Gingham and Gingham

[2007] FamCA 815

FAMILY COURT OF AUSTRALIA

GINGHAM & GINGHAM [2007] FamCA 815

FAMILY LAW - APPEAL – Leave to appeal - From decision of Federal Magistrate – CHILD SUPPORT – Payment of private school fees sought in addition to periodic support - Dismissal of Application for Departure – Order made that the child attend a public school – Special circumstances - Special needs of child – Whether a private school most adequately catered for the child’s needs compared to a public and/or coeducational school  – Exclusion of opinion evidence  - Whether the remaining evidence satisfied the grounds for departure such that the father should pay for private school fees for the child– Whether an agreement as to schooling existed between the parents - Whether a denial of natural justice 

Child Support (Assessment) Act 1989 (Cth) ss 117; 117(2)(b)(i); 117(2)(b)(i)(B); 123; 124; 125

Re F (Litigants in Person Guidelines) (2001) 27 Fam LR 517

APPELLANT: MS GINGHAM

RESPONDENT: MR GINGHAM

FILE NUMBER: BRM 2665 of 2003

APPEAL NUMBER: NA 38L of 2007

DATE DELIVERED: 14 August 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: WARNICK J

HEARING DATE: 23 July 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 23 April 2007

LOWER COURT MNC: [2007] FMCAfam254

REPRESENTATION

COUNSEL FOR THE APPELLANT: N/A

THE APPELLANT IN PERSON Ms Gingham

COUNSEL FOR THE RESPONDENT: Dr Sayers

SOLICITOR FOR THE RESPONDENT: Crowley Greenhalgh Solicitors

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Warnick delivered this day will for all publication and reporting purposes be referred to as Gingham & Gingham.

Orders

1. That the application for leave to appeal the orders of Wilson FM made 23 April 2007 be dismissed.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA38L of 2007
File Number: BRM 2665 of 2003

MS GINGHAM

Appellant

and

MR GINGHAM

Respondent

REASONS FOR JUDGMENT

1. On 23 April 2007, Wilson FM dismissed an application (heard on 5 December 2006) by Ms Gingham for an order under the Child Support (Assessment) Act 1989 (Cth), that Mr Gingham, the father of their nine year old child X, pay the fees for X to attend “BBC”, in 2007 and thereafter.

2. On the day that the Federal Magistrate delivered judgment, the mother made orally a further application for an order that “pursuant to s 123 the father pay a lump sum of $1500.00 and a similar amount annually thereafter so that the child can attend “IBGS”, as in the reasons for judgment of Wilson FM.  Of this application, the Federal Magistrate further said:

   As I understood the mother’s application, it was that she would meet any shortfall in the fees of that school over and above $1,500 per annum.

3. Also, on the day of judgment, the father made an application for an order that, until further order, the child attend P State School (“PSS”).

4. Wilson FM dismissed the mother’s further application, granted the father’s application and ordered that the parties attend Family Dispute Resolution.

5. Save for the order relating to Family Dispute Resolution, the mother sought leave to appeal the orders and these reasons are in respect of that application.  However, the question of leave did not receive any attention in argument before me, neither in the written summaries nor in oral submissions, both of which addressed the grounds in the proposed Notice of Appeal as if either leave had been granted or no question of leave arose.  In effect, no issue about leave was taken.  In these circumstances and having regard to the significant financial impact of the decision and the nature of the questions raised, I have approached the application on the basis that if any merit was found in any argument, I would grant leave.

6. The mother addressed no arguments to the reasons given for rejection of her oral application for an order that the father pay some of the fees relating to the child’s proposed attendance at IBGS.  As to the order that the child attend PSS, the only arguments were that the Federal Magistrate had wrongly accepted the father’s evidence that the child had expressed a wish to a police officer to attend PSS, and that, if the mother’s argument against the dismissal of her application that the father pay all of the fees for the child’s attendance at BBC succeeded, then the order that the child attend PSS must fall.

