Reiner and Reiner and Anor (SSAT Appeal)
[2013] FCCA 189
•14 May 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REINER & REINER & ANOR (SSAT APPEAL) | [2013] FCCA 189 |
| Catchwords: CHILD SUPPORT – SSAT Appeal – Family Law Act1975 (Cth) and related legislation – children – child support legislation – appeal for departure from assessment – special circumstances – income or other financial resources – no matter of principle. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), s.117(2)(b)(ii) Family Law Act1975 |
| Cases cited: Mee v Ferguson (1986) FLC 91-716 Reiner & Reiner [2009] FamCA 926 |
| Applicant: | MS REINER |
| First Respondent: | MR REINER |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | DGC 1284 of 2007 |
| Judgment of: | Judge Riethmuller |
| Hearing date: | 22 February 2013 |
| Date of Last Submission: | 22 February 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 14 May 2013 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the First Respondent: | In Person |
| Counsel for the Second Respondent: | No Appearance |
| Solicitors for the Second Respondent: | Child Support Registrar |
ORDERS
The Notice of Appeal filed on 22 June 2012 be dismissed.
There be no order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Reiner & Reiner & Anor (SSAT Appeal) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 1284 of 2007
| MS REINER |
Applicant
And
| MR REINER |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
The Applicant appeals from a decision of the Social Security Appeal Tribunal made on 17 May 2012 reducing the annual rate of Child Support payable by the Respondent to the sum of $825 for 2011 and $868 for 2012.
The central issue in the decision by the SSAT was a determination of whether or not a ground for departure is made out under s.117(2)(b)(ii) of the Child Support (Assessment) Act1989 which provides as follows:
(b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents
The Tribunal set out in some detail the case put forward by the Respondent with respect to private school fees for the child, including that the child was enrolled on a waiting list when less than 2 years of age, and the case of the Respondent which is to the effect that as a result of agreements reached and Court orders made in the Family Court of Australia in litigation involving the care arrangements of the child, the Respondent was to bear the financial responsibility for the school fees.
The Tribunal member identified that the Tribunal needed to consider the type of education intended by both parents for the child, referring to Wild v Ballard (1997) FLC 92-771, but noting also that the mere fact that a parent could afford to pay for private school tuition is not of itself a reason for imposing a liability to pay school fees: see Mee v Ferguson (1986) FLC 91-716.
The Tribunal concluded that although there were Orders by consent that [J] attend a private school the Tribunal placed little weight on them “as demonstrative of Ms Reiner’s expectations in regards to the education of [J]” (see paragraph 46).
The Tribunal identified that “Ms Reiner has maintained that she only agreed to [J] attending [M School] on the understanding that Mr Reiner would pay for all the school fees and claims that the orders state this”.
The Tribunal went on to correctly identify that there were no Court orders that specifically related to school fees, although there is an order as to which school the child should attend, and similarly that there were no orders relating to medical expenses although one of the parents is given sole parental responsibility with respect to medical issues, and that the orders with respect to medical expenses do go on to indicate the circumstances where the Respondent would pay for medical expenses.
Importantly, as the Tribunal found at paragraph 50, Ms Reiner “stated she initially arranged for [J] to attend [M School] and expected him to do so. It was only when the relationship with Mr Reiner broke down that she objected. The fact that her two other sons (of whom Mr Reiner is not the father) attended [M School] and one continues to attend (even after the dispute over [J] attending this school) is a strong indication that Ms Reiner had an expectation that [J] be educated at a school with Christian ethos like [M School] and would have the same kind of education as her other two sons”.
The Tribunal noted that Ms Reiner later objected to [J] attending [M School], but found that there was an expectation on the part of both parties that [J] would be educated at a school with Christian ethos.
