MABRY & MABRY - [2005] FMCAfam 656

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MABRY & MABRY

[2005] FMCAfam 656

CHILD SUPPORT – Departure application – earning capacity – whether children being educated in manner expected – private school fees.

Child Support (Assessment) Act 1989
Family Law Act 1975, s.79

Gyselman (1992) FLC 92-279
DJM v JLM (1998) FLC 92-816
Lightfoot & Hampson (1996) FLC 92-663
Wylde & Ballard (1997) FLC 92-71
Mee & Ferguson (1986) FLC 91-716
Dwyer v Maguire (1993) FLC 92-420

Applicant:

MR MABRY

Respondent:

MS MABRY

File Number:

CAM921 of 2003

Judgment of:

Ryan FM

Hearing date:

6 September 2005

Delivered at:

Parramatta

Delivered on:

13 December 2005

REPRESENTATION

Applicant:

In person

Respondent:

In person

ORDERS

That for the period 1 July 2003 until 16 February 2004 the applicant Mr Mabry’s child support income is set at $30,820.28.
For the period 17 February 2004 until 30 June 2005 the applicant

Mr Mabry’s child support income is set at $44,472.44.
For the period 1 July 2005 until 30 June 2007 the applicant Mr Mabry’s child support income shall be calculated by adding to his taxable income 25% allowed deductions relating to expenses claimed in relation to [AQG] (including those repaid on his parents Westpac loan).
In addition to the child support payable pursuant to Order 3 commencing 1 January 2006 the applicant shall pay one half of the children’s school fees, camp fees, building fund and school excursion costs for their attendance at [M] College or any other private fee paying school (provided the later does not involve overall fees greater than those charged by [M] College).
That the Registrar of the Child Support Agency give effect to these departures from administrative assessment.
All outstanding applications are dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

CAM921 of 2003

MR MABRY

Applicant

And

MS MABRY

Respondent

REASONS FOR JUDGMENT

The application

This is an application by Mr Mabry for a departure order from an administrative assessment of child support, which was set by departure. After his reviews and objections failed Mr Mabry filed a series of departure applications in this court on 27 April 2005, 23 May 2005 and 5 July 2005. The difference between the first two and final application is that the earlier applications included applications for s.140 stays. By way of final orders all application sought the following orders: “For my child support assessment to be based on my taxable income for 03/04 to 06/07.” At the start of this hearing Mr Mabry provided a minute of order[1] which sets out the orders and declarations sought. These are set out below:
·Mr Mabry’s assessment income be set at: $20,680 for the 2002/2003 financial year, $18,917 for 2003/2004 and $37,641 for 2004/2005.
·Mr Mabry’s assessable income be set at: $55,000 for the 2005/2006 financial year, $57,000 for 2006/2007 and then revert to the administrative formula as…

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.

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Details

Case: [2005] FMCAfam 656
Decision Date: 13 December 2005

CaseChat Overview and Summary

The case of Mabry & Mabry involved Mr. Mabry, the applicant, contesting the determination of his child support income by the Child Support Agency. The Family Court of Australia was tasked with reviewing the Child Support Agency's assessment and determining the appropriate amount of child support income for Mr. Mabry. The dispute centered around the accuracy of the assessment period, the calculation of income, and additional educational expenses for their children.

The court had to decide several legal issues, including the proper assessment of Mr. Mabry's income for the specified periods, the applicability of certain deductions in his income assessment, and the necessity of covering educational expenses beyond the standard child support obligations. The court examined the evidence provided by both parties and the guidelines set forth in the relevant legislation and administrative practices.

In its reasoning, the court found that the Child Support Agency's assessment of Mr. Mabry's income for specific periods was incorrect and set different amounts for the periods in question. The court also determined that certain deductions claimed by Mr. Mabry should be allowed, affecting the calculation of his child support income for subsequent years. Additionally, the court ruled that Mr. Mabry should contribute to half of the children's educational expenses, beyond the standard child support, as the children were to attend a particular private school. The Registrar of the Child Support Agency was directed to implement these changes.

The court dismissed all other outstanding applications made by the parties. The final orders established specific income amounts for certain periods, outlined the method for calculating Mr. Mabry's income for future periods, and mandated his contribution to the children's educational costs.

Orders

Orders of the court

That for the period 1 July 2003 until 16 February 2004 the applicant Mr Mabry’s child support income is set at $30,820.28.

For the period 17 February 2004 until 30 June 2005 the applicant

Mr Mabry’s child support income is set at $44,472.44.

For the period 1 July 2005 until 30 June 2007 the applicant Mr Mabry’s child support income shall be calculated by adding to his taxable income 25% allowed deductions relating to expenses claimed in relation to [AQG] (including those repaid on his parents Westpac loan).

In addition to the child support payable pursuant to Order 3 commencing 1 January 2006 the applicant shall pay one half of the children’s school fees, camp fees, building fund and school excursion costs for their attendance at [M] College or any other private fee paying school (provided the later does not involve overall fees greater than those charged by [M] College).

That the Registrar of the Child Support Agency give effect to these departures from administrative assessment.

All outstanding applications are 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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