7. Consequently, virtually all arguments were directed to the proposed appeal against the order dismissing the wife’s initial application relating to BBC school fees.  Before I outline those arguments, I refer to some characteristics of the conduct of the application before me.

8. The mother, as she was before Wilson FM, was unrepresented.  The grounds of appeal were somewhat narrative in form, though the nature, if not the precise formulation of the complaints, was discernible.  During the hearing before me, some distillation, even metamorphosis of the arguments within the mother’s written submissions occurred.  Ultimately, I am satisfied that all the mother’s substantive complaints were identified and argued, though it is no longer necessary to say much of some of those that withered away in the process described and unnecessary to say anything of others.

9. The mother prepared an appeal book of some 491 pages.  It contained quite an amount of material filed in the Federal Magistrates Court not only after the hearing before Wilson FM in December 2006, but after the judgments were delivered on 23 April 2007.  It was apparent that further proceedings, related to issues with which the orders that the mother sought to appeal were concerned, were afoot.  However, it also appeared from the mother’s written submissions that, though she had filed no formal application, she wished to place further evidence before me on the application for leave to appeal.  With regard to some of this material, at the hearing I refused the mother’s requests, for reasons I gave.  As to other parts, I gave no ruling about its reception at the time, but will do so in the course of these reasons.

10. On many (photocopied) documents in the appeal book, handwriting appears.  Much of it is incontestably the mother’s.  I cannot be confident in all instances about the time at which the handwriting was placed on the documents.

11. Finally, before outlining and then discussing in detail the arguments in support of the proposed appeal, I mention some matters that arose against the background just discussed, which though not arguments in support of grounds of appeal, deserve mention.

The form and content of the application heard on 5 December 2006

1. The application of the mother was filed on 24 May 2006 in the form “Child Support – Application for Departure Order” and the mother sought:

   The father to pay all private tuition education and associated costs for [X] direct to the provider of those services.

2. That application was later (apparently) amended by the addition of hand writing in several ways, including further orders sought that the father pay specific sums by specific dates, including amounts relating to school uniforms.  As well, an order was sought, “The father to pay child support 15^th month [sic] for $1,880-50.”

3. In his reasons for judgment, Wilson FM described the mother’s application as one in which she sought:

   1. …orders from the court compelling his father… to pay additional monies by way of child support.  Essentially, the relief that the applicant seeks is to compel the respondent father to pay private school fees for the child for the school year commencing in 2007.

4. However, in the following sentence, the learned Magistrate said in his reasons:

   1. … Although the application specified one school in particular, the application can be dealt with at a more general level – should the father be required to pay, either in addition to, or as part of, his child support obligations, the costs of the private school education for his son, who is now in year 4 at primary school. (emphasis added)

5. The learned Magistrate then listed the first three orders that the applicant sought in her amended application, but did not refer to the fourth order sought, about periodic child support.

6. I opine that ordinarily very different considerations may apply, depending on whether an applicant seeks a lump sum or payment in a form other than periodic child support, in substitution, in whole or in part, for a periodic child support payment, or on the other hand, by way of increase in the overall liability of the payer.

7. As seen, the Federal Magistrate’s reasons may cast the mother’s application as being in the alternative.

8. However, elsewhere in his reasons, Wilson FM, quoting from material before him, described the then existing child support entitlement as being $22,528.00 per annum.  That equates very closely to the $1,880.50 per month referred to in the amended application of the mother.  That, and the mother’s response when I asked her what the basis of her application had been, leads me to think that the mother’s application sought to increase the father’s liability, by the extent of the school fees.  Any significance to the question of what was sought is at least reduced by the finding of Wilson FM that the father could meet even the increased liability.  In any event, the possible ambiguity does not affect the outcome of any argument raised before me.

The section of the Child Support (Assessment) Act (“the Act”) under which Wilson FM dealt with the mother’s application

1. The mother commenced her oral submissions to me by suggesting that her application had been wrongly dealt with below, under s 123, rather than rightly, under s 124 of the Act. This was not a ground of appeal but the two sections were mentioned in the Notice of Appeal in the section for “The orders sought” on appeal and the mother raised the argument in her written submissions.

