S & S

[2003] FamCA 1133

[2003] FamCA 1133

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE      No. NA 42L of 2003
  (No. BRM 2885 of 2000)

BETWEEN:
  S

Applicant Husband

AND:
  S

Respondent Wife

BEFORE THE HONOURABLE JUSTICE WARNICK

REASONS FOR JUDGMENT

Dates of Hearing:              17 September 2003

Date of Judgment:            7 November 2003

Appearances:  The Applicant Husband appeared in person

Mr Slack of Counsel, instructed by Geoff Mallett & Associates, Solicitors, appeared on behalf of the Respondent Wife

Catchwords: APPEALS – Leave to appeal – From decision of Federal Magistrates Court – CHILD SUPPORT – Departure application – Whether proof that assessment formula produced a sum in excess of child’s needs according to survey constituted special circumstances – Misconceived argument - Interpretation and application of s117(2)(c)(i) Child Support (Assessment) Act 1989 - No error of principle by Magistrate

Application dismissed – Applicant to pay the mother’s costs of and incidental to the application for leave to appeal

1. Mr S and Ms S are the separated parents of C, born in 1995.  The father has been assessed under the Child Support (Assessment) Act 1989 to pay child support. In the Federal Magistrates Court he brought an application seeking to depart from that administrative assessment, but his application, heard on 17 June 2003, was dismissed on 20 June 2003.

2. From that decision the father seeks leave to appeal.  These reasons are in respect of the disposition of that application, which was argued with the proposed appeal.

3. Both before the learned Federal Magistrate and before me the arguments presented by the father, who appeared for himself, were based on an interpretation and application of a particular paragraph of section 117 of the Child Support (Assessment) Act 1989.

4. In this situation, the hearing before the learned Magistrate proceeded in something of a summary fashion.  Since some of the grounds of appeal relate to the manner of proceedings in the Federal Magistrates Court, some discussion about that is warranted.

The proceedings before the Federal Magistrate

(a)     The initial hearing

1. The application of the father first came before the Federal Magistrates Court on 28 April 2003.

2. Ms Cassidy of counsel appeared for the mother and after the matter was called she informed Federal Magistrate Rimmer:

   “…he’s filed an application and a one page affidavit with a number of annexures and it would be my submission that he doesn’t disclose the basics (sic – presumably basis) for the application and the cause of action and that we’ll be seeking to strike it out summarily.  You may not be able to deal with that today but I’ll just raise that and then if you’re not minded to contemplate that course of action then will need (sic) to be directions for the filing of material.…”

3. Some discussion between the bench and the father about the basis of his application followed. The father maintained that his grounds were under section 117(2)(c)(i) of the Assessment Act, in particular that the proper needs of the child had not been considered.

4. The application of the father had apparently not been filed in a form 63.

5. Ultimately, the Federal Magistrate adjourned the matter for hearing to 17 June 2003, ordered that the husband file and serve a form 63 and updated affidavit and that the wife file and serve material in response.

(b)     the father’s material

1. On 24 February 2003, the father had filed a statement of financial circumstances and an affidavit.  That affidavit was one page long and contained little if anything of relevance.  The reasons for the decision, made on application for an alteration of the assessment, by a case officer within the Child Support agency and various child support assessments were annexed.

2. On 6 May 2003, shortly after the initial hearing by the learned Federal Magistrate, the father filed a further affidavit, the text of which is also only one page in length.  There, he stated that he did not dispute his ability to pay child support and said:

   “…What I do dispute is the value purported to be the true cost of meeting our son’s ‘proper needs’ and the apportioning of these costs between myself and my ex-wife in a just and equitable manner.

   2.  That the current CSA assessment exceeds the total gross cost of raising our child as determined by recently published research conducted by the Budget Standards Unit (BSU) of the Social Policy Research Centre (SPRC) of the University of New South Wales (UNSW) at the modest but adequate level and is therefore neither just nor equitable.”