It is difficult to see that any criticism can be made of the Tribunal in the findings it made in this regard. It is clear from the face of the Court orders that no orders were made with respect to the fees for the private school. It is also clear that there is a finding of fact by the Tribunal that the child is being educated in a manner expected by his or her parents. I am not persuaded that the Tribunal erred in making this finding, which established the first element of whether or not the child is being educated in the manner that was expected, as was required by s.117(2). The Tribunal also accepted that the cost of private school fees significantly affected the costs of maintaining the child and therefore a special circumstance was established under s.117 (see paragraph 53).
The Tribunal then turned to the issue of whether or not it would be just and equitable to depart from the current child support assessment. In this regard the Tribunal traversed each of the items as set out in s.117’s definition of just and equitable, in particular identifying income, property and financial resources of the parties to the proceeding and their expenses. Ultimately the Tribunal found:
103. In relation to the school fees the Tribunal has found that it was both parents’ expectation that [J] receive a Christian education. The Tribunal acknowledges that in 2009 Mr Reiner was indicating that he was prepared to pay for the additional costs of the private education (as he had done when they were a couple). He had given evidence that he would get a second job if necessary to pay for it. His evidence to the Tribunal however was that he assumed that Ms Reiner was paying half the school fees until he recently found out she was not. Further the fact she now had employment and an income also contributed to the change in attitude. The Tribunal regards it as just and equitable that Ms Reiner makes some contribution to the school fees. The school has indicated that the arrangement that only half of the scheduled fees be levied will change next year so the Tribunal only proposes to make a determination for the past years.
The Tribunal went on to consider the specific capacity of the parties and of the actual school fees involved in previous years, being in excess of $2,200 each year. Ultimately the Tribunal determined that the fees should be met by the parties in proportion to their gross income saying:
106. In 2011 Ms Reiner taxable income with donations added back in was $42,768 and Mr Reiner’s was $72,974. (Total pooled income $115,742). Thus of the total parents’ income Ms Reiner earns 37% and Mr Reiner 63%. If Ms Reiner contributed 37% of the school fees her contribution would be $825 in 2010 and $868 in 2012.
Neither party raises any argument as to the method by which the Tribunal struck the contribution figure in this case.
Grounds of Appeal
All of the grounds of appeal relate in substance to the complaint that the Tribunal made a decision with respect to a matter that had already been dealt with by Justice Cronin in the decision in the Family Court on 25 September 2009. The grounds were expressed as follows:
1. That the Tribunal exceeded its jurisdiction by overruling an order made by Justice Cronin, a Justice of the Family Court, on 25 September 2009.
2. That the Tribunal made an error in law making an order with respect to the education of the child when this matter had already been ruled on by Justice Cronin of the Family Court.
3. That the Tribunal acted in breach of the Convention on the Rights of the Child in failing to take into account the level of conflict between the child’s parents and ruling on a matter that had already been ruled on by Justice Cronin of the Family Court and which Justice Cronin had clearly identified as a highly contentious issue between the parties.
4. The Tribunal made an error in law in finding that the parties had a shared expectation about the child’s education that could form the basis of the Tribunal’s ruling.
The decision in the Family Court in Reiner & Reiner [2009] FamCA 926 is lengthy, running for some 352 paragraphs over 92 pages. It traverses a very large range of issues that existed between the parties. There are 29 Orders dealing with the parenting and property matters between the parties. The relevant orders in the question before me are Orders 2, 3, 6 and 7 which provide:
(2) That the husband have sole responsibility for all major educational decisions concerning the child during his primary school years but thereafter, the husband and wife shall make the decisions jointly.
(3) That the wife have sole parental responsibility for all major medical decisions concerning the child.
(6) That save as set out above, the husband and the wife have equal shared parental responsibility for the child.
(7) That the child live with the wife.
The key order is Order 2 which provides that the husband have sole responsibility for educational decisions for the child during his primary school years.
