F and v

[2002] FMCAfam 365

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & V [2002] FMCAfam 365

CHILD SUPPORT – Application for departure from assessment – child aged 17 in full-time secondary education – application for maintenance of an adult sibling heard simultaneously.

Child Support (Assessment) Act 1989, ss.115(c), 117(1)(b), 123, 151B, 151C

Reid v Reid (1999) FLC 98–007

Applicant: I R F

Respondent: L N V

File No: PAM 428 of 2001

Delivered on: 11 May 2001

Delivered at: Parramatta

Hearing Date: 4 May 2001

Judgment of: Scarlett FM

REPRESENTATION

Counsel for the Applicant: Mr Foster

Solicitors for the Applicant: Paltos & Cumming

Solicitors for the Respondent: In person

ORDERS

1. That there be a departure from the administrative assessment dated
   13 February 2001 for child support in respect of the child M R F born
   5 October 1983 only to the extent that the period be extended until the said child completes his secondary education.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM428 of 2001

I R F

Applicant

And

L N V

Respondent

REASONS FOR JUDGMENT

Application

1. The applicant father seeks a departure from the administrative assessment dated 13^th February 2001 for child support in respect of the child M R F, who was born on 5^th October 1983.

2. At present, the assessment provided for an amount of $1365.83 per month, commencing from 1^st March 2001. The applicant seeks that this amount be reduced to $930.00 per month until completion of the child’s secondary education. He also seeks that he pay all private school tuition fees, fees for extra curricular activities and any additional tutorial fees in respect of the said child’s attendance at the

   
   

   H G School.

3. The grounds for the application are that the capacity of the applicant to provide financial support for the child is significantly reduced because of his commitments necessary to enable him to support himself and his adult daughter, S L F. S was born on 28^th May 1981, and is currently a full time student at the University of Sydney.

4. The further grounds are, that in the special circumstances of the case:

   a)the costs of maintaining the child are significantly affected because he is being cared for and educated in the manner that was expected by the parties;

   b)application of the provisions of the Child Support (Assessment) Act would result in an unjust and inequitable determination of the level of financial support because of the income, earning capacity, property and financial resources of the parties; and

   c)that it is otherwise proper to make the order sought.

5. The respondent mother opposes the application.

Background

1. The parties were married on 2^nd July 1977 and separated on 12^th February 1994. The decree dissolving their marriage became absolute on 2^nd June 1995. There are two children of the marriage, S, the subject of a maintenance application which was heard simultaneously with this application, and M, the subject of this application. He is currently in Year 12 at The H G School, so he will complete his secondary education a bit later this year.

2. There were property proceedings between the parties, which were heard by the Family Court of Australia at Parramatta on 26^th August 1998. As a result of those proceedings, the applicant’s interest in the former matrimonial home was transferred to the respondent, subject to the existing mortgage.

3. Both of the children attended private schools. S completed Year 12 at Tara Anglican School for Girls in 1998. The respondent was responsible for her school fees. M’s school fees were, and are, met by the applicant. Both children reside with the respondent.

The relevant law

1. This departure application is brought pursuant to the provisions of section 115(c) of the Child Support (Assessment) Act, which states:

   “Where the child support is for a period beginning on or after

   
   

   1 July 1992 and:

   i)the carer entitled to child support or the liable parent is party to an application pending in a court having jurisdiction under this Act; and

   ii)the court is satisfied that it would be in the interest of the carer and the parent for the court to consider, at the same time as it hears that application, whether an order should be made having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to the child in the special circumstances of the case..”

2. There is, in this case, an existing application for child maintenance, which was able to be heard (and was heard) at the same time, so the requirement of s.115 is met (Reid v Reid (1999) FLC 98-007).

3. Section 117(1)(b) sets out the circumstances where the Court may make a departure order. The Court must be 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.”

4. The grounds in subsection (2) are effectively those which the applicant has pleaded in his application.

5. Section 123 is relevant to this application, providing that –

   “(1) Application may be made to a court having jurisdiction under this Act for an order that a liable parent provide child support for a child otherwise than in the form of periodic amounts paid to the carer entitled to child support.”

6. Payment of school fees would be an example of the sort of child support contemplated by s.123(1).

7. Section 151B(1) provides that –

   “If a child turns 18 during a year in which the child is in full-time secondary education, a carer entitled to child support for the child may apply for an administrative assessment, or a child support agreement, in relation to the child to continue in force until the last day of the secondary school year in which the child turns 18.”

8. The specific requirements are set out in s.151C –

   “(a) the child has turned 17; and

   (b) an administrative assessment, or a child support agreement, in relation to the child either is in force, or is likely to be in force on the day before the child’s 18^th birthday; and

   (c)the child is likely to be in full-time secondary education on the child’s 18^th birthday; and

   (d)the child’s 18^th birthday will occur on or before the last day of the secondary school year; and

   (e)either:

   (i)the application is made before the child’s 18^th birthday;

   (ii)there are, in the Registrar’s opinion, exceptional circumstances justifying the making of the application after the child’s 18^th birthday.

9. All of these conditions apply in respect of the child M.

Evidence

1. There is little in issue concerning the facts. The applicant is already paying M’s school fees, although he does not pay all his education expenses. The respondent paid all S’s school fees until S completed Year 12. It would appear that the applicant has responsibility to contribute to S’s support, although there is no maintenance order in force. Some of the expenses being paid for S, such as ballet subscriptions, are luxury items.

Conclusions

1. The respondent pointed out that one point taken into account by the Family Court in determining the property entitlements of the parties was that each party had undertaken to be responsible for the school fees of one of the children until that child completed secondary school. The respondent complains that she has, in fact kept her part of the bargain by paying S’s school fees up to the completion of Year 12, and it is only just and equitable that the applicant should keep his part. She sees his applicant to reduce the amount of child support by claiming a credit on account of school fees as an attempt to “renege” on the agreement between them.

2. As M attains the age of 18 years on 5^th October, shortly before he commences his Higher School Certificate examinations, it would be most unjust on him to cut his child support. I am satisfied that child support payments should continue until he completes secondary school, which would only be a matter of weeks after his birthday.

3. In all other respects, I am not satisfied that it would be just and equitable to reduce the amount of child support currently being paid.

4. I propose to order that there be a departure from the administrative assessment dated 13^th February 2001 for child support in respect of the child M only to the extent that the period be extended until the child completes his secondary education.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:  A. Coutman

Date:  31 October 2002