing assessment in evidence, it is not possible for the Court to take account of the factual elements of the administrative assessment in forming a view as to whether it is in the interests of both parents for the Court to consider making a departure order. Fourthly, the husband has made his opposition to the Court process unequivocally clear on the basis the administrative process should be followed. Fifthly, part of the departure order seeks a non-periodic order in respect of private school fees, but these are not in arrears, and the husband states he will continue to pay these fees from earnings or capital.
I prefer the arguments of the husband. The wife’s contention concerning the interest of both parties seemed in truth to go no further than submitting that because the administrative processes for objection within the Agency would take time and because both parties had prepared evidence and arguments in relation to her application for a Court ordered departure, it was in the interest of both for the Court to consider whether a departure order should be made. I do not accept these arguments. The fact that the administrative processes may take time is inherent in those processes. They are nonetheless the preferred processes. Delay in those processes of itself does not demonstrate that it is in the interest of both parties for the Court to consider making a departure order. The authorities are clear that Court processes are the exception. It follows that the relevant interest of both parties in the Court’s consideration should not be defined by a competition between administrative or Court processes in respect of delay. Parties should not, and should not be encouraged to, make Court applications because they want to escape the administrative process and achieve what they perceive may be a quicker outcome in Court. Such a limitation on what is in the interest of both parties is consistent with the primacy and purpose of the administrative procedure.
Furthermore, the fact there may be a large disparity in, or access to, financial resources between the parties does not of itself necessarily bear on the question whether it is the interest of both for the Court to embark on the relevant process of considering whether a departure order should be made. It may be in the interest of one party, but that is not the test. Disparity of wealth may or may not be a factor which makes the circumstances of the case exceptional, a question I will come to below. Finally, if the fact both parties had prepared to debate an application for a departure order was sufficient to demonstrate it was in the interest of both parties for the Court to entertain consideration, almost any application to the Court for a departure order would suffice. Again this is not consistent with the purposes of the Assessment Act and the primacy which should be afforded to the administrative procedure.
At this point it is convenient to note that a finding of “special circumstances” is not only necessary for the purposes of s 116(1)(b), it is also necessary before the Court can make an order under s 117. The wife specified that she relied on s 117(2)(b)(ii) and (c)(ia) and (ib). The relevant parts of s 117 are as follows:
Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
(a) application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2) For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)…;
(aa)…;
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i)...;
(ia)…;
(ib)…;
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i)…; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii)...
Obviously every case has some unique features. But this does not make every case special. There is nothing in the evidence which convinces me for the purposes of an interim hearing that the circumstances of this case are relevantly special. The factors relied upon by the husband to argue it was not in his interest to consider making a departure order, and set out above at [28] also demonstrate why the case falls within the ordinary run of cases. There is nothing otherwise pointed to which could lead to the conclusion that the facts are peculiar and set it apart from other cases. Disparity of wealth or access to financial resources does not of itself amount to a special circumstance: Seymour at [119].
It is true that in Seymour at [120] Strickland J noted the primary judge did find “the parties’ common desire to continue the children’s education at [a private school] could be a special circumstance for the purposes of the Act”. However, recent experience in this Court shows a mutual desire for private school education is a commonplace, not special. The circumstances revealed by the evidence are routinely met in this Court. One party, often but not always, the husband has greater access to financial resources, the other, often but not always the wife, has a greater burden of care for the children. The parties have decided to send their children to private schools. The husband pays the school fees but the wife wants this compelled by Court order. The evidence does not disclose special circumstances in this regard. On the evidence, in my view also the costs of maintaining the children are not significantly affected because they are being educated in the manner that was expected by their parents, especially since the father is paying the school fees. In any event, where the father is presently paying school fees, I would not be persuaded it is just and equitable or proper, to make a departure order.
Moreover, there was no dispute that the current assessment is to expire on 19 August 2021. Despite the submissions of the wife, there is no sufficient evidence at this early stage of the proceedings to find that administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the father as liable parent because of the income, property, financial resources or earning capacity of either parent.
There are no special circumstances in this matter that give rise to the Court being satisfied that it is in the interests of both the husband and wife for the Court to entertain the present departure application nor would they suffer undue hardship or injustice if they were left to pursue the administrative review process.
I am not satisfied the wife has established jurisdiction for a departure order under Division 4 of Part 7 of the Assessment Act.
I also accept the husband’s argument that at this interim stage I am unable to make a finding that it would be just and equitable or otherwise proper to make a departure order under Division 4, especially in light of the likely fresh assessment in August 2021. In all of the circumstances and concomitant with the objects of the Assessment Act, it is appropriate that the administrative procedure follow its statutory pathway, in particular, in the context of this interim application where the evidence of the parties and their respective financial circumstances cannot be tested by cross examination.
An order for child support otherwise than in form of periodic amounts can be made under the provisions of Division 5, especially s 124, upon which the wife relies for the order for the husband to pay school fees and health insurance.
Putting aside other considerations, as pointed out, there was no dispute that the husband has been paying the schools fees. He argued that the order proposed by the wife would oblige him to pay private school fees for about ten years. This he argued was onerous and made no allowance for changes in his circumstances. I am not persuaded it would be just and equitable or proper at this early stage of the proceedings to make the non-periodic child support order sought by the wife.
My conclusions in this judgment should not be taken as denying there is any merit in the wife’s claims to child support. However, insufficient reason has been put forward by the wife at present and at this early stage of the proceedings to persuade me why the administrative process, including reviews, should not determine what child support is appropriate. If this takes time, or more time than the wife or husband would like, that of itself does not justify using the Court for essentially the same purpose. Moreover, a fresh assessment is due to issue within a short time in any event.
I will dismiss the wife’s Application in a Case.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 5 August 2021
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