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

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.
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.
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.
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

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

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.

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Details

Case: [2003] FamCA 1133
Decision Date: 7 November 2003

CaseChat Overview and Summary

The applicant sought leave to appeal from a decision of the Federal Magistrates