Oxenham & Oxenham - [2008] FamCAFC 199

FAMILY COURT OF AUSTRALIA

OXENHAM & OXENHAM

[2008] FamCAFC 199

FAMILY LAW - APPEAL – Leave to appeal a decision of a Federal Magistrate – CHILD SUPPORT - Where the Federal Magistrate dismissed an application for an adjournment – Where the Federal Magistrate dismissed a departure application – No error of principle or substantial injustice found – Application for leave dismissed.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bassingthwaite & Leane (1993) FLC 92-410
Gyselman & Gyselman (1992) FLC 92‑279
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641
In the Marriage of Gilmour (1995) FLC 92–591
In the Marriage of Wild & Ballard (1997) FLC 92-771
In the Marriage of Best(1993) FLC 92–418
Mathieson & Hamilton (2006) FLC 98-032
OP v HM (2002) FLC 98-017
PD & CD & Child Support Registrar (2005) FLC 98-027
RAN & CAR [2006] FamCA 73
Rutherford & Rutherford (1991) FLC 92-255

APPELLANT:

MR OXENHAM

RESPONDENT:

MS OXENHAM

FILE NUMBER:

SYM

7343

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

20 October 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

20 October 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 February 2008

LOWER COURT MNC:

[2008] FMCAfam 320

REPRESENTATION

COUNSEL FOR THE APPELLANT:

N/A

SOLICITOR FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

On the matter of Oxenham & Oxenham, SA 16 of 2008, from SYM 7343 of 2006, I order:

That the husband's application for leave to appeal against the orders of Walters FM made on 26 February 2008 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal number: SA 16 of 2008
File number: SYM 7343 of 2006

MR OXENHAM

Appellant

And

MS OXENHAM

Respondent

REASONS FOR JUDGMENT

This is an application for leave to appeal against orders made by Walters FM on 26 February 2008, pursuant to the provisions of s 102A of the Child Support (Assessment) Act 1989 ("the Act").
Pursuant to s 93AAA(3) of the Family Law Act 1975, I have been delegated by the Chief Justice to sit to hear this appeal.
While the appellant husband has not actually sought leave to appeal but has only filed an Amended Notice of Appeal, because both he and the respondent wife have represented themselves before me, I have treated this matter as an application for leave.
Pursuant to s 102A of the Act, in order to establish the substantive grounds the appellant must seek leave, which in accordance with the authorities may be granted upon demonstrating either or both of an error of principle or a substantial injustice (See Rutherford & Rutherford (1991) FLC 92-255; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641). In that regard, I note the decision of the Full Court of this Court in Bassingthwaite & Leane (1993) FLC 92-410 which held (at p 80,198) that “these principles may be too restrictive for appeals against substantive orders made under the child support legislation” (as opposed to interlocutory orders or orders of practice or procedure).I also note the subsequent endorsement of this decision and the reframing of the test as expounded in Hendy v Deputy Child Support Registrar (supra) where the Full Court referred to the development of the relevant case law and then held:
[42] Finally in In the Marriage of Wild & Ballard (1997) 22 Fam LR 291; (1997) FLC 92-771 the Full Court said at Fam LR 297; FLC 84,488:
“As already indicated s 102 of the Child Support (Assessment) Act provides that an appeal from a single judge of the court exercising jurisdiction under that Act lies only with the leave of the Full Court. In In the Marriage of Gilmour(1994) 18 Fam LR 646 ; (1995) FLC 92–591 the Full Court (Ellis, Finn and Maxwell JJ) endorsed suggestions made in both Bassingthwaite v Leane(1993) 16 Fam LR 918 ; FLC 92–410 and In the Marriage of Best(1993) 16 Fam LR 937 ; FLC 92–418 that leave applications under this legislation ought be approached less restrictively than were this an application from an interlocutory order. The court said that if a party's substantive rights have been significantly affected by an error at first instance, then it would be appropriate to grant leave to appeal under the section. It is appropriate then to examine whether the appellant has had his substantive rights significantly affected by any error of principle made by the trial judge.”
[43] We shall approach our task of determining whether to grant leave bearing in mind that we should not be too restrictive if we perceive there has been any error of principle which has affected the applicant’s substantive rights.
The above approach has subsequently been cited and followed by differently constituted Full Courts (See eg RAN & CAR [2006] FamCA 73; PD & CD & Child Support Registrar (2005) FLC 98-027; OP v HM (2002) FLC 98-017) and I apply it here.
The substantive matter relates to the administrative assessment of child support for the parties’ two children who were, at the time of the assessment, aged 13 and 7, for the child support period from 1 July 2004 to 30 June 2005.
On 24 September 2003, an assessment was made which required the husband to pay the sum of $260 per annum by way of child support. The wife applied to the Agency for a change to the assessment on the basis that the assessment was not fair, being insufficient, due to the income, earning capacity, property and financial resources of the parties (reason eight). The husband cross-applied on various grounds including those related to the costs of maintaining the children due to the costs of his contact with the children (reason one) and their alleged special needs (reason two), the costs of the husband’s self-support (reason seven), and that the assessment not being fair, being excessive, due to the income, earning capacity, property and financial resources of the parties (reason eight). The application and cross-application were determined by a senior case officer who found reason 8 of the wife’s application and reason one of the husband’s cross application established and increased the child support payable for the child support year of 1 July 2004 to 30 June 2005 to $12,267.
The husband objected to that decision which was considered by an objections officer of the Agency who agreed with the determination of the senior case officer and declined to change it.
The reasons for decision of both the senior case officer and the objections officer were evidence before his Honour and are now before me on the hearing of this application for leave to appeal.