2. As earlier seen, the mother’s application was in the form of an application for a Departure Order, which was (probably) the wrong form.  No doubt because of this, on a procedural hearing of the application on 17 July 2006, Jarrett FM made orders for the filing of material and the fixing of a hearing date and the orders noted:

   3. … That the mother’s application…be treated as an application under section 124 of the…Act…for an order that there be provision of child support other than by way of periodic payment paid to the parent entitled to such payments.

3. The mother argued briefly that, had the application been treated as one under s 124, a lower “threshold” would have applied than that required under s 123.  I found and indicated so to Ms Gingham, the submission to be puzzling.  In my view, s 124 merely represents a mandated approach to an application under s 123.  On the other hand, as I also indicated, a difference in the applicable tests arises if an applicant seeks a payment in non-periodic form in addition to a liability for periodic child support as distinct from merely in substitution for periodic support; in the former event, under s 125, the applicant must establish “special circumstances”.

4. The mother did not press the argument, which in my view was misconceived.

The approach taken by the Federal Magistrate

1. Wilson FM commenced his examination of the law that governed the application before him by addressing the question of whether Part 7 Division 5 of the Act conferred an independent source of power to award child support otherwise than in the form of periodic payments, or whether that division limited the power to the substitution of non-periodic support for assessed periodic support.

2. Whether or not that was quite the right question (as opposed to; is there is an independent source of power to order a lump sum, whether in substitution for, or by increasing the payer’s liability, or can that be done only by way of a departure application?), is not a point taken in this appeal.

3. Wilson FM approached the matter as a departure application, to which the terms of s 117 of the Act applied. Again, whether that was necessary or not, is not in issue in the proposed appeal.

The arguments in respect of the proposed appeal

1. Wilson FM took the applicant’s case as resting on two grounds that, in the special circumstances of the case the costs of maintaining the child were significantly affected:

• “because of his special needs” (s 117(2)(b)(i)(B)); and

• “because the child [should be] educated in the manner that was expected by his parents” (s 117(2)(b)(i)).

1. As to the first ground, in essence, the mother’s case at trial rested on medical evidence that she contended established that X had “special needs”, namely schooling at BBC in particular, or in more general terms, at an all-boys private school.

2. The most significant argument that evolved in the application before me was that a ruling by Wilson FM, excluding much of the evidence of a Professor S (a clinical psychologist) and of Dr L (a consultant paediatrician) about that “need”, was wrong.

3. The mother also contended that certain events in the lead up to trial, in particular exchanges between herself and the solicitors for the father, touching upon her proposed witnesses and their evidence in chief, coupled with what developed at trial in respect of the “medical” witnesses just referred to, led to a denial of natural justice.

4. As to the second ground, the mother contended that the Federal Magistrate had wrongly failed to find that there was an agreement between the parties that X attend BBC from Grade 4.

5. The mother also submitted that, having found that the mother had established “special circumstances” as required by the Act, the Federal Magistrate should have gone on to make the order as sought by the mother.

6. In respect of the order granting the father’s request that the child attend PSS, the mother argued that the father had given false evidence.  In this respect, as in a number of others, the mother sought to adduce further evidence.

7. Finally, the mother argued that Wilson FM had wrongly found that there was no evidence that the child was of “superior intellect”.  In this regard the mother again sought to put further evidence before the court.

Was Wilson FM wrong to exclude much of the evidence of the “medical’ witnesses (and ancillary questions)?

1. I pointed out to the parties at the appeal hearing that although I had a transcript of “the hearing” on 5 December 2006, I did not have a transcript of Wilson FM’s ruling on the exclusion of much of the evidence from the medical experts.  In that respect, the transcript simply read “judgment delivered”.  I raised a concern about determining the argument in the absence of those reasons.  Ultimately the mother sought an adjournment to obtain them.  The father opposed that course and indicated that if an adjournment was granted, costs would be sought.  The mother said she could not pay costs as she is bankrupt.  For reasons that I gave, I decided, not without some discomfort, to proceed to determine the appeal.  My reasoning included that the arguments put to Wilson FM were available and his reasons for dismissal of the mother’s application included some mention of the exclusion of the evidence.

