Ryder and McCormack

[2016] FCCA 3323

FEDERAL CIRCUIT COURT OF AUSTRALIA

RYDER & MCCORMACK [2016] FCCA 3323

Catchwords:
FAMILY LAW – CHILD SUPPORT – Mother seeks order that father contribute equally to children’s private school fees – without proceeding to a hearing on the merits of the mother’s application, the application is dismissed due to failure of mother to comply with Rule 25A of Federal Circuit Court of Australia Rules, and her failure to afford procedural fairness to father.

Legislation:

Child Support (Assessment) Act 1989, ss.98B, 123(1)(a), 124(1), 124(2), 117(4), 98C(2), 117(2)

Applicant: MS RYDER

Respondent: MR MCCORMACK

File Number: BRC 4214 of 2013

Judgment of: Judge Newbrun

Hearing date: 18 September 2015

Date of Last Submission: 13 July 2016

Delivered at: Parramatta

Delivered on: 22 December 2016

REPRESENTATION

Applicant: In person

Counsel for the Respondent: Mr Page QC

Solicitors for the Respondent: Biggs Fitzgerald Pike

Counsel for the Independent Children's Lawyer: Ms Harding

Solicitors for the Independent Children's Lawyer: Brisbane Family Law Centre

ORDERS

1. Without proceeding to a hearing on the merits, the applicant mother’s proposed order 11, referred to in her draft minute of order, Exhibit 10, in which she seeks an order for both parents to contribute equally to the costs associated with the children’s private school fees, is dismissed.

THE COURT NOTES

1. The mother, following the making of the above dismissal order, will be at liberty to apply to the Child Support Registrar seeking an administrative departure order under s.98B of the Child Support (Assessment) Act 1989 (Cth), with a view to the father sharing equally the payment of private school fees for the children.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 4214 of 2013

MS RYDER

Applicant

And

MR MCCORMACK

Respondent

REASONS FOR JUDGMENT

Introduction

1. This judgment relates to the mother’s proposed order that both parents contribute equally to the costs associated with the children’s private school fees.

2. The father, in his written submissions in relation to the above proposed order of the mother, submits that in the circumstances, the Court is not possessed of jurisdiction to make any order between the parties with respect to child support.

3. In addition, or in the alternative, the father submits that on account of the mother’s failure to comply with the mandatory requirements in Part 25A of the Court’s Rules, he has been denied procedural fairness, in that he has not been afforded the opportunity to file a formal Response with supporting Affidavit material, in answer to the mother’s proposed order. In this context, the father submits, “In short, the father had no notice prior to the hearing, of the mother’s intention to apply for an order pursuant to section 123(1)(a) of the Child Support (Assessment) Act 1989”.

Background

1. On 28 April 2016 the Court delivered judgment in the final parenting proceedings between the parties, making final parenting orders in relation to the children X, born (omitted) 2002 and the child Y, born (omitted) 2004.

2. In paragraph 255 of the judgment (being the last paragraph of the judgment), the Court stated:

   [255]“As to the mother’s proposed order that both parents contribute equally to costs associated with the children’s school fees, the Court was not provided by the mother and father with detailed submissions at trial on this issue, noting the detailed evidential and other requirements of s. 124 of the Child Support (Assessment) Act 1989 (Cth). In these circumstances, the mother should file and serve short written submissions within 28 days as to how, on the evidence before the Court, the detailed evidential and other requirements of s. 124 (and noting the reference within s. 124 to relevant matters under s. 117 of the same Act to be addressed) have been satisfied such that the Court should make the order as to school fees that she seeks, with the father to file and serve his short written submissions in reply within a further 28 days.”

3. Pursuant to the above directions in paragraph 255 of the judgment, the mother filed written submissions on 26 May 2016, and the father filed his written submissions on 28 June 2016 in the Brisbane Registry of the Court (formally filed on 13 July 2016 in the Parramatta Registry of the Court).