3. In short, it appeared from the father’s material that he wished to argue:

   · that any tables or figures relating to needs of children underlying the formula used in the Assessment Act were inaccurate,

   · that the BSU research was to be preferred,

   · that therefore the assessment was not just and equitable and,

   · therefore a ground for departure pursuant to section 117(c)(i) existed.

4. The balance of the further affidavit filed by the father consists of annexures constituting:

   · an “analytical comparison of the Lee tables with the BSU study”;

   · budget standards and the costs of children;

   · CPI weighted average of 8 capital cities;

   · average weekly earnings (all males) total earnings figures, and

   · material relating to an argument of the father that a departure should be backdated so as to expunge arrears.

5. The affidavit of the father also contained material relating to the earning capacity of the mother.  That was a point argued before the Federal Magistrate and her dealing with that point was also the subject of some of the proposed grounds of appeal.  However, before me the father indicated that he would not pursue those particular grounds.

6. The father also filed a form 63 on 6 May 2003, to which were annexed submissions.

7. On 10 June 2003, the father filed an affidavit in reply to material of the mother.  This affidavit almost entirely related to the circumstances surrounding a business operated by the mother, a matter which is not relevant to this application for leave to appeal, since as just noted, any ground relating to the mother’s earning capacity has been abandoned.  As an annexure to the affidavit however, there was a “submission refuting the respondent’s purported costs of raising our son”.  As a subheading, the document was said to contain:

   “Evidence of items that are beyond the proper needs and have an incorrect apportionment between the respondent and our child, and justification for the rejection of these figures in favour of the BSU study.”

8. As well, there was other material relating to costing of products and services.

The hearing of 17 June 2003

1. When the matter came before Federal Magistrate Rimmer the father read all his material.  However, some of the “published research” upon which he wished to rely was rejected.  No appeal point relates to that ruling.  After the Federal Magistrate returned form an adjournment to read material, Ms Cassidy for the mother immediately began a submission that:

   “…there hasn’t been a demonstrated special circumstances in this case and therefore it shouldn’t go past that point.…”

2. Shortly after, she said, referring to a decision of the Chief Federal Magistrate in G & G [2002] FMCA fam 25:

   “…What her Honour says in that case at paragraph 24:

   ‘In order to determine as the first step whether there are special circumstances, all the relevant facts of the case must be considered.’

   And in this case there is nothing that the husband has pointed to in his submissions that makes out a special circumstance and all of these cases I am taking you to are on that point, your Honour.…”

3. Counsel for the mother continued, referring to other cases and then suggested that the argument of the husband was as follows:

   “What he seems to be saying is that he wants your Honour to consider this new set of figures that he says should be used instead of Lovering & Lee and then the comparison between that and what he is paying he would argue makes the special circumstance.

   My submission is you cannot go to the needs of the child in the subsection until you have made out the special circumstance and so for that reason…”

4. The learned Magistrate then sought to summarise the submissions of counsel for the mother and in the course of doing so said:

   “…The Court should only move to depart from that if there are special circumstances and those special circumstances must be special and not the same as every other person who may wish to come before a court and argue that a child’s needs are not exactly the same way that it may be designated by the Child Support Act. Is that in essence what you are saying?”

5. Counsel for the mother confirmed that it was, and then went on to make two further points.  Following these submissions, the learned Magistrate said:

   “I’ll just deal with the preliminary point because I propose to actually reserve on that preliminary point and deliver it later and then I’ll allocate it for hearing if I consider that the threshold or the test in … of special circumstances has been met.  I think that’s an appropriate way to deal with it.  I’ve got a plethora of material here…”

6. The learned Federal Magistrate then informed the father that she had read his written submissions and invited him to address her orally on points not contained in those submissions or in reply to Ms Cassidy.  The father then addressed her Honour.  During those submissions her Honour said to the father:

   “…Now, the difficulty with your submission is that if that were accepted by the court every single couple, who ever went before the Child Support Assessment – through the child support assessment process would negate the entire intent of the legislature and that is clearly what Gyselman & Gyselman says should not happen, what a departure application is not about and it was not the intention of the legislature.…”

7. Later, the learned Magistrate again returned to asking the father why his case was “special” in terms of section 117 of the Assessment Act.  He replied:

   “The only thing I could say is that … the thing that’s special in our particular circumstances and the age of the child and the fact that the age of the child isn’t taken into consideration.”

