Hampson & Bailey - [2013] FCCA 1004

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAMPSON & BAILEY

[2013] FCCA 1004

Catchwords:
CHILD SUPPORT – Application to set aside binding Child Support Agreement – departure order – father has high income – mother has substantial assets and resources – adult child maintenance.

Legislation:
Family Law Act 1975
Child Support (Assessment) Act 1989

Cases cited:
Balzano & Balzano [2010] FamCAFC 11
Gavin v Garden [2011] FamCA 190
Simpson & Hamlin (1984) FLC 91-576
Sandrik v Sandrik (1991) FLC 92-260
Whitford & Whitford (1979) FLC 90-612
Leonard v Leonard [2010] FMCAfam 390
Cosgrove v Cosgrove (1996) FLC 92-700

Applicant:

MS HAMPSON

Respondent:

MR BAILEY

File Number:

MLC 12045 of 2007

Judgment of:

Judge McGuire

Hearing dates:

26 & 27 November 2012, 15 & 16 January 2013, 12 March 2013 and 24 April 2013

Date of Last Submission:

24 April 2013

Delivered at:

Melbourne

Delivered on:

2 August 2013

REPRESENTATION

Counsel for the Applicant:

Mr Walmsley Senior Counsel with Ms Devine of Counsel

Solicitors for the Applicant:

Nicholes Family Lawyers

Counsel for the Respondent:

Mr Glick of Senior Counsel

Solicitors for the Respondent:

Lander & Rogers

ORDERS

The binding child support agreement between the parties dated 1 September 2009 be set aside as of the date of these Orders.
The father pay adult child maintenance for X born (omitted) 1992 in a quantum of $375 per week such to be payable to the mother and payable from 1 January 2012 and that any arrears now accrued under this Order be paid to the mother within 28 days of the date of these Orders and that such payments continue until 31 December 2013 or the completion of X's Degree whichever is the later.
There be a Departure Order for any eligibility for child support assessment for the child Y born (omitted) 1996 whereby the father pay to the mother:
(a)Private tuition costs and boarding fees for Y at (omitted) Grammar School as struck and when due and owing as provided to him by the mother such to be payable from 1 January 2013 and the father to reimburse the mother for any payments she has made in respect of tuition and board for Y within 28 days of the mother providing documentary evidence of such payments;
(b)The costs of uniforms, camps, excursions and/or tutoring to a maximum of $1000 per year by way of reimbursement to the mother within 14 days of her providing evidence of payment by her;
(c)All costs of private health insurance for Y at the Family’s current level of cover;
(d)There be nil periodic child support for Y;
(e)Any payments of periodic child support made by the father relevant to the period from 1 January 2013 and pursuant to the Binding Child Support Agreement of September 2009 be set-off against the father’s obligation to pay tuition costs and boarding fees pursuant to paragraph 3(a) herein;
(f)The father’s obligations in respect of Y continue until the later of the following events:
(i)Y attains the age of 18 years;
(ii)Y completes her…

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 Hampson & Bailey

Details

AGLC: HAMPSON & BAILEY [2013] FCCA 1004
Case: [2013] FCCA 1004
Decision Date: 2 August 2013

CaseChat Overview and Summary

In Hampson & Bailey, heard before Judge McGuire, the mother sought to set aside a binding child support agreement and obtain orders for adult child maintenance and departure from the standard child support assessment for two of the parties' children. The father sought dismissal of the mother's application for adult child maintenance for another child.

The court was required to determine whether the binding child support agreement should be set aside, the appropriate quantum of adult child maintenance for one child, and whether departure orders were warranted for the other two children, considering their educational needs and the existing child support arrangements. The court also had to consider the mother's claim for adult child maintenance for a fourth child.

Judge McGuire set aside the binding child support agreement. The father was ordered to pay adult child maintenance for one child at a rate of $375 per week until the completion of their degree or 31 December 2013, whichever was later, with provisions for arrears. Departure orders were made for the other two children, requiring the father to pay private tuition, boarding fees, uniforms, camps, excursions, tutoring up to $1000 annually, and private health insurance costs. These obligations were to continue until the children turned 18 or completed secondary education, whichever was later. Periodic child support for one child was set at $375 per week, varied by CPI, while for the other, periodic child support was nil. The mother's application for adult child maintenance for a fourth child was dismissed.

Orders

Orders of the court

The binding child support agreement between the parties dated 1 September 2009 be set aside as of the date of these Orders.

The father pay adult child maintenance for X born (omitted) 1992 in a quantum of $375 per week such to be payable to the mother and payable from 1 January 2012 and that any arrears now accrued under this Order be paid to the mother within 28 days of the date of these Orders and that such payments continue until 31 December 2013 or the completion of X's Degree whichever is the later.

There be a Departure Order for any eligibility for child support assessment for the child Y born (omitted) 1996 whereby the father pay to the mother:

(a) Private tuition costs and boarding fees for Y at (omitted) Grammar School as struck and when due and owing as provided to him by the mother such to be payable from 1 January 2013 and the father to reimburse the mother for any payments she has made in respect of tuition and board for Y within 28 days of the mother providing documentary evidence of such payments;

(b) The costs of uniforms, camps, excursions and/or tutoring to a maximum of $1000 per year by way of reimbursement to the mother within 14 days of her providing evidence of payment by her;

(d) There be nil periodic child support for Y;

(e) Any payments of periodic child support made by the father relevant to the period from 1 January 2013 and pursuant to the Binding Child Support Agreement of September 2009 be set-off against the father’s obligation to pay tuition costs and boarding fees pursuant to paragraph 3(a) herein;

(f) The father’s obligations in respect of Y continue until the later of the following events:

(i) Y attains the age of 18 years;

(ii) Y completes her secondary education.

There be a Departure Order from any eligibility for child support assessment for the child Z born (omitted) 1999 whereby the father pay:

(a) Private tuition fees at (omitted) School as struck and when due and owing and as provided to him by the mother;

(b) The costs of uniforms, camps, excursions and/or tutoring to a maximum of $1000 per year by way of reimbursement to the mother within 14 days of her providing evidence of payment by her;

(c) Periodic child support in a sum of $375 per week varied by the changes in the consumer price index for Melbourne as at the 1 July of each year such to be payable from the date of these Orders;

(d) All costs of private health insurance for Z at the Family’s current level of cover.

(e) The father’s obligations in respect of Z continue until the later of the following events:

(i) Z attains the age of 18 years;

(ii) Z completes her secondary education.

The mother’s application for adult child maintenance for W born (omitted) 1993 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.