Trial before Walters FM

The husband, being dissatisfied with the determination of the objections officer, applied to the Federal Magistrates Court pursuant to the Act. His Honour initially called the matter on for trial shortly after the commencement of his morning sitting, at which time both parties represented themselves.
His Honour stood the matter down to give each of the parties the opportunity to seek advice from the duty solicitor, to see a Registrar and, if possible, to arrange an urgent conciliation conference with a view to resolving or at least narrowing the issues. The matter was not resolved and the parties returned to court before his Honour, both still unrepresented but having received some legal advice.
His Honour proceeded to hear the husband's application for an adjournment. There was extensive discussion between the parties and his Honour; and in addition, of his own motion, his Honour spoke by telephone with a member of a legal service who had recently advised the husband. His Honour then dismissed the husband's application for an adjournment.
Following the dismissal of the application for the adjournment, the matter proceeded on the substantive issue of the challenge to the Agency's assessment, as further provided by the determinations referred to above.
At the conclusion of the hearing his Honour delivered extempore reasons for judgment. In those reasons his Honour first considered the husband's application for an adjournment of the child support proceedings. He referred to the husband's submitted reasons for seeking an adjournment and to some of the key authorities on what he referred to as "the injustice principle" and "the court resources principle." His Honour concluded that, on balance, an application of these principles to the facts of the case led, in his view, to a finding that the adjournment application should be dismissed.
His Honour then proceeded to consider the substantive application, referring to and adopting the two determinations of the Child Support Agency, referred to above. His Honour concluded that the husband had failed to persuade him that these decisions were "either incorrect or unsupportable in any way" and dismissed the husband's application.

Grounds of appeal and orders sought

In the husband’s Amended Notice of Appeal he set out his grounds of appeal as follows:
1.[Federal] Magistrate Walters did not take into consideration the health of the Applicant thus, the Compensation guide of ‘The Guide’ 2.6.14 – CSA Australia (see Annex 1) and parts of Commonwealth Consolidated Acts (see Annex 1A) [the Act] were not used in making the final decision.
2.The cost of contact with the children is the most important part of this matter and it seems this area was not considered (the costs of flights, telephone contact, other transport – bus train etc)
3.The Lump sum Compensation [sic] payment is too subsidise and support the Applicant, who lost employment due to suffering from Epilepsy, and cannot regain employment due to the continual problem with Epilepsy dispite [sic] undergoing an operation in 2002. (see attach)
I note that the husband did not include a challenge to his Honour’s refusal of the adjournment application in the grounds quoted above. However, it was clear from the Amended Notice of Appeal that he was challenging that refusal. The husband also confirmed, during the hearing this application, that he was pressing that challenge. I have proceeded accordingly.
In his Amended Notice of Appeal the husband set out the orders he sought as follows:
The CSA decision and [Federal] Magistrate Walters [sic] decision to be reversed allowing for the rules of “the Guide” 2.6.14 – CSA Australia and the Commonwealth Consolidated Acts to be applied where a payment (compensation) is for the future living requirements of the Applicant.
The Benefit [sic] to the children will be that a large sum of the payment will be used for contact between the children and their natural Father (the Applicant).