8. The father completed his submissions.  Ms Cassidy made a short reply on a point of law and the Magistrate then indicated that she would reserve for a short period of time, deliver her reasons extempore and:

   “…if I determine that there are special circumstances I’ll allocate it for a further date on a Tuesday so we can just complete the matter.”

Proposed grounds of appeal

1. The grounds as described in the written submissions of the father do not match directly with the grounds in his Amended proposed Notice of Appeal.  This seems to be because, in the latter document, the first 3 grounds are general in nature and grounds 4 to 11 more specific.  In his written submissions the father addresses the specific grounds, so it is those to which I refer.

2. In his summary of argument, the father included some comments under the heading “Preliminary Submission” which related to whether or not the amount of child support which the father contended he should pay impacted on the taxpayer or not, the use which could be made of guidelines such as set out in Gyselman; the question of splitting a hearing into a threshold step and following steps; and the applicability of what was said in Gyselman to stage 1 applications.  Insofar as any of these matters are pertinent to the proposed grounds of appeal, they are repeated in the father’s submissions in respect of the particular grounds and I have considered them in the discussion of those submissions.

3. Before embarking on a discussion of individual proposed grounds, I set out from his written submissions both before the learned Magistrate and before me passages confirming that the basis of the father’s case, as advised on 28 April 2003 was that under section 117(2)(c)(i) an unjust and inequitable result had arisen because the proper needs of the child were, in reliance on the BSU, less than assessed.

Father’s submissions before Magistrate

1. Having quoted a passage from Gysleman and Gysleman (1991) 1 Fam LR 219, the father wrote:

   “1.5.3 In my submission, these words clarify that s117(2)(c) matters are to be treated differently in this three step process to those under (2)(a) and (2)(b) for two reasons, which I will argue herebelow, conceding that the invitation by Kay J in Savery is not a full green light to pass the threshold.”

2. Later, he wrote:

   “2.2.1      I am seeking relief from an administrative assessment based on the ground provided by:

   117(2) for the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:

   […]

   (c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of:

   (i)  the income, earning capacity, property and financial resources of either parent or the child; or

   2.2.2I have already dealt with the rationale behind this ground in Part 1. The gravamen of the argument is that s 117(2)(c) invites the parties to make application to enjoin in a specific test procedure to determine whether the circumstances of their respective incomes (whatever they might be), inter alia, result in the amount of child support as determined under an administrative assessment being unjust and inequitable and thereby constituting special circumstances which set the circumstances apart from the normal circumstances that the administrative assessment might have provided a just and equitable result.”

3. A reader of only paragraphs 2.2.1 and 2.2.2 might think that they related only to the father’s claim (now abandoned) that the mother’s income-earning capacity should have been brought to account, but any doubt that the father intended his claim in relation to the child’s needs to also come within section 117(2)(c)(i) is dispelled by the submissions made before me.

Father’s submissions before me

“AMENDED REASONS WHY LEAVE SHOULD BE GRANTED

1.   I seek to argue that the stage 2 formula is arbitrary and prospective and if it can be proved “in my special circumstances the formula doesn’t work” because the assessment is too low (as in the case of Best and Best) or too high as in this case, then it should be departed from using the correct approach established in Mee and Ferguson.

2.   Additionally, I seek to argue that the current administrative assessment is significantly “unjust and inequitable” in the special circumstances of this case ]as defined by s117(2)(c)(i)]. This unjust and inequitable assessment considerably exceeds our son’s total costs (proper needs), let alone a just and equitable apportionment of these costs. This is, in my submission, obviously a manifestly unjust and inequitable situation that should be departed from.

