Jacome & Yanda - [2022] FedCFamC2F 1791

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jacome & Yanda [2022] FedCFamC2F 1791

File number(s): BRC 7039 of 2022

Judgment of: JUDGE TAGLIERI

Date of judgment: 23 December 2022

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of Judicial Registrar’s decision – spousal maintenance and child support – where husband seeks discharge of an interim order that he pay the children’s private school fees and restraint regarding changing the children’s school enrolment – where the husband seeks discharge of an interim order that he pay weekly spousal maintenance to the wife – application dismissed

Legislation:
Child Support (Assessment) Act 1989 (Cth) div 4 part 6A, div 4 part 7, div 5 part 7, ss 117(2)(b)(ii), 117(4), 117(6), 117(7), 117(7A), 117(8), 124, 125

Federal Circuit and Family Court (Family Law) Rules 2021 (Cth), sch 4, r 4.08

Cases cited:
Fleming & Burnett [1994] Fam CA 175

Gyselman and Gyselman [1991] FamCA 93

Ivanovic & Ivanovic [1996] FamCA 41

Keymer & Keymer [2020] FamCAFC 70

Lightfoot and Hampson [1996] FamCA 8

Savery and Savery [1990] FamCA 30

MS and PS (2006) FLC 93-268

Simiko & Kellidis (No 2) [2022] FedCFamC2F 982

Division: Division 2 Family Law

Number of paragraphs: 75

Date of hearing: 8 December 2022

Place: Hobart

Counsel for the Applicant: Mr Linklater-Steele

Solicitor for the Applicant: Rostron Carlyle Rojas Lawyers

Solicitor for the Applicant: Mr Cooper, Cooper Family Law
ORDERS

BRC 7039 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JACOME

Applicant

AND:
MR YANDA

Respondent

order made by:

JUDGE TAGLIERI

DATE OF ORDER:

23 December 2022

THE COURT ORDERS THAT:
1.The Application for Review filed 25 October 2022 is dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jacome & Yanda has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri

The applicant in this Application for Review filed 25 October 2022 (“the review application”) is Mr Yanda (“the Husband”), who is the respondent in the substantive proceedings. The respondent to the review application is Ms Jacome (“the Wife”), who is the applicant in the substantive proceedings.
The review application seeks review of Orders 6, 34, 37, 38, 39 and 40 made by a Senior Judicial Registrar on 4 October 2022 (“the interim orders”).
At the review hearing on…

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 Jacome & Yanda

Details

AGLC: Jacome & Yanda [2022] FedCFamC2F 1791
Case: [2022] FedCFamC2F 1791
Decision Date

CaseChat Overview and Summary

The parties in this case are Ms Jacome (the Applicant) and Mr Yanda (the Respondent). The dispute concerns a review of interim orders made by a Senior Judicial Registrar in relation to spousal maintenance and child support. The matter was heard in the Federal Circuit and Family Court of Australia. The Husband sought to discharge certain interim orders, including those requiring him to pay the children's private school fees, spousal maintenance, and child support. The Wife opposed the Husband's application and sought that the interim orders remain undisturbed.

The legal issues before the court were whether the Husband's application for review should be granted and if the interim orders should be discharged. The court considered the relevant statutory provisions, including the Child Support (Assessment) Act 1989 and the Federal Circuit and Family Court (Family Law) Rules 2021. The court also considered various authorities and principles relating to spousal maintenance and child support.

In reaching its decision, the court considered the parties' respective incomes, expenses, and capacity to pay. The court found that the Wife had demonstrated a need for periodic spousal maintenance, while the Husband had the capacity to pay the children's private school fees. The court also considered the statutory provisions and authorities relating to non-periodic child support orders. Based on the evidence and legal principles, the court decided that it was just and equitable for the Husband to pay the children's private school fees as non-periodic child support, and that the value of these fees should not be credited against the administrative assessment of child support.

In summary, the court dismissed the Husband's application for review and determined that the interim orders should remain in place. The court found that the Wife had a need for spousal maintenance, and that the Husband had the capacity to pay the children's private school fees. The court also determined that the circumstances of the case justified making a non-periodic child support order for the payment of school fees, without crediting the value of those fees against the administrative assessment.

Orders