The Adjournment Application

I now turn to the issues surrounding the refusal by his Honour of the application for an adjournment.
In his reasons for judgment his Honour noted that the matter had been set down for trial by order made on 30 October 2007, the parties having at that time also been ordered to file further affidavit material.
There was liberty reserved to list the matter for telephone mention, which apparently was not sought.
The husband sought an adjournment "because he wishes to have the opportunity to obtain legal advice". His Honour found that the husband had consulted a person at a legal service as recently as 13 February 2008, that is 13 days prior to the hearing before his Honour, and had received advice in writing, and that he had also consulted that service "last year (or perhaps earlier as well) and that he received advice at that time".
At paragraph 6 of his reasons for judgment his Honour held as follows.
[Mr Oxenham] received advice on 13 February 2008. It appears that that advice was in writing. Nothing that I have heard from the relevant officers of the service could fairly support the need for an adjournment and nothing that has been said gives me any confidence that the matter will be any better prepared in some months time than it is at present.
At paragraph 9 his Honour held as follows:
I understand [Mr Oxenham's] argument to be to the effect that an injustice may well result to him if I proceed to hear and determine the case today. On the other hand, the wife argues that the husband has had more than enough time to get his tackle in order (to use a colloquialism), and that there is no guarantee that the matter will be better prepared on the next occasion. She wishes to matter [sic] to be dealt with and brought to a completion as soon as possible.
His Honour further noted that the amount involved in the dispute was approximately $12,000, which, in the circumstances, while not deprecating the importance of the matter, was relatively small.
At paragraph 15 his Honour held:
The husband had an obligation, as all litigants do, to get his case ready and to be able to present it effectively at the time of trial. As I said before, I have no confidence that an adjournment will find the husband in any better position - months down the track - to present his case. In my opinion, the refusal of an adjournment does not result in more serious injustice to the husband than the allowance of an adjournment would cause the wife (who has lived with these proceedings for a very long time and is ready and willing to proceed with the hearing today). Accordingly, and when I balance the effect of the two relevant factors, I conclude that the application for an adjournment should be dismissed.
In my view, in his consideration of the husband's application for an adjournment, his Honour considered all relevant factors, took into account the entirety of the relevant material and determined that a greater injustice would be done to the wife by adjourning the matter than to the husband in giving him an opportunity to further prepare his case which his Honour found, within his discretion, to be unlikely to advance the matter.
In those circumstances, I find that the exercise of his Honour's discretion in refusing an adjournment has not miscarried and the husband will not be granted leave to appeal against his Honour’s refusal to grant an adjournment.