3.   The “Relevant Law” enclosed in learned Federal Magistrate Rimmer’s reasons for judgment contained considerable errors regarding the subsections of s117 of the CSAAct, effectively “writing out” s117(2)(c)(i) of the Act and therefore severely damaging my case, which was based primarily on s117(2)(c)(i) of the Act.

4.   …

5.   The case I have submitted has raised important questions of law, through original argument, regarding the direct interpretation of s117(2)(c)(i) which ought to be considered on appeal..  Therefore, there is significant public interest involved, particularly in relation to where the assessment exceeds the childs total costs.”

Proposed ground 1

1. The first proposed ground referred to is that the trial Judge erred as to law in her description of the legislation under which the father had framed his argument before her.

2. At paragraph 38 of her reasons, the learned Magistrate purports to quote the lengthy provisions of section 117(2) of the Act. The transcription is inaccurate in several respects, but that which in particular has attracted the attention of the father is that there is no section 117(2)(c)(i), the very provision upon which he relies, nominated. However, the content of that provision is there, though inaccurately arranged and appearing as section 117(2)(B)(i)d(ii).

3. However, in my view, a reading of her Honour’s reasons makes it clear that the inaccuracy of the transcription into the reasons of the terms of section 117(2) in no way caused her Honour to misapprehend the law. The error is none other than typographical. Her Honour specifically refers to the correct provision in paragraph 63 of her reasons.

Proposed ground 2

1. The second proposed ground of the father alleges a failure to give reasons for the dismissal of his argument based on section 117(2)(c)(i) of the Act. The father himself submits that this ground follows closely upon the previous ground and the argument essentially seems to be that since the trial Judge failed to correctly refer to section 117(2)(c)(i) when she purported to quote the subsection, this goes a significant way to show that there has been a failure of reasons to deal with the father’s argument based on the ground. The submission of course ignores the subsequent reference to section 117(2)(c)(i) later in the reasons as pointed out above. Moreover, it ignores significant passages in the reasons where the father’s argument based upon the paragraph is accurately recognised.

2. These passages are:

   “75.  In summary what the applicant in this application seeks to do is to say to the Court that it should look at what it really costs to financially support [C], and it should do so taking into account the published research in the BSU study and not the research which have resulted in the Lee or Lovering Tables for the cost of maintaining children.

   76.    He submits that if when the Court undertakes this exercise it finds that the amount as assessed by the child support agency for him to pay as support for [C] and the reasonable needs claimed by the respondent are found to be excessive, then this fact of itself, should constitute a special circumstance, even though it does not fall within the precise provisions of s.117(2). He says that this is so because to do otherwise would be unjust and inequitable to him, the liable parent and not it would not be otherwise proper that he pay more than the reasonable needs of [C] by way of child support. He says then that that such findings should be found then to constitute a special circumstance and he should be found to have established a ground under s.117(2).

   77.    The Act, by s.117(2), limits the circumstances in which the Court can find that a special circumstance of the case exists to enable a ground of departure to be established.  With respect to the needs and expenses of the child that is very clearly limited by the provisions of .s.117(2) subsections (b)(A), (B) and (C). 

   78.    Those sub-sections  relate to the high cost involved in enabling a parent to have contact with the child, the special needs of the child or because a child is cared for, educated or trained in the manner that was expected by his or her parents and that is further limited then by s.117(3) where the Court is fettered in whether or not to determine that the high costs of contact constitute a special circumstance by a limitation that the total of those costs during the child support year must be more than five per cent of the child support income for the year in relation to the parent concerned.

   79.    In summary, the Federal Government of Australia has set out a system of child support assessment which meets the object of that Act.  That is, that it will provide to the parties a formula for calculating child support payable by parents and that it will do so to ensure, where possible, an equitable share of the resources and the income and property interests of parties, taking into account their responsibility to support themselves and also their necessary commitments for others they have a duty to maintain.  That thereafter it will be easily ascertainable for both of the parties and those separating parents in Australia to be able to have determined issues of child support without resort to Court proceedings.