2. Leaving aside his curriculum vitae, the affidavit of Professor S was extremely short.  He deposed that X had been a patient of his since April 2002, and said:

   As of the date of this affidavit I still maintain my position and recommendation for an all boys private schooling as stated in the attached annexure.

3. One of the two annexures was a letter addressed “To Whom It May Concern” and dated 31 March 2004, (ie two and a half years before the hearing), which simply said:

   I support the recommendations of other health professionals that a private school education with positive firm disciplinary limits and boundaries would be beneficial to [X] who suffers from ADHD.

4. The second annexure was a letter of 17 May 2002, to solicitors apparently then acting for the father.  While that letter referred to behavioural problems being experienced by X at school, it made no mention of a recommendation as to schooling.

5. While in his curriculum vitae, Professor S indicated that he held a graduate diploma in educational psychology and had been involved in certain capacities with education departments or committees and at one time was a junior lecturer in education at the University of A, I am not persuaded by that that the Federal Magistrate ought therefore have found that the statements made by Professor S about the characteristics or features of private schooling in Brisbane were matters within his field of expertise.  Apart from that, in my view, other reasons are apparent, upon which the evidence of Professor S could have been rejected.

6. Nowhere does the Professor explain what it is about an “all boys” school rather than a co-educational school that renders it necessary or better for the child that he attend the former.

7. While the Professor refers to a school with “firm disciplinary” arrangements, in no way does that reference establish that a particular school offers such an arrangement, particularly in comparison with any other school, within or without the private school system.

8. Dr L wrote in a report dated 2 March 2004, annexed to his brief affidavit, that he had known X since his birth.  Since mid-2002 he had seen X in regard to educational and related behavioural difficulties.  He said:

   I understand that [X] is enrolled at [BBC] with a projected starting date of 2006.  His mother [Ms Gingham] discussed with me 4 months ago the pros and cons of private education in a boys only school versus continuation in alternative systems.  I have advised that I believe there are very real benefits to [X] in opting for a private single sex school of which BBC is an excellent example.  The strong nurturing supportive environment of this school should have important benefits to [X] in the coming years.

   Also he can only benefit from the breadth and depth and extra curricular opportunities as available through such a school.  The strong sense of identity and being part of the BBC community will, I believe, have very real benefits in continuing to build [X]’s sense of self esteem.  Very real understanding and support of [X] in regard to his attention disorder can be expected from the school administration and the individual teaching staff whom he will encounter.

9. In the other annexure (apart from his curriculum vitae) a letter of 18 January 2005, addressed “TO WHOM IT MAY CONCERN”, he said:

   …[X] is now achieving quite well at school with the help of this medication though it is my opinion and also that of [Professor S] and [Ms M] that he would further improve significantly in the environment of an all boys school for his secondary education particularly in regard to his speech therapy needs. (emphasis added)

10. Dr L continued:

    [X] was most recently seen by me in December 2004.  His school report shows not a great deal of improvement in the speech therapy area, but the assistance of a teacher aide, allocated to him for some part of the day, has begun to show this being a beneficial step.  It is both my opinion and that of [Professor S] and [Ms M] that the private educational system at [BBC], will no doubt create major benefits and opportunities for [X], and far outweigh those which could be offered by the state education department.

    I understand that [X] has been provisionally accepted at [BBC] and can only stress the importance of the curriculum and programs offered at that school to [X]’s continuing education and development.

11. Similar observations may be made of Dr L’s comments as were made in respect of those of Professor S.  Dr L’s means of knowledge of the educational system at BBC and that of the State education department are not disclosed, and are not in any way shown to be matters within Dr L’s expertise.

