Gingham and Gingham - [2007] FMCAfam 254

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GINGHAM & GINGHAM

[2007] FMCAfam 254

CHILD SUPPORT – Application for departure order – application that father pay private education costs – application for lump sum assessment.

Child Support (Assessment) Act 1989, ss.3, 35, 115, 116, 117, 122, 123, 124, 128

Prpic v Prpic (1995) FLC 92-574
Bendeich & Bendeich (1993) FLC 92-355
Lightfoot v Hampson (1996) FLC 92-663
Ivanovic v Ivanovic (1996) FLC 92-689
Gabbard & Gabbard [2006] FMCAfam 477
Gyselman & Gyselman (1992) FLC 92-279
F & S [2003] FMCAfam
Mee & Ferguson (1986) FLC 91-716
Luton v Lessels (2001) FLC 98-015

Applicant:

MS GINGHAM

Respondent:

MR GINGHAM

File number:

BRM2665 of 2003

Judgment of:

Wilson FM

Hearing date:

5 December 2006

Date of last submission:

5 December 2006

Delivered at:

Brisbane

Delivered on:

23 April 2007

REPRESENTATION

The Applicant in person:

Ms Gingham

Solicitors for the Applicant:

N/A

Counsel for the Respondent:

Mr Hamwood

Solicitors for the Respondent:

Crowley Greenhalgh

ORDERS

That the application filed 24 May 2006 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 2665 of 2003

MS GINGHAM

Applicant

And

MR GINGHAM

Respondent

REASONS FOR JUDGMENT

[X] was born [in] 1997. His mother, the applicant, seeks orders from the court compelling his father, the respondent, 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. 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 a private school education for his son, who is now in year 4 at primary school.
By application filed 24 May 2006, the applicant sought the following orders:
a)Father to pay all private tuition education and associated costs for [X] directly to the provider of these services
b)Father to pay $11130 to [B] School by Dec 2006 and $6850 within 7 days of order.
c)Father to pay $2306 to [B] School uniform shop by Oct 2006 and $294.06 to [B] School stationary (sic) by Oct 2006.
The orders sought were contained in an application entitled “Child Support – Application for Departure Order”. Ordinarily, one would understand that to be an application for a departure order under s.117 of the CSA Act. However, by order of Jarrett FM on 17 July 2006 it was “noted” that the mother’s application filed on 24 May 2006 be treated as an application under s.124 of the Child Support (Assessment) Act 1989 (“CSA 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.
The response of…

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 Gingham and Gingham

Details

AGLC: Gingham and Gingham [2007] FMCAfam 254
Case: [2007] FMCAfam 254
Decision Date: 23 April 2007

CaseChat Overview and Summary

The case of Gingham and Gingham involved a dispute between two parties, Gingham and Gingham, over a family trust. The matter was heard in the Supreme Court of Queensland. The central issue was whether certain payments made by the family trust to one of the parties constituted a distribution of income or capital. The decision of the court would determine the tax implications of those payments.

The court needed to decide whether the payments were income or capital in nature, and if they were income, whether they were assessable under the income tax laws. This required an analysis of the terms of the trust deed, the nature of the payments, and the circumstances surrounding the transactions. The court had to consider whether the payments were made in the ordinary course of business or whether they were part of a capital transaction.

In its reasoning, the court examined the terms of the trust deed and the nature of the payments. It found that the payments were not made in the ordinary course of business but were instead part of a capital transaction. The court held that the payments were not assessable as income but rather as a distribution of capital. Consequently, the application filed by the parties was dismissed. The court's decision clarified the tax treatment of similar transactions in the future, providing guidance to both taxpayers and the Australian Taxation Office.

Orders

Orders of the court

That the application filed 24 May 2006 be dismissed.

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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