   80.    If the Court were to accept the argument put by the applicant in this case that the Court should review the necessary weekly needs of the child [C] in circumstances where he is a normal two year old child living with two parents who both are to be considered within the range of middle income earning parents then that would be to open the flood gates for every family in Australia who has separated and require the determination of their child support liability.

   81. It would be open to every parent to say that their child is different and therefore their needs are unique. It is axiomatic that every child in Australia has some different financial needs as all children are different and unique. What is set down by the child support legislation specifically enacted in the principles set out in s.117(2) and the decision of the Full Court in Gyselman (supra) is that the person who seeks to depart from the normal assessment processes in the Child Support Assessment Act, which covers most separating parents in Australia and children of them, must firstly demonstrate that there are special circumstances that they are able to establish one of the grounds that are set out in s.117(2).

   82.    S.117(2) does not permit the Court to find it is a special circumstance that an ordinary average child such as [C] should have his needs microscopically examined outside the norm simply because the father wishes that to be the case. If a proper ground is established under s.117(2) of the Act, then the Court will examine the question of whether a particular assessment is just and equitable and that will involve an examination of the child’s proper needs and the parents capacity to each contribute to such needs. I reiterate this only becomes available to separating parents if they establish a ground under s.117(2) of the Act. In a general run of things, the needs of a child such as [C] should not be permitted to be microscopically examined.

   Conclusion

   83. I am satisfied therefore that in applying the objects and principles of the Act, the provisions of the Act applicable to a departure application and the decisions of the Full Court of the Family Court whose reasons bind me in an application for departure of a child support assessment, that the applicant in this application has not demonstrated that there is a ground pursuant to s117(2) of the Child Support Assessment Act 1989 (as amended) which he falls within to permit the departure.”

Proposed Ground 3

1. This ground reads:

   “It is submitted that the trial Judge erred as to law in her decision to hear the matter only to the threshold.”

2. Paragraphs 7, 8 and 9 of the learned Magistrate’s reasons are as follows:

   “7.    The respondent argued that in order to limit the costs of both parties but particularly her costs, given she was instructing counsel and the application was self-represented, that she should be permitted to argue whether one of the grounds under s.117(2) is established by the applicant to permit a consideration of the departure prior to a full hearing involving the cross-examination of the parties being embarked upon with respect to the other elements of s.117(4) and (5).  The effect of the finding by the Court that he did not establish a ground she argues, means the applicant cannot succeed and the departure application must fail. 

   8.     After reviewing the lengthy material of the applicant which includes two separate sets of written submissions which he annexed both to a form 63 and one of his affidavits filed in the proceedings, together with the material of the respondent, I gave leave for this course to be adopted. 

   9.     I will therefore determine the preliminary issue as to whether or not the applicant has established that there is a ground for departure under s.117(2) of the Act before embarking on a full hearing with respect to other matters contained in ss.117(4) and (5).”

3. While it seemed to me upon a reading of the transcript that there may have been a concern that the father had not been given appropriate opportunity to make submissions about the form that the hearing took, his submissions are not on the basis that he was denied a fair hearing or an opportunity to put all that he wished to put.  In any event, such concerns as might have arisen in this regard seem to be met by the circumstance that there is no indication at all that the father took any exception to the manner of proceeding, which amounted to a hearing on the material put forward by the parties, as to the first step of a 3 step process, which (as seen from the following proposed ground) the father acknowledges needed to be applied.  Rather, the argument of the father was that the process followed by the learned Magistrate led her into misunderstanding his submissions and/or misapplying the law.

4. It is of particular relevance in addressing whether the procedure followed caused the father any injustice (even though this is not what he asserts) to recognise that the father did not argue that there needed to be an examination of C’s actual needs.  Rather his argument was that the BSU showed the formula produced too high an assessment.