4. Again, in the written submissions of the father, inter-alia, he submits that the Court lacks jurisdiction and/or he has been denied procedural fairness, in the context of the mother’s proposed order that the parties equally share the cost of the children’s private school fees. In this context, the Court refers to the following facts:

   a)The final hearing of the parenting proceedings commenced on 11 February 2015 in Brisbane. Day 2 of the final hearing was held on 12 February 2015. Day 3 of the final hearing was held on 30 March 2015 and an updating Family Report was ordered. Day 4 and 5 of the final hearing was held on 17 and 18 September 2015 in Brisbane, and judgment was reserved on that latter day. The Court’s final judgment was delivered on 28 April 2016.

   b)Prior to the commencement of the final hearing of the parenting proceedings, the mother had not sought an order in relation to the parties sharing equally the costs of the children’s private school education in any Application filed by her. Indeed, it was not until the last day of the final hearing on 18 September 2015 that the mother sought an order that both parents contribute equally to the costs associated with the children’s private school fees; see Exhibit 10.

5. On Day 1 of the final hearing on 11 February 2015 the only question asked by Senior Counsel for the father in cross examination of the mother relating to the children’s schooling was the following:

   “So you won’t change the schools of the children?”, which led the mother to respond:

   “Not – my only reason for changing the schools is because the school fees are very expensive, and I’m finding it hard to manage.”

6. Later that day, in cross examination of the mother by the ICL, there was this evidence:

   “MS HARDING (ICL counsel):   Do you wish to seek an order regarding the children’s schooling?   I may have to at some stage, because I – I’m not sure that I will be able to continue in the capacity that I have to be able to pay the school fees in its – in their entirety.”

7. On Day 2 of the final hearing, 12 February 2015, the ICL’s Counsel cross-examined the father in relation to school fees for the children and his financial ability to equally share the payment of such school fees. Following such cross examination, the father was re-examined by his Senior Counsel and the following exchange occurred:

   “MR PAGE:   When you say – when you were asked questions in relation to school fees, have you seen any application by the mother at any time or heard of it in relation to school fees?  

   I’ve never received an email or a text from Ms Ryder in regards to school fees, ever.”

8. On Day 3 of the final hearing, being 30 March 2015, no order was sought by the mother in relation to school fees.

9. It was not until final oral submissions by the mother on 18 September 2015, when she handed up her proposed draft minute of orders, Exhibit 10, that it became apparent to the parties, the ICL, and the Court, that the mother was seeking an order that both parents contribute equally to the costs associated with the children’s private school fees. Following the mother’s proposed draft minute of orders being handed up in Court, and the mother commencing her oral submissions in relation to the children’s school fees, Senior Counsel for the father promptly informed the Court that there was a Child Support Assessment in place, and the father was complying with it.

10. Finally, just before oral submissions were finally concluded on 18 September 2015, and before the Court reserved its judgment, Counsel for the ICL stated to the Court certain matters in relation to the mother’s proposed order for sharing of school fees, as follows:

    “Miss Harding (Counsel for the ICL): Your Honour, just on a matter of law, if your Honour is considering the order sought by the mother at paragraph 11 – that’s of her orders sought – I think it’s 11 – that’s dealt with by the Child Support (Assessment) Act, and from recollection its division 7, part 5 (sic division 5, part 7)…”

    “Miss Harding: If your Honour was considering making such an order.. Pursuant to Division 7, part 5 of the Child Support (Assessment) Act, and there is specific matters that it would require your Honour to consider… I think it section 124.”

11. The Court then adjourned and reserved its judgement.

12. In the context of the father’s submissions that the Court lacks jurisdiction and/or he has not been afforded procedural fairness in relation to the mother’s proposed order in relation to school fees, he submits the following matters:

    a)Complying with Part 25A of the Courts Rules, the mother, in seeking the orders that she seeks in relation to school fees, should have filed:

    i)an appropriate Application in accordance with the approved form;

    ii)an Affidavit setting out the facts and circumstances relied on and the grounds of the Application, attaching:

    A)   a copy of any assessment relevant to the application made by the Child Support Registrar; and

    B)    a copy of any decision relevant to the application made by the Child Support Registrar or the Tribunal, and any statement of reasons for that decision; and

    C)    a copy of any orders relevant to the application;

    iii)a completed Financial Statement in accordance with the approved form.

13. Further, the father submits that the service requirements of Rule 25A.07 should have been complied with by the mother, including service of relevant documents upon the Child Support Registrar.