The Substantive Application

I now turn to the consideration of the substantive application. At paragraph 16 and 17 of his reasons for judgment his Honour held as follows:
16.Before the court is the father's child support application filed in the Local Court at Wyong on 25 August 2006. The grounds for the departure application are set out on the second page of that application. The particular orders sought are also set out on the second page. It is clear that the application focuses on the period from 1 July 2004 to 30 June 2006. Attached to the application are a number of documents, but of significance are:
a) Senior Case Officer … notice of decision dated 19 January 2006; and
b) Objections Officer … notice of decision on objection dated 28 July 2006.
17.I have read both of those decisions carefully and in the context of all the other material presented by [Mr Oxenham] (which I have also read). The long and the short of the matter is that there is simply no evidence before me that could lead me to conclude that the conclusions reached in those two documents are either incorrect or unsupportable in any way. I agree with and adopt the reasoning set out (and the conclusions reached) in the two decisions. [footnotes omitted]
At paragraph 18 of his reasons, his Honour discussed a previous decision of his in Mathieson v Hamilton (2006) FLC 98-032 in which he summarised the relevant law. His Honour in that decision referred to the decision of the Full Court in Gyselman (1992) FLC 92‑279 at 79‑064/5 and held at paragraph 62:
It is clear from the decision in Gyselman that the court is not obliged to "slavishly go through" each of the considerations in section 117(4) nor is it necessary to adopt such an approach in relation to the matters referred to in section 117(5). In essence, the court is obliged to adopt "a practical and flexible approach" to the consideration of the matters referred to in sections 117(4) and (5).
His Honour then proceeded to dismiss the child support departure application holding, at paragraphs 19 to 22 inclusive, as follows:
19.The thrust of the husband's case is almost impossible to understand. Nevertheless, and as I have said, I have read the material that he has provided, and the fact of the matter is that no “special circumstances” have been revealed.
20.The evidence that was presented before the court today, and the arguments that the husband raised before me (which I have done my best to understand), do not change the situation. I accept that both parties' financial positions have altered – the husband's for the worse (to some extent), and the wife's for the better (to some extent). But nothing that I have read or heard affects the validity or soundness of the decisions under attack, and I am unable to find that any “special circumstance” exists. Accordingly, I propose to dismiss the child support application.
21.As I have explained to the husband, my determination in this case says nothing about his right to apply – as he has indicated that he is minded to do – for relevant orders under sections 111 or 112 of the Child Support (Assessment) Act 1989 in relation to what may perhaps be errors on the part of the Child Support Registrar from earlier times.
22.The child support departure application will be dismissed.
It will be clear from the reference to paragraph 17 of his Honour's judgment above that his essential decision was to agree with and adopt the reasoning set out by the senior case officer and the objections officer, referred to above. Accordingly, it is necessary to refer to those findings, they being effectively incorporated into his Honour's reasons for judgment.
The husband's application for a determination was received by the Agency on 27 October 2005. The senior case officer conferred on the matter in December 2005 and January 2006 and delivered his decision on 19 January 2006.
The original application for a determination was made by the wife, who is the respondent to this appeal, on the ground that "the child support assessment does not take into account the income, earning capacity, property and financial resources of the applicant or the respondent", being “Reason 8” of the Child Support Agency’s Guide.
The senior case officer first considered that ground. He analysed matters, to which I will refer below, and found:
I find the child support assessments are unfair, in that they do not reflect [Mr Oxenham's] capacity to pay child support and contribute towards the costs of maintaining the parties' two children.
As a result, and again on facts to which I will refer below, the senior case officer found this application to be established.
The determination then turned to the issues raised by the husband. The first of those was the assertion that "the costs of maintaining the children were significantly affected because it costs more than 5 per cent of his child support income amount to have contact with them". The senior case officer correctly noted that the husband, in order to establish this ground, "must firstly demonstrate that the costs of contact incurred by him exceed 5 per cent of his child support income amount."
The senior case officer found that the then current child support income amount was $14,951, of which 5 per cent amounted to $747. He held:
If this threshold is reached, I must also then be satisfied that the costs of maintaining the children are significantly affected because of these contact costs.