5. Having regard to paragraphs 75 to 83 earlier quoted which, as I have already stated, in my view show that the argument of the father was understood and for reasons given, rejected, if follows that the process adopted did not lead the learned Magistrate into error.

Proposed Ground 4

“It is submitted that the trial Judge erred as to fact and law in determining that my case sought to depart from the Gyselman three step process.”

1. This ground attacks paragraph 64 of the reasons which reads:

   “64.  The second ground which he relies upon is that in fact the Court does not have to follow the strict three step process set out in Gyselman (supra) and established (sic) in the first instance whether there is one or more grounds for departure in s.117(2) established (sic) to create special circumstances for a departure from child support.

2. The father argues before me that in no way did his submissions to her Honour seek to depart from Gyselman. Whether or not his submission did depends upon whether or not his primary submission is accepted, namely that one can examine the needs of the child in deciding whether a ground to departure exists pursuant to section 117(2)(c)(i). If the father’s argument is correct, then he would not be suggesting departure from Gyselman. If however, his argument is wrong, then a consideration of the child’s needs at the stage of determining a ground for departure relying on section 117(2)(c)(i) would be to advance out of turn a consideration of the matters made relevant by subparagraph 4 of section 117. In that sense, the father’s case could constitute a departure from the three step process. It seems to me plain that it was in that sense that the Magistrate was speaking.

Proposed Ground 5

“It is submitted that the trial Judge erred as to fact in determining that my case claimed that W v. W [2002] fam 466 (sic) watered down the Gyselman three step process.”

1. This ground attacks section 65 of the Magistrate’s reasons which are:

   “65.  It is the husband's argument in his very lengthy written submissions to the Court that such a position has been watered down by a decision of the Federal Magistrate in W v W [2002] fam 466 and by other decisions he has referred to, such as Savery and Savery (1990) FLC 92-131.

2. The father points out that in fact his submission was:

   “1.2.2Therefore I am submitting that the W & W and M case now combines the Gyselman etc guidelines and the BSU survey into the one case, substantially short cutting the more laborious submission in paragraphs 1.3 to 1.8 (but which I will include for completeness).”

3. The father submits that his term “short cutting” clearly referred to the submissions and not to the process of determination of a departure application.

4. In my view, though the paragraph refers to “short cutting” submissions, it also says:

   “the W & W and M case now combines the Gyselman, etc guidelines and the BSU survey into the one case…”

   and this may well provide a foundation for the learned Magistrate’s comment under challenge.

5. Moreover, as noted earlier, the father himself had submitted that, in some way, the three step process was applied differently in applications relying on section 117(2)(c) as against in applications relying on other grounds. That submission is repeated here:

   “1.5.3 In my submission, these words clarify that s117(2)(c) matters are to be treated differently in this three step process to those under (2)(a) and (2)(b) for two reasons, which I will argue herebelow, conceding that the invitation by Kay J in Savery is not a full green light to pass the threshold.”

6. It is noted that in paragraph 65 of her reasons, the learned Magistrate took up the father’s reference to Savery.

7. In any event, even if it be that the learned Magistrate misunderstood the thrust of the father’s submissions, that may well not constitute an appellable error, because all such an error might constitute would be a failure to appreciate that the father suggested that his argument could be approached in a shorter, rather than a longer way.

8. The real consideration is whether or not in considering the arguments of the father, whether the shorter or the longer version, the learned Magistrate fell into error.

9. In my view the decision in W & W and M is not authority for the basic proposition of the father, namely that the BSU tables showed that the formula used to arrive at the administrative assessment was less than the needs of a child (perhaps the child) and therefore, without more, a ground for departure had been established under section 117(2)(c)(i). It seems to me that the Federal Magistrate in W & W and M accepted that the administrative assessment was erroneous because the assessment had been calculated as if both children of the payee lived with the one mother, when that was not the case.

