Farnell and Farnell - [2006] FMCAfam 24

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FARNELL & FARNELL

[2006] FMCAfam 24

CHILD SUPPORT – Order for departure – income, earning capacity, property and financial resources of parents – special needs of child – education at private school – father’s own actions reduce his income – examination of reasons – whether parties can reasonably afford private school fees - “just and equitable” – “otherwise proper” – no explanation of significant delay in prosecuting claim.

Child Support (Assessment) Act 1989 (Cth) ss.4, 117

Gilmour and Gilmour (1995) FLC 92-591
Liesert v Nutsch (1996) FLC 92-665
Bryant and Bryant (1996) FLC 92-690
T & T (1984) FLC 91-588
CRW & CML (No. 1) [2003] FMCAfam 235
Bendeich and Bendeich (1993) FLC 92-355

Applicant:

MS FARNELL

Respondent:

MR FARNELL

File Number:

LNM 1059 of 2003

Judgment of:

Roberts FM

Hearing date:

6 October 2005

Date of Last Submission:

6 October 2005

Delivered at:

Hobart

Delivered on:

3 February 2006

REPRESENTATION

Counsel for the Applicant:

Mr M Foster

Solicitors for the Applicant:

PWB Lawyers

Counsel for the Respondent:

Mr M Trezise

Solicitors for the Respondent:

Bartletts

ORDERS

That pursuant to Section 117 of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment of child support payable by MR FARNELL (“the payer”) to MS FARNELL (“the payee”) for J born in 1997 and Z born in 2000 (“the children”) as follows:
(a)for the period 1 July 2005 to 30 June 2007 (“the relevant period”) the annual rate is set at $12,150.
That the following are to be credited towards the payer’s liability pursuant to Order No. 1 hereof:
(a)Any amount paid by the payer to the payee pursuant to any administrative assessment of child support for the relevant period;
(b)Any amount that the payer has paid, or is liable to pay to the H School for the education of the children or either of them for the relevant period.

IT IS NOTED that publication of this judgment under the pseudonym Farnell & Farnell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

LNM 1059 of 2003

MS FARNELL

Applicant

And

MR FARNELL

Respondent

REASONS FOR JUDGMENT

The Proceedings

These proceedings have had a somewhat unusual history in that MS FARNELL (“the Mother”) first filed her Application in relation to child support in the Family Court of Australia on 21 February 2002. Parenting proceedings were also being conducted in the Family Court.
Neither party appears to have pursued those parenting and child support proceedings with very much vigour because they remained unresolved for nearly three and a half years before a Registrar transferred the child support proceedings to this Court on 10 August 2005. Counsel for the Mother said in his opening that he would explain that delay, but he did not really do so.
On 30 November 2005 the balance of the proceedings were also transferred to this Court. However, I am only dealing with the child support application in this decision.

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.

Continue reading Farnell and Farnell

Details

AGLC: Farnell and Farnell [2006] FMCAfam 24
Case: [2006] FMCAfam 24
Decision Date: 3 February 2006

CaseChat Overview and Summary

The case of Farnell and Farnell involved a dispute between MR Farnell and MS Farnell regarding the assessment of child support for their children, J and Z. The matter was heard in the Family Court of Australia, where the primary concern was the deviation from the administrative assessment of child support payable by MR Farnell to MS Farnell for the period from 1 July 2005 to 30 June 2007. The court was tasked with determining whether the statutory child support payments should be adjusted from the administrative assessment and if so, by how much.

The legal issues that the court had to address included whether there were circumstances that warranted a departure from the administrative assessment of child support as per Section 117 of the Child Support (Assessment) Act 1989. Specifically, the court had to consider if there were special or unusual circumstances that could justify setting a different annual rate of child support for the specified period. Additionally, the court needed to determine if any payments made by the payer for the education of the children should be credited towards the child support liability.

In reaching its decision, the court meticulously reviewed the evidence presented by both parties and the statutory provisions governing child support assessments. It found that there were indeed special or unusual circumstances that warranted a departure from the administrative assessment. These circumstances included factors such as the specific educational needs of the children, which necessitated additional expenditure on their education. Consequently, the court set the annual rate of child support at $12,150 for the relevant period, which was lower than the administrative assessment. Furthermore, the court ruled that any payments made by the payer for the children’s education during the relevant period should be credited towards the child support liability.

As a result of the court's decision, the orders included setting the annual rate of child support at $12,150 for the period in question and crediting any relevant educational payments made by the payer towards the child support liability. This outcome reflects the court's consideration of the special circumstances presented and its aim to ensure a fair and just resolution in accordance with the statutory framework.

Orders

Orders of the court

That pursuant to Section 117 of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment of child support payable by MR FARNELL (“the payer”) to MS FARNELL (“the payee”) for J born in 1997 and Z born in 2000 (“the children”) as follows:

(a) for the period 1 July 2005 to 30 June 2007 (“the relevant period”) the annual rate is set at $12,150.

That the following are to be credited towards the payer’s liability pursuant to Order No. 1 hereof:

(a) Any amount paid by the payer to the payee pursuant to any administrative assessment of child support for the relevant period;

(b) Any amount that the payer has paid, or is liable to pay to the H School for the education of the children or either of them for the relevant period.

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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