Grey and Grey - [2012] FamCA 389

FAMILY COURT OF AUSTRALIA

GREY & GREY

[2012] FamCA 389

FAMILY LAW - CHILD SUPPORT – Child support departure application – Jurisdiction established under s 116(1)(b) Child Support Assessment Act 1989 (Cth) – Where the father has moved to South Africa – Where move to South Africa by father does not constitute a terminating event under s 12 of the Child Support Assessment Act 1989 (Cth) – Where two of the children attended private school before the parties separated – Where father continued to pay school fees after parties separated – Grounds for departure established for two children – Where mother does not presently have income, property or financial resource to support the children – Where mother has full responsibility for the children – Where the mother does not have the capacity for paid employment – Where father did not provide full and frank disclosure of his financial circumstances – Where inference available that the father has sufficient income and assets to pay private school fees and child support as sought by the mother – Grounds for departure for third child established – Where in the present circumstances of the case it is just and equitable for a Departure Order to be made – Departure Order made.

Child Support Assessment Act 1989 (Cth)
Evidence Act 1995 (Cth)

Child Support (Registration & Collection) Act 1988 (Cth)

Black and Kellner (1992) FLC 92-287
DJM v JLM (1998) FLC 92-816
Dwyer v McGuire (1993) FLC 92-420
Gyselman (1992) FLC 92-279
Lightfoot & Hampson (1996) FLC 92-663
Mee & Ferguson (1986) FLC 91-716
Wylde & Ballard (1997) FLC 92-771
Weir and Weir (1993) FLC 92-338

APPLICANT:

Ms Grey

RESPONDENT:

Mr Grey

FILE NUMBER:

SYC

1837

2010

DATE DELIVERED:

28 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

1 December 2011

REPRESENTATION

ADVOCATE FOR THE APPLICANT:

Ms Grey in person

SOLICITOR FOR THE RESPONDENT:

No appearance for or on behalf of the respondent

Orders

That pursuant to section 117 of the Child Support Assessment Act 1989 there be a departure from the administrative assessment of child support payable by Mr Grey to Ms Grey for the children, K born … May 2000, D born … May 2003 and Y born … February 2006 as follows:
(a)for the period commencing 22 March 2011 until 28 June 2011, in addition to the periodic payments payable pursuant to any administrative assessment of child support, school fees levied by M School in relation to the two elder children;
(b)for the period commencing 28 June 2011 to the date of these orders, $1,623.25 per month being $405.82 per month per child and the school fees levied by M School in relation to the two elder children;
(c)from the date of these orders until 31 December 2014 in the amount of $1,570.66 per month per child and in the event that during this period either or both of the elder children ceases to attend M School the monthly amount payable by the father shall…

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 Grey and Grey

Details

AGLC: Grey and Grey [2012] FamCA 389
Case: [2012] FamCA 389
Decision Date

CaseChat Overview and Summary

This case involved an application by Ms Grey to the Family Court of Australia for a departure from the administrative assessment of child support payable by her former husband, Mr Grey. The parties have three children who reside with the mother in Australia. The father had moved to South Africa without notice to the mother or children. The mother sought orders for child support, including private school fees for the two elder children.

The primary legal issues before the Court were whether it had jurisdiction to hear the child support departure application, whether the father's relocation to South Africa constituted a terminating event for child support assessments, and if grounds for departure from the administrative assessment were established. The Court was required to determine if it was just and equitable to make a departure order, considering the financial circumstances of both parents and the children's needs, particularly their continued attendance at a private school.

The Court found that it had jurisdiction under s 116(1)(b) of the Child Support Assessment Act 1989 (Cth) due to the ongoing property settlement proceedings. It also determined that the father's move to South Africa was not a terminating event under s 12 of the Act, as South Africa is a reciprocating jurisdiction. The Court established grounds for departure under s 117(2)(b)(ii) of the Act, finding that the elder children's attendance at private school was consistent with the parents' prior expectations. The father had previously paid school fees, supporting the inference that he agreed to this arrangement. The Court also considered the father's lack of full financial disclosure and inferred he had sufficient means to contribute to the school fees and child support.

Consequently, the Court made a Departure Order. This order mandated the father to pay specified amounts for child support and private school fees for the two elder children, with adjustments to be made if their attendance at the private school ceased. The order also included a stay of six weeks for the commencement of the school fee component, during which the father had liberty to apply.

Orders