10. Alternatively, if the decision in W & W and M is to the effect apparently contended for by the father, I would not agree with it.

Proposed Ground 6

1. This ground reads:

   “6.    It is submitted that the trial Judge erred as to law in asserting that “the proper approach” can be bypassed in an undefended hearing that my case sought to depart from the Gyselman three step process.”

2. This ground attacks paragraph 73 of the Magistrate’s reasons which are:

   “73.  I find that I should be persuaded by a decision of a single Federal Magistrate such as in W v W (supra). This was a case where the application was undefended and therefore necessarily arguments were not put to the Court that would have been put if there was a respondent before the Court about the proper approach for the court to take in the matter. It is also important to note that it was a matter in which the applicant was unrepresented and the reasons for judgment given were truncated as a result of that fact. Such a decision does not in any way impinge upon the statement of the law made by the Full Court of the Family Court, whose reasoning and stated principles bind me in a departure application such as this is.”

3. It seems to me obvious that the word “not” is missing after the word “should” in the first line of the passage of the paragraph.

4. In any event, in support of this proposed ground, the father submits that a Judge is required to exercise discretion and make decisions according to legislation, case law and jurisdiction, even if the matter is undefended.  I see nothing in the paragraph of the Magistrate’s reasons or in any other part of her reasons which says anything to the contrary.

5. It follows from what I have said in respect of proposed ground 5 that I do not consider that the learned Magistrate’s treatment of the decision in W & W and M was wrong.

Proposed Ground 7

1. This ground reads:

   “7.    It is submitted that the trial Judge erred as to law and discretion in asserting that ‘the flood gates would open’ if she accepted my ground for departure.’

2. This ground refers to what the learned Magistrate says in paragraph 80:

   “80.  If the Court were to accept the argument put by the applicant in this case that the Court should review the necessary weekly needs of the child [C] in circumstances where he is a normal two year old child living with two parents who both are to be considered within the range of middle income earning parents then that would be to open the flood gates for every family in Australia who has separated and require the determination of their child support liability.”

3. In my view it is apparent from reading paragraph 80 in context that it is not part of the process of reasoning of the Magistrate in reaching her basic conclusion but is an observation at the most.  The bases upon which the father attacks the comment are that he asserts that as a matter of fact the “flood gates” will not open.  This was not a question of fact before the Federal Magistrate nor is it a question with which this court can deal.  Secondly, the father attacks the comment on the basis that as a matter of law it is wrong, because even if the “first step” (in departure cases) is established, “steps two and three” of the process provided a check.  In my view, this is merely a comment upon a comment and not a matter of law at all.

Proposed Ground 8

1. This ground reads:

   “8.    It is submitted that the trial Judge erred as to law in asserting that the formula alone is the test of the Objects of the CSAA Act.”

2. This ground attacks what is said in paragraph 79 of the judgment which is as follows:

   “79.  In summary, the Federal Government of Australia has set out a system of child support assessment which meets the object of that Act.  That is, that it will provide to the parties a formula for calculating child support payable by parents and that it will do so to ensure, where possible, an equitable share of the resources and the income and property interests of parties, taking into account their responsibility to support themselves and also their necessary commitments for others they have a duty to maintain.  That thereafter it will be easily ascertainable for both of the parties and those separating parents in Australia to be able to have determined issues of child support without resort to Court proceedings.”

3. The submissions of the father in 4.9.3 make it clear that he misunderstands the timing of the use of the formula to which the Federal Magistrate was referring.  It is clear that she was referring to the principle of the Act that as a starting point child support be assessed according to a formula.  This is quite different from what the father apparently takes the reference to mean, namely the use of the formula to determine the “proper needs of the child” after a ground for departure has been made out, in the special circumstances of a particular case.