12. In his reasons for the dismissal of the mother’s application in respect of the BBC school fees, Wilson FM said:

    40. … I ruled that reports of Dr [L] and Professor [S] were admissible only as to the diagnosis made of [X], namely that he has attention deficit hyperactivity disorder.  Reports of the speech therapist, psychologist and the like are attached to the applicant’s affidavit filed 30 May 2006 but unfortunately such evidence is not admissible on the final hearing of the application.  No effort was made to produce affidavits of the health professionals other than Dr [L] and Professor [S].  Their reports, or letters, suffer from the deficiencies that I identified when ruling that their evidence was largely inadmissible.

1. I am satisfied that the exclusion of the evidence of Professor S and Dr L – essentially that going to their opinions of the benefits for X, of private schooling versus public schooling, opinion on its face involving assumptions about what each system or particular school offered, was a course well open to the learned Magistrate.

2. The mother sought to put before me further affidavits of Professor S and Dr L.  I reject this application for the following reasons:

   ·   It was available at the time of trial; and

   ·   It is of the same nature as that excluded by the Federal Magistrate and thus suffers from the same defects.

Was there a denial of natural justice?

1. This question is ultimately closely involved with the impact on the wife’s case of the exclusion of the evidence of Professor S and Dr L.

2. The Federal Magistrate was well aware of the mother’s case, noting the mother’s assertions that the child did not fit into the general public schooling system due to his special needs; he struggled every day and that the government schooling system was unable to cater for him; a private school such as BBC catered for a large number of boys like her son and had a centre for managing potentially academically gifted students, which suited X’s special needs; and BBC was the only all boys school within a suitable demographic location which provided all the support facilities which were required.

3. The father’s case was summarised by Wilson FM as:

   41. … The respondent does not deny that the child has “special needs” but rather contends that the public schooling system adequately caters for them.

4. As to the impact of his ruling on the mother’s case, the learned Magistrate accepted that the child had “special needs” but added:

   46.…It must also be proved that those special needs significantly affect the cost of maintaining the child.  That can only be proved in the present case if it is accepted that [X]’s needs can only be met in a private school as opposed to in the state school system.

   47.It is in that respect that the evidence is unfortunately very lacking. … In particular there is no evidence from [BBC] itself which supports a finding that that school as opposed to any other provides facilities which properly cater for [X]’s special needs, being his learning difficulties and behavioural difficulties.  The applicant has obtained information which suggests that the [BBC] has a program for gifted students as well as for students with attention deficit disorder.  There is no evidence that [X] fulfils the criteria of being a gifted student.  Nor is there any evidence that the program offered at [BBC] (whatever that program may be, because it was not put into evidence) deals with [X]’s special needs.  There is also no evidence from the teaching staff from [PSS] that [X] cannot be properly educated at that school, nor that the school cannot cope with his special needs.  It has invested additional resources into the education of [X] and has provided him with additional assistance.  His most recent report reflects an improvement in his performance and his schooling.  The absence of evidence, as opposed to assertion from the applicant, that the present school cannot cope with [X]’s needs, and that a private school can, compels the conclusion that a ground for departure is not established. (emphasis added).

   48.Further there is no evidence that a private school education, as opposed to a state school education, was required to meet the child’s special needs. Indeed, at [PSS] where the child is currently attending he has been afforded additional help in the form of a teacher’s aid and learning. There is no evidence that any additional facilities would be available at a private school. I therefore conclude that the ground referred to in s 117(2)(b)(i)(B) is not made out on the evidence produced to the court.

5. The mother’s claim that she was denied natural justice came down to the proposition that, when he excluded the evidence of the medical witnesses about schooling, Wilson FM should have appreciated the effect of that on the mother’s case, advised her that she could seek an adjournment to obtain evidence to fill the gap and (presumably) should have granted that adjournment, without costs to the father.

6. However, this proposition only crystallised during oral submissions.

7. From the proposed Notice of Appeal and the mother’s summary of argument, it appeared that the mother contended that the chain of events leading up to trial were the cause of the unfairness to her.  Though the difficulties with this argument were discussed during the hearing, I briefly record the position here.

