Pirelli and Pirelli & Anor - [2018] FamCA 411

FAMILY COURT OF AUSTRALIA

PIRELLI & PIRELLI AND ANOR

[2018] FamCA 411

FAMILY LAW – CHILD SUPPORT – Application for departure – where the mother seeks that the father pay the child’s private school fees and associated costs in addition to the assessed amount – where the father seeks the application be adjourned until the latest assessment is determined – where the mother has established a ground for departure – where it is just and equitable and otherwise proper to make a departure order.

FAMILY LAW – CHILD SUPPORT – Payment in a form other than periodic payment – where the mother seeks the father pay all school costs and private health fund insurance premiums for the child by way of non-periodic child support – where in the special circumstances of the case it is just and equitable and otherwise proper to order payment in a form other than periodic payment.

Child Support (Assessment) Act 1989 (Cth)

Babbit & Babbit (2011) 46 Fam LR 77
Gyselman & Gyselman (1992) FLC 92-279
Saberton & Saberton [2013] FamCAFC 89
Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Pirelli

1^st RESPONDENT:

Mr Pirelli

2^nd RESPONDENT:

Pirelli Pty Ltd as Trustee for The Pirelli Trust

FILE NUMBER:

BRC

778

2017

DATE DELIVERED:

6 June 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

11 May 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ginklater-Steele

SOLICITOR FOR THE APPLICANT:

Ramsden Lawyers

1^ST RESPONDENT:

In person

2^ND RESPONDENT:

Mr Pirelli

Orders

IT IS ORDERED UNTIL FURTHER ORDER THAT

Pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”), there be a departure from the administrative assessment of the child support payable for the child, X born … 2010 (“the child”) by Mr Pirelli (“the father”) to Ms Pirelli (“the mother”).
The annual rate of child support payable by the father for each calendar year for the child be in accordance with the administrative assessment of the Agency responsible for the determination of administrative assessments.
In addition to the child support payable in accordance with Clause (2) above, and pursuant to s 117 of the Act, the father pay child support to the mother as follows:
(a)for so long as the child continues to be enrolled to attend school at the J School (“JS”): the amount calculated in accordance with the following formula, which shall be payable by the father on or before the 28^th day of each calendar month:
A x (4/12)
Where:
A = the amount per Term in each calendar year for the child to attend JS based on the JS Domestic Fee Schedule published each year by the JS on its website from time to time (such amount payable to be inclusive of tuition fees and fees for resources, camps and excursions): or
(b)in the event that the mother and the father agree, in writing, for the child to attend a school other than JS and the child is…

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 Pirelli and Pirelli & Anor

Details

AGLC: Pirelli and Pirelli & Anor [2018] FamCA 411
Case: [2018] FamCA 411
Decision Date: 6 June 2018

CaseChat Overview and Summary

In *Pirelli and Pirelli & Anor*, Hogan J considered an application by the mother seeking a departure from the administrative assessment of child support payable by the father for the parties' child. The mother sought orders for the father to pay the child's private school fees and associated costs, as well as private health insurance premiums, in addition to the assessed amount. The father had sought an adjournment of the application until the latest assessment was determined.

The court was required to determine whether the mother had established a ground for departure from the administrative assessment under section 116 of the *Child Support (Assessment) Act 1989* (Cth). Specifically, the court had to consider if it was just and equitable and otherwise proper to make a departure order, and if so, whether payment in a form other than periodic payment was warranted under section 117 of the Act, given the special circumstances of the case. The court also considered the father's obligation to pay school costs and private health insurance premiums as non-periodic child support under section 124 of the Act.

Hogan J found that the mother had established grounds for departure and that it was just and equitable to make a departure order. The court reasoned that the specific circumstances warranted ordering the father to pay the child's private school fees directly, in addition to the standard child support assessment. This was to be calculated based on the school's fee schedule and paid monthly. Furthermore, the court ordered the father to pay, as non-periodic child support, all school costs not otherwise covered by the orders, including extra-curricular activities, uniforms, books, excursions, private tutoring, and school-related equipment, as well as private health insurance premiums and any medical gap payments.

The court ordered that the father pay child support in accordance with the administrative assessment, and in addition, pay the child's private school fees as specified. The father was also ordered to pay specified school costs and private health insurance premiums as non-periodic child support. The annual rate of child support payable under the administrative assessment was not to be reduced by these additional payments.

Orders

Orders of the court

IT IS ORDERED UNTIL FURTHER ORDER THAT

Pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth) (“the Act”), there be a departure from the administrative assessment of the child support payable for the child, X born … 2010 (“the child”) by Mr Pirelli (“the father”) to Ms Pirelli (“the mother”).

The annual rate of child support payable by the father for each calendar year for the child be in accordance with the administrative assessment of the Agency responsible for the determination of administrative assessments.

In addition to the child support payable in accordance with Clause (2) above, and pursuant to s 117 of the Act, the father pay child support to the mother as follows:

(a) for so long as the child continues to be enrolled to attend school at the J School (“JS”): the amount calculated in accordance with the following formula, which shall be payable by the father on or before the 28th day of each calendar month:

A x (4/12)

Where:

A = the amount per Term in each calendar year for the child to attend JS based on the JS Domestic Fee Schedule published each year by the JS on its website from time to time (such amount payable to be inclusive of tuition fees and fees for resources, camps and excursions): or

(b) in the event that the mother and the father agree, in writing, for the child to attend a school other than JS and the child is no longer enrolled to attend at JS: the amount calculated in accordance with the following formula, which shall be payable by the father on or before the 28th day of each calendar month:

B x (4/12)

Where:

B = the amount per Term in each calendar year (inclusive of tuition fees and fees for resources, camps and excursions) for the child to be entitled to attend the school he is then enrolled in.

For the purposes of calculating the amount payable by the father pursuant to Clause (3) above, the mother shall and is authorised to:

(a) notify the Agency in writing of:

(i) for so long as the child continues to be enrolled to attend school at JS: the amount payable per Term in each calendar year for the child to attend JS based on the JS Domestic Fee Schedule published each year by JS on its website from time to time (such amount payable to be inclusive of tuition fees and fees for resources, camps and excursions); and

(ii) in the event that the child is no longer enrolled to attend JS: the amount payable per Term (inclusive of tuition fees and fees for resources, camps and excursions) in the relevant calendar year for the child to entitle him to attend the school he is enrolled in;

(b) include the relevant JS Domestic Fee Schedule published by JS on its website with any notification pursuant to Clause (4)(a)(i); and

(c) include the relevant Term Fee Schedule published by the relevant school with any notification pursuant to Clause (4)(a)(ii); and

(d) send a copy of any such written notification forthwith to the father.

Pursuant to s 124 of the Act, the father shall pay to the mother, by way of non-periodic child support for the child, the following:

(a) all school costs (defined as the costs of or associated with: extra-curricular activities as agreed between the parties, school uniforms and shoes, sports uniforms, school books, excursions (exclusive of interstate or international travel), private tutoring fees and school related equipment and events) not otherwise the subject of any orders herein and which are incurred as a result of the enrolment of the child at school; and

(b) private health fund insurance premiums for the child at the level to which the child is currently insured (or was insured as at 5 May 2017); and

(c) an amount equal to all the gap payments for medical, hospital, optical, dental, orthodontic, physiotherapy and other similar expenses in relation to the child when the same are not covered by the private health fund rebate.

Pursuant to s 125 of the Act, the annual rate of child support payable by the father under any relevant administrative assessment by the Agency is not to be reduced by the amount payable pursuant to Clause (5) above.

In order to facilitate compliance with the terms of this Order, Clause 2.8 of the Order made on 5 May 2017 is discharged and the following Order is made in lieu of the same:

2.8 otherwise up to an amount of $700.00 per week plus an amount for accommodation costs of the respondent of up to $750.00 per week plus such further amount as will enable him to pay any child support (including any amount assessed for private school fees) as may be assessed from time to time by the child support agency or ordered by the Court, conditional upon him only using that amount to meet his assessed or ordered obligation to pay child support.

In the event that a party seeks an order that the other party pay the costs of and incidental to the Application in a Case sealed 3 April 2018:

(a) the party seeking an order for costs shall, within fourteen (14) days of today, file and serve brief written submissions in support of such application for costs; and

(b) the party from whom costs are sought shall, within a further fourteen (14) days thereafter, file and serve any brief written submissions in answer to the submissions filed and served by the party seeking costs; and

(c) the party seeking costs shall, within seven (7) days of its service, file and serve any brief further written submissions, strictly in reply to the submissions served by the party from whom costs are sought,

and any such application for costs shall thereafter be determined in Chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.