14. Further, the father submits that the provisions of Rule 25A.08, relating to evidence to be provided by the applicant, should have been complied with by the mother, and she failed to do so. This Rule provides, inter-alia;

    “On the first Court date and the hearing date of an application each party (other than the Child Support Registrar) must bring to the Court the following documents:

    A) a copy of the parties’ taxation returns for the 3 most recent financial years;

    B) the parties’ taxation assessments of the 3 most recent financial years;

    C) the parties’ bank records for the period of 3 years ending on the date when the application was filed;

    D) if the party receives wage or salary payments the parties’ payslips for the past 4 pay periods;

    E) if the party owns or controls a business, either as a sole trader, in partnership or through a company – the business activity statements and the financial statements and accounts (including profit and loss statements and balance sheet) for the business for the 3 most recent financial years;

    F) any other document relevant to determining the income, needs and financial resources of the party.

15. The father submits, in summary, that, in terms of the mother’s proposed order in relation to school fees, at no time prior to the hearing on 11 February 2015 did the mother file a formal application as required by Rule 25A.02(1); the mothers proposed order was sought belatedly at the final hearing, through the handing up of her proposed minute of order (Exhibit 10); she failed to comply with the mandatory requirements in Rule 25A; and she has belatedly sought to rely upon documents attached to her written submissions filed 26 May 2016, when these documents have not previously been served on the father in accordance with the rules.

16. The father submits, in the alternative, that he has been denied procedural fairness, and, in this context, submits, inter alia, that he had no notice prior to the hearing of the mother’s intention to apply for the order she now seeks; because of the mother’s belated application on the last day of the final hearing seeking the relevant order for sharing school fees, the father’s Senior Counsel did not relevantly cross-examine the mother and/or lead evidence from the father, and in circumstances where the mother, prior to the final hearing, had not filed the relevant Rule 25A evidence that she was required to file and serve.

17. The father submits that, in any event, pursuant to section 124(1) and (2) of the Child Support (Assessment) Act 1989 (Cth), in this context, his financial circumstances have changed significantly since the final hearing on 18 September 2015; two new Child Support Assessments have been issued, the most recent one being for the child support period 26 May 2016 to 30 June 2016; the current administrative assessment in force provides for the father to pay child support at the rate of $34.50 per month on the basis of a significant change in the financial circumstances of the father (i.e. he is no longer employed, having ceased work on 31 March 2016, as a result of the breakdown of the working relationship with his business partner, and he has applied for Centrelink benefits); and the father has not been afforded the opportunity of putting on evidence as to details of this latter change in his circumstances. In compliance with section 117(4) of the Child Support (Assessment) Act 1989 (Cth), the current administrative assessment is not in evidence before the Court, yet the Court must have regard to it under section 124(2) of the Child Support (Assessment) Act 1989 (Cth), the father had not sworn any Financial Statement in the parenting proceedings because no child Support Application was on foot by the mother; and the father and the Court cannot know anything of the mother’s current financial position.

Summary

1. In the above circumstances, this Court is of the view that, having considered the written submissions of both parties, by reason of the mother’s failure to comply with Rule 25A of this Court’s Rules (referred to above in detail) in relation to her proposed order that the parties contribute equally to the children’s private school fees, this Court is unable to properly consider her proposed order in relation to school fees. Further, and in any event, in the above circumstances for this Court to proceed with the mother’s proposed order in relation to school fees would represent a denial of procedural fairness to the father, in that he had no prior notice before 18 September 2015 (the last day of the final hearing) of the mother’s intention to seek an order in relation to school fees, and in circumstances where the mother had previously failed to comply with the procedural and evidential requirements of Rule 25A of this Court’s rules, as discussed above.

2. Accordingly, the Court will dismiss the mother’s application for an order in terms of proposed order 11 in her draft minute of order, Exhibit 10. It is important to note that this dismissal does not represent in any manner a finding on the merits of the mother’s proposed Application for an order against the father in respect to private school fees.

3. The mother, following the making of the above dismissal order, will be at liberty to apply to the Child Support Agency seeking an administrative departure order under s.98B of the Child Support (Assessment) Act 1989 (Cth), with a view to the father sharing equally the payment of private school fees for the children. The Court notes, by reference to section 98B of that Act, section 98C(2), which in turn refers to section 117(2), that section 117 (2)(b)(ii) includes, as a ground for departure from an administrative assessment,

   “that, in the special circumstances of the case, the costs of maintaining the child are significantly affected because the child is being ...educated...in the manner that was expected by his or her parents”.

   In this latter context, the Court notes the evidence of the parties at the trial of the proceedings that they both desired the children to be educated privately at the (omitted) School.

I certify that the preceding twenty three (23) paragraphs are a true copy of the reasons for judgment of Judge Newbrun

Date:  14 December 2016