8. By orders of 6 November 2006, each party was to file any further affidavits upon which reliance was to be placed by 27 November 2006.  Objections to the admissibility of material were to be communicated by the recipients to the filing party by 29 November 2006 and a response was to be made to any objections received within 4 days.  The mother did not provide Professor S’s affidavit for filing until the day of the hearing.  Dr L’s affidavit was filed the day before.  Before me, the mother suggested that an unsealed copy of Dr L’s evidence had been given to the solicitors for the father some days beforehand but I cannot resolve the issue that exists, for the solicitor says an unsealed copy was received at 11.00am on 4 December 2006.  I note the mother wrote on 27 November 2006 a letter, which however was only faxed on 29 November 2006, saying:

   Please be advised that the following affidavits will be served upon your office in the next few days;

   Dr [L]…Professor [S]…

9. The letter made no reference to contemporaneous or prior service of unsealed copies of affidavits and so sits uncomfortably with the mother’s proposition.  In any event, the sequence of events was such that no obligation arose on the father to deliver objections to the content of affidavits at any earlier time than the day of hearing.

10. The mother argued that she had been trying for weeks leading up to the trial to obtain advices from the father’s solicitors about objection to her proposed material. In a letter of 1 December 2006 to the solicitors for the father, the mother raised questions about objections to her material, however the focus was on form and of course, the final content could not be known until affidavits were filed.

11. The mother also argued that in the letter she had given notice that she would seek an adjournment if her material was not accepted.  This is too broad an interpretation as, in context, the reference was confined to the admission of school reports.

12. If there is significance to the letter, it may be against the mother, demonstrating that she was aware of her “rights” to seek an adjournment.

13. The mother sought to rely on the fact that she received advice from the father’s solicitors on 24 November 2006, that she was the only witness required for cross-examination.  Of course, at that time she was the only deponent.

14. Perhaps the most telling rebuttal of the mother’s arguments, arising from events leading up to trial, is that the transcript discloses that the Federal Magistrate was unimpressed by criticism of lack of form in respect of the mother’s proposed evidence and indeed gave leave to the mother to file and read (subject to rulings on objections to content) the affidavit of Professor S (and, possibly by implication, also the affidavit of Dr L).  Wilson FM also indicated a preparedness to take evidence from the medical witnesses by telephone (at least in cross-examination), but when, after the rulings on admissibility were made, they were not required for cross-examination, the mother did not pursue the prospect of telephone evidence from these witnesses, nor did she seek an adjournment.

15. Even when, during the hearing before me, the argument crystallised, if not transmogrified, to become the proposition that, when the rulings were made about the evidence of the medical witnesses, the Federal Magistrate should have appreciated the gap that was created in the mother’s case and advised her of a right to apply for an adjournment. The mother still described the purpose of such an adjournment as to obtain further evidence from the medical practitioners, as opposed to evidence from any other source.  It is difficult to see how further evidence from those witnesses could have filled the gap in her case.  As Wilson FM observed, there was no evidence from persons within a particular school or schooling system who deposed to the facilities and programs offered by that particular school or that schooling system.  The mother’s argument is premised on her apparently continuing belief that Professor S and Dr L were able to give admissible evidence of those matters.  Nothing to which I was referred supports such a belief.

16. As to applicable principles, the mother made reference to sources which I do not set out as they lead back to the guidelines set out by the Full Court of this Court in Re F(Litigants in Person Guidelines) (2001) 27 Fam LR 517, in respect of cases involving unrepresented litigants.

17. I will not set out those guidelines here, but I have re-read them and they are set out in the mother’s material. I do not consider that they assist the mother’s argument. This was not a case involving some failure of one party, for example to file and serve material on time, or a departure from normal procedure with the potential to disadvantage the unrepresented party, in both of which circumstances a judge might be expected to inform an unrepresented party of the courses open.  This was the arrival at Court of a party with insufficient admissible evidence to prove her case.  I reject the submission that in the circumstances which arose, Wilson FM was obliged to act as the mother suggests.

Did the Federal Magistrate err in failing to find that X had “superior intellect”?