The senior case officer then proceeded to analyse the financial matters concerning this issue and held:
[Mr Oxenham] says that he travels to Melbourne each month to have contact with the children. He used public transport for all travel, as he does not drive. He advises that public transport costs for each visit amount to around $140, but this does not include airfares. He has provided copies of invoices for air tickets purchased. These range in cost in 2005 from $202 to $228 return. Based on the invoices provided by [Mr Oxenham], the total costs for airfares in 2005 were $1273 and in 2004 they were $792. The total costs incurred then in 2005 were around $2113 and the total costs in 2004 were $1492.
During the hearing of this application for leave the husband conceded that those figures were correct. There is no ground of appeal to challenge the figures themselves.
To the extent that the husband has sought to adduce further and fresh evidence on the hearing of this application, that evidence deals with current day costs, not costs at that time, and, as this matter only deals with the 2004/2005 child support year, they are irrelevant for present consideration, particularly given that the determination held that, following the 30 June 2005 year, assessment was to be in accordance with the Act. Accordingly, I dismiss the husband’s application to adduce further and fresh evidence.
Ultimately, the senior case officer held:
In considering this reason, I must base my calculation on [Mr Oxenham's] child support income amount only. That being the case, I am satisfied he meets the 5 per cent threshold. [Mr Oxenham] is incurring costs of enabling contact which exceed 5 per cent of his child support income amount. I also find that the costs incurred during 2005 of $2113 do significantly affect the costs of maintaining the children, and so find that special circumstances exist in the case. Reason 1 is established.
The senior case officer then turned to a consideration of reason 2. He held:
To establish this reason, [Mr Oxenham] must show that the costs of maintaining the children are significantly affected because of their special needs. Neither child has any special need, and so there is no basis for an application under reason 2. The issue raised by [Mr Oxenham] is dealt with under reason 1.
That finding is not challenged.
The senior case officer then turned to a consideration of reason 7. He held:
To establish this reason, [Mr Oxenham] must show the capacity to provide financial support for the children is significantly reduced because of his necessary expenses for self‑support. In the application, [Mr Oxenham] says that he is unable to pay the assessed rate of child support because he has necessary expenses for self‑support which significantly affect his capacity to provide financial support for the children. In this case [Mr Oxenham] is currently assessed to pay child support of $402 per annum.
I accept that [Mr Oxenham] has medical expenses which would often constitute special circumstances under reason 7. However, his advice is that the total cost of medical expenses over the course of a full year would be around $280. I cannot find that this level of expenditure significantly affects his capacity to pay the assessed rate of child support. Other expenses claimed by him are usual daily costs of living and so do not of themselves constitute special circumstances. Reason 7 is not established.
There is no challenge to the finding of the $280 expense level in respect of the relevant financial year.
With regard to reason 8, the senior case officer held:
To establish this reason, [Mr Oxenham] must show that the relevant assessment is not fair because of the income, earning capacity, property and financial resources of either party.
[Mr Oxenham] submits that the current child support assessment is not fair, because it does not accurately reflect the income and or, earning capacity of [Ms Oxenham]. In conference [Mr Oxenham] raised three issues relating to [Ms Oxenham's] income and financial resources.
Firstly, [Mr Oxenham] says that the parties purchased a property at [S] while they were together. It was then sold to [Ms Oxenham’s] brother. The arrangement was apparently that he would either pay the amount of $100,000 or pay it off at $200 per week. [Mr Oxenham] says [Ms Oxenham] either received the lump sum or is continuing to be paid $200 per week by her brother.
[Ms Oxenham] denies this saying that her brother paid them $200 per week as rent (while the parties were still together) and that the full price was paid in 1996 at settlement date. $80,000 was used to repay the mortgage on the [S] property and the remaining $20,000 was paid into the [R] mortgage. She says that when the parties separated and had their property settlement, [Mr Oxenham] received his share of the [R] property and therefore a share of the proceeds from the [S] property.
Another issue raised by [Mr Oxenham] is that [Ms Oxenham] may be working in two schools. [Ms Oxenham] denies this saying she works part time five days per week in the one school only. [Ms Oxenham] has provided a copy of her payslip which confirms her current income. She advises part time work only because of the care and needs of the children.
[Mr Oxenham] suggests that [Ms Oxenham] may be tutoring children and receiving additional income from that source. Again [Ms Oxenham] denies this saying that she has tutored in the past but no longer.
The current child support assessment uses [Ms Oxenham’s] 04/05 taxable income of $28,746. Her payslip confirms an annual income of $29,614. The only assets declared by her are the home she lives in with the children which has a mortgage against it and a motor vehicle. On the information available to me I can find no basis to say that the child support assessment is unfair because of the income, earning capacity, property or financial resources of [Ms Oxenham].
Reason 8 is not established.
Accordingly, the senior case officer was satisfied that reason 8 of the wife's claim had been established and also reason 1 of the husband's cross‑claim had been established.
Following those determinations, the officer then considered the question of whether it was fair to change the assessment. In making that decision, he correctly stated that he:
must consider whether a change to the assessment would be fair, just and equitable to the children and both parents and fair to the community (otherwise proper). This means that where the payee receives an income‑tested pension or benefit I have to consider the effect a change to the assessment would have on the pension or benefit.
The senior case officer noted that:
Both parents have a primary duty to maintain their children and that that duty has priority over all commitments of the parent other than necessary commitments for himself or herself or any other child or person that parent has a duty to maintain. Additionally, the object of the legislation is to ensure that a child's proper needs are met from reasonable shares in the income, property and financial resources of both parents and that parents share equitably in the support of their children.
This then brings me to the gravamen of this dispute. It is common ground that the husband suffers from epilepsy. He has had very serious surgery, which obviously had quite significant consequences for him and appear to be having ongoing consequences which are very uncertain, literally, on a day‑to‑day basis.
As a result, at the time of the determination by the senior case officer it was noted that:
[Mr Oxenham] has a medical condition which diminishes his capacity to work and so he has been on a Disability Support Pension for the last two or three years.
However, it was noted, again in consideration of the wife's application, that the husband had recorded taxable income for the year 2004‑2005 of $112,217. The essence of this was proven by documentation provided to the officer by the husband as to the superannuation payment made to him.
The senior case officer held:
He has provided me with ETP payment summary. This reveals that [Mr Oxenham] was paid a gross amount of $336,253 on 30 June 2004. Only $119,810 of this gross amount was subject to tax. After tax, [Mr Oxenham] had net proceeds of $310,494.
The husband disputes the proposition that the payment was actually made on 30 June 2004, but nothing turns on that date for present purposes.
In his consideration of whether it was fair - that is, just and equitable - and otherwise proper to vary the assessment, the senior case officer returned to the question of those moneys. He found:
[Mr Oxenham] received a net lump sum of $310,494 in mid‑2004. As noted above, this is a substantial sum and cannot be ignored in circumstances where [Mr Oxenham] is paying a very minimal annual rate of child support. It simply cannot be said to be fair that [Ms Oxenham] and the taxpayer are required to bear the bulk of the financial burden of raising the two children when [Mr Oxenham] has a substantial amount of moneys available to him. I do not propose to impute an income amount to [Mr Oxenham] equivalent to the lump sum amount for the financial year in which it was paid.
Firstly, the amount is well in excess of the capped child support income amount allowed in the child support formula. Secondly, it was not income as such, it was a drawdown of his superannuation. Even so, it provides [Mr Oxenham] with a much greater capacity to contribute towards the costs of raising the parties' two children than the relevant child support assessment suggests. I propose to deal with this matter by referring to the Lee table.
The Lee table is an expenditure survey approach to determining the average cost of maintaining children at various ages. The legislation allows for the use of any relevant findings and published research in relation to the maintenance of children and this table is used by the Family Court and the Child Support Agency in determining similar cases. The Lee table suggests that the average cost of raising two children of the relevant ages is around $471 per week or $24,535 per annum. If I were to apportion those costs to each parent equally, [Mr Oxenham's] share would be $12,267 per annum.
Other issues which I consider are [Mr Oxenham's] capacity to earn an income. He has a medical condition which may mean that he will remain on Disability Support Pension indefinitely. If that is the case, his future incomes will be very limited. This means also that because he has drawn down on his superannuation he would most likely rely on the pension for the remainder of his life, and this provides a low income.
I also consider that [Mr Oxenham] has purchased a home, and so, if he were to move into it, his accommodation costs would be very low. If he does not choose to live there, he would have available to him rental income from an unencumbered property. I note he also tells me that he has $30,000 in the bank. I also take into account [Mr Oxenham's] medical expenses. He has a medical condition which requires ongoing treatment. In conference, [Mr Oxenham] advised that the costs to meet his medical needs amount to around $280 per annum, inclusive of prescriptions and visits to his doctor.
He also incurred high costs of contact. However, given the level of funds available to him to meet those costs, I intend to disregard the approximate $1912 expended in the 2004‑2005 year. Having regard to all the issues raised by both parents, the relevant financial position of both parents and the legal duty of [Mr Oxenham] to provide financial support to the children according to his capacity, I propose to set [Mr Oxenham's] annual rate child support at $12,267 for the period 1 July 2004 to 30 June 2005, which is the full year in which [Mr Oxenham] received his payment.
One of the husband’s most forceful submissions was that the $300,000 sum received by him constituted a lifetime of funds rather than funds for the whole year. In my view, that is an erroneous argument, in that the money was available in that year. The amount the husband was ordered to pay constituted a little less than 4 per cent of the net sum, and, in all the circumstances, in my view, the order made was entirely reasonable. Indeed, it would have been unjust and inequitable and otherwise not proper for an order not to have been made accordingly.
The determination of the objections officer effectively followed the same line of reasoning on the same facts as held by the senior case officer. Accordingly, it is unnecessary to analyse the objections officer's determination at this point.
Returning then to his Honour's judgment, it will be noted that his Honour, having examined all of the material, effectively held that there had been no error by the senior case officer or the objections officer and he adopted the reasoning set out in those two decisions.
To the extent that his Honour held in paragraphs 19 and 20 that there were no "special circumstances," I read that statement down to be taken in the context of his agreement with the reasoning set out by the senior case officer and the objections officer, each of whom found that there was a ground established in the costs of contact.
As I have previously noted, in order to establish that he should be given leave, the husband must establish that his substantive rights have been affected by an error of principle. In my view, the husband has not demonstrated that. In my view, particularly given that the determination related only to the 2004‑2005 year, it was a reasonable assessment within the factual ambit and the relevant legislation and the application for leave will accordingly be dismissed.

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate:

Date: 12 December 2008