The Applicant also relied upon two passages from the judgment. At paragraph 250 Cronin J said:
250. I find therefore that both parents can provide most things for [J]. In terms of emotional needs, I find the wife is likely to take her responsibilities more seriously than the husband. It is this last point that distinguishes the wife from the husband. The husband’s focus on [J] as being someone very important in his life is commendable. Although his position about paying for [J’s] private education was at first perplexing having regard to the wife’s financial position, when pressed, he said he would do whatever was necessary including getting a second job to pay for all of it. That might have an adverse impact on [J] if the husband was caring for him under the orders he pursued. However, when looking at how each parent has demonstrated their responsibilities as parents, I have concerns about both. It then becomes a question of balance.
And then at paragraph 268, which provides:
268. The Independent Children’s Lawyer’s position was simply that equal shared parental responsibility should be ordered leaving the parties to their own devices. That will not work. However, neither will separating out the responsibilities as decisions will be made without consultation and I have no confidence about the imposition of educational or medical issues one upon the other. There comes a point in time however where the Court cannot govern the daily lives of parents. In relation to the issues of health and education, [J] needs the involvement of both of his parents. The husband volunteered to ensure that at his cost, [J] will remain at a privately funded school. The husband is a [occupation omitted] whose interests lie in ensuring that [J] gets the best opportunities. I see no reason why he should not have the opportunity to make the decisions about education providing he is obliged to consult the wife and consider her views. That obviously needs to be done within a reasonable timeframe prior to any decision being implemented particularly as the wife will be responsible for getting [J] to school and ensuring he has all of the necessary requisites for participation. The education issue should not be open ended however. I propose to only make an order that the husband have sole responsibility for making decisions about [J’s] primary school education but after that, the parties will need to have worked out a solution for his secondary education amongst themselves.
It appears clear from the orders made by Cronin J that His Honour only dealt with which parent had parental responsibility for the choice of school, and that his reasons set out a finding that the husband volunteered to ensure that at his cost the child would remain at a privately funded school. In light of the terms of the orders and the relevant passages from the judgment the findings by the Tribunal at paragraph 47 appear entirely accurate, namely that the Family Court made no orders regarding payment of school fees, and that the father had volunteered to meet the expenses.
To the extent that ground 1 of the appeal alleges that the Tribunal purported to overrule an order made by Cronin J, I find that the Applicant cannot succeed. There is no decision by the Tribunal that is expressly in conflict with any actual order of Cronin J.
With respect to the second ground of appeal the Applicant alleges that an alteration to the child support assessment with respect to the education of the child affected an issue upon which Cronin J had ruled. There is no ruling by Cronin J with respect to education expenses. As a result it cannot be said that this amounted to a determination that was an actual interference or indirect interference with an order made by Cronin J. At its highest, the Tribunal has made a determination, which on the applicant’s case, is contrary to the position stated by the respondent to Cronin J, being a position upon which Cronin J relied in making the orders that His Honour did make.
If the Respondent has recanted from his position when before Cronin J this could theoretically lead to the Applicant having the opportunity to apply to Cronin J for a variation of the parenting orders in this regard (if she can overcome the threshold in Rice v Asplund). The Applicant may also rely upon any representations made by the Respondent to the Family Court as relevant facts and circumstances in determining what, if any, contribution ought to be made by the Applicant to the relevant school fees similar to the way in which an estoppel by conduct might arise in a common law or equitable action.
Ground 3 cannot succeed on the basis of the findings that I have made that the issue of school fees have not been the subject of a ruling by Cronin J nor does it appear that issues relating to child support were litigated in the family law proceedings before the Family Court. Whilst arguably they could have been included in the matters in dispute between the parties, and that therefore an Anshun style estoppel could arise, the operation of s.116, (and the nature of the child support scheme) make clear that it is not contemplated that child support issues would be included in the issues brought to the Court in parenting or property cases in the ordinary course. For these reasons no Anshun style estoppel ought to arise, and certainly in my view does not arise in a case such as this.