1. At the trial, the mother wished to prove that the child was a suitable participant in a program offered by BBC for “gifted” students, who were, however, underachieving.

2. I rejected, for reasons I gave, some further evidence going to this issue.  However, that did not dispose of the argument.

3. That argument was that either the Federal Magistrate had wrongly excluded an affidavit of Ms M, a speech pathologist or, if he had the affidavit before him, had failed to have regard to it to find that X was a suitable participant as discussed.

4. The mother was equivocal about whether the affidavit was before the Federal Magistrate or not.  Either way, the short answer to the argument is that the affidavit of Ms M, ascribing to X some superior attributes, did not show that he was a “gifted” student suitable for the BBC programme.

5. Wilson FM dealt with the question as earlier seen in paragraph 47 of his reasons, repeated here in relevant part:

   47. … In particular there is no evidence from [BBC] itself which supports a finding that that school as opposed to any other, provides facilities which properly cater for [X]’s special needs, being his learning difficulties and behavioural difficulties.  The applicant has obtained information which suggests that the [BBC] has a program for gifted students as well as for students with attention deficit disorder.  There is no evidence that [X] fulfils the criteria of being a gifted student.  Nor is there any evidence that the program offered at [BBC] (whatever that program may be, because it was not put into evidence) deals with [X]’s special needs. …

6. I see no error in the learned Magistrate’s approach.

Did Wilson FM err in assessing the evidence of an agreement between the parties about private school?

1. The father accepted that X would go to a private school, but asserted that there had been no agreement that that be for the whole of his schooling.

2. The mother contended that the parties had agreed that X attend private schooling for primary and secondary stages.  Apart from her own assertions in this regard, she had relied upon an affidavit by a Ms J.  Ms J said that at the end of 1998, she heard the father ask the mother to enrol the child at BBC to secure his attendance at that school.

3. The mother’s argument was that on Ms J’s evidence, the finding on the issue should have been in her favour.

4. The Federal Magistrate in fact accepted Ms J’s evidence, but found that it was equivocal as to whether the conversation that she had heard between the parties related to attendance at private schooling for the whole of X’s schooling or only for a part, such as secondary schooling.

5. The mother was unable to point to any part of Ms J’s evidence which required a finding to the contrary to that of Wilson FM, her argument in effect being that another Federal Magistrate might have found otherwise.  Even if that was so, this is not an argument sufficient to found a successful appeal.

6. There is no merit in this ground.

Did the learned Magistrate wrongly find that X had expressed a wish to attend PSS?

1. In the father’s affidavit going to this issue, he deposed that the child had expressed such a wish to a police officer.  The mother strived to show that that was incorrect.  This argument lost foundation when, for reasons I gave at the time, I rejected an application by the mother to receive as further evidence, a letter from the Queensland Police Service, of 18 May 2007.

2. In any event, Wilson FM made no such finding. In making the order that the child attend PSS, he relied upon other reasons which are unchallenged.

Having found “special circumstances” the Federal Magistrate should have found the mother’s application made out

1. In this regard, Wilson FM said:

   46. … Here the court is confronted with a case where a child has a diagnosed medical condition that requires additional help, a father who is in receipt of a large income and a mother who is bankrupt. In my view, each of these factors taken either individually or together constitutes special circumstances sufficient to satisfy the primary or threshold consideration in each of the categories mentioned in s 117(2) of the CSA Act. …

2. However, he followed immediately with the discussion set out previously, commencing with the sentence:

   46. … It must also be proved that those special needs significantly affect the cost of maintaining the child.…

3. In my view, the Federal Magistrate’s reasoning was sound and in the light of his finding that the mother’s case failed to establish the connection between the child’s needs and the support she sought, notwithstanding that her case crossed the “threshold”, it was not entitled to ultimate success.

Conclusion

1. It follows from the discussion of the individual arguments that I find no merit in the proposed appeal and the application for leave should be dismissed.

ORDERS

1. That the application for leave to appeal the orders of Wilson FM made 23 April 2007 be dismissed.

I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  14 August 2007