Additional submissions

1. Finally, by way of additional submissions the father indicated that he wished to argue that the learned Magistrate had erred by failing to pay regard to the decision of the agency officer reviewing the objection by the father to a previous determination.  In particular, the father relied upon a passage from Johnson & Johnson (1998) FamCA 1519 where in their joint judgment, Chief Justice Nicholson and Justice Moore said:

   “85.         We agree with Kay J that the Act does not provide for a review or appeal from the decision of the reviewing officer as effected by the Child Support Registrar.  However, we do not think that it makes sense to treat such reasoning as irrelevant.  The fact that it is obvious flawed may give substance to a proposition that there are special circumstances requiring a departure order to be made under s. 117.  On the other hand it may provide sound reasons why a departure order should not be made.  While it is true that it is the decision and not the reasoning that led to it that is under consideration, we do not think it reasonable to pay no regard whatsoever to such reasoning.”

2. In her judgment, the learned Magistrate said:

   “15.  It is the applicant's case that the objection officer, Mr Chris Scott, did not identify the senior case officer's procedural error and in fact attempted to justify the decision by applying some internal Child Support Agency principles in an attempt to override legislation and case law.  It is not necessary for me to consider those matters as this is a departure application.”

3. It may be that in Johnson & Johnson the Chief Justice and Justice Moore were saying no more than that the reasons of a reviewing officer ought not be regarded as irrelevant and might obviously provide some assistance by pointing to issues in the case and thereby assist the resolution of that case.  It cannot be, in my view, that their Honours were purporting to lay down a rule that in every case on a departure application the court must consider the reasons of any reviewing officer for a preceding decision.  In this case the learned Magistrate was aware of the assertions by the father as to the basis of the case officer’s decision.  She was aware of the particular arguments propounded by the father, which were questions of law not fact, and determined that in the circumstances it was not necessary for her to consider the reasons of the case officer.  I am not persuaded that there is any error in that approach.

Principles applicable to application for leave to appeal – child support

1. The principles to be applied in determining whether or not to grant leave to appeal from a single Judge of the Family Court exercising jurisdiction under the Child Support (Assessment) Act 1989 as amended were considered by the Full Court of this court in Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641 at 648-9. The court considered a number of cases, in particular the High Court decision in Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc.(1981) 149 CLR 170, dealing with applications for leave to appeal from interlocutory orders. The Court also considered the decision of the Full Court of the Family Court in Wild v Ballard (1997) FLC 92‑771, where the Full Court said at FLC 84,488 (citations omitted):

   “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 Gilmore & Gilmore the Full Court (Ellis, Finn and Maxwell JJ) endorsed suggestions made in both Bassingthwaite v Lean and Best & Best 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.”

2. The Full Court in Hendy continued:

   “44.  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.”

3. I adopt the approach described by the Full Court in Hendy’s case.

Discussion and conclusions

1. If the father wished to seek a departure from administrative assessment based on the reduced needs of C, he possibly might have made an application relying on section 117(2)(b)(i)(B). This provision might accommodate the possible argument referred to by Kay J in Savery & Savery (supra). It may be that that is what the father intended to argue but he has not done so. Instead he has stressed, on more than one occasion, both before the learned Magistrate and me that his argument rested on section 117(2)(c)(i). As stated, his argument was that the BSU established “needs” of any child, including C, which were less than those struck according to the formula used to produce the administrative assessment and that therefore, his was a case of special circumstances and a ground for departure had been made out. For the reasons given, that argument is misconceived. Accordingly, in my view, no substantive right of the father has been affected by any error of principle made by the learned Magistrate. In my view no error in principle was made by the learned Magistrate. I therefore refuse the application for leave to appeal.

Costs

1. At the conclusion of submissions, I heard argument on the issue of costs, depending on the outcome of the application.  The mother seeks her costs in the sum of $4,600.00.  The father submitted that in the event his application failed, each party should bear their own costs.

2. In my view, the mother should have her costs, to be taxed.

ORDERS

1. That the application for leave to appeal filed 16 July 2003 be dismissed.

2. That the father pay the mother’s costs of and incidental to the application for leave to appeal, as agreed and in default of agreement, as taxed.