As the issue relating to child support had to ultimately be determined I find no breach by the Tribunal of any aspect of the Convention of the Rights of the Child. Rather, the Tribunal fulfilled its duty and obligations as a review Tribunal in determining the factual issues relating to appropriate levels of child support in this case.
The final ground of appeal refers to an alleged error in law in finding that the parties had a shared expectation about the child’s education. On the material before me it appears clear that the parties did have shared expectations about the child’s schooling, and such finding was clearly open to the Tribunal. The real issue in this case relates to the costs of that schooling and the capacity of the parties to meet that expense.
It appears clear that the husband stated to Cronin J that “he would do whatever was necessary including getting a second job to pay for all of it [the schooling]”. This was in response to His Honour’s consideration of the capacity of the parents, at the time they appeared before him to meet the expenses for the child’s private education, which His Honour noted “was at first perplexing having regard to the wife’s financial position”.
On my reading of his Honour’s judgment his Honour was addressing the issue from the perspective of a determination under Part VII of the Family Law Act of what would be appropriate parenting orders, and in particular what would be in the child’s best interests. In this context the more fundamental practical question was whether or not the parties, between them, had the financial capacity to be able to fund a particular private school education. It is clearly not in a child’s best interests for orders to be made for a particular type of education if the parents are ultimately unable to fund such an education. It would place the child in an awful position, and place the parents in a position which could result in them being in breach of court orders.
On the evidence before his Honour, Cronin J found that whilst there were clearly concerns about the capacity to meet the private school expenses the Respondent would ensure that enough earnings were generated to pay those expenses. This was no doubt an integral part of his Honour’s ultimate conclusions with respect to the parenting orders around the choice of school and education. The fact that his Honour quite properly considered these questions does not show that his Honour had made a finding with respect to which parent must pay any given part of the private school expenses.
This is particularly important in a case where it seems clear that from a very early stage that the parents had contemplated that the child would attend a private school. In this case there appears little doubt that the parents hold the common intention for a particular manner of education and that the real question related only to whether or not they could reasonably meet those expenses. It is not open to either parent to refuse to agree to a child’s participation in education in the manner contemplated by the parties simply for the purpose of extracting an undertaking by the other parent to meet all of the expenses involved. The question of the proportions of the expenses that should be met by each parent is ordinarily a matter for child support and requires careful consideration of the income earnings, property and financial resources of the parents together with the obligations and expenses.
The question of whether or not the parents have the overall capacity to fund such an education is important in determining whether or not a parenting order should be made reflecting their earlier common intention as to the manner of education, along with a host of other considerations particular to the child’s needs, which are not relevant in this particular appeal.
To the extent that the Tribunal ought to have considered the representations made by the Respondent to the Family Court as part of his case relating to the parenting orders (considerations in the style of estoppel by conduct) there is no doubt that the Tribunal carefully considered precisely what the representations were and the conduct of the parties. The Tribunal refers specifically to the Reasons for Judgment, the extent of the proceedings (the case had involved 36 court appearances before the Family Court of Australia, demonstrating that it was an exceedingly high conflict case). The Tribunal also had regard to the transcript of the proceedings (paragraph 49).
There is also no doubt that the Tribunal, after determining that the child’s education was in the manner expected by the parents, squarely turned to the key issue of “Whether the fees can be met (and the proportions in which the parents must contribute), …having regard to the parents’ actual financial positions…” (see Tribunal reasons at paragraph 54).
The Tribunal also addressed the parties’ income and expenses and earning details in paragraphs [66] to [85]. Included is specific consideration as to the Applicant’s statement of financial circumstances and an identification of a shortfall between her expenses and expenditure as set out in that statement.
Ultimately I am not persuaded that the Applicant has shown that the Tribunal erred at law in the way in which the Tribunal approached the matter. The findings of the Tribunal were open to it on the evidence before it.
In the circumstances I therefore dismiss the appeal.
As both parties represented themselves in the matter I make no order as to costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller
Date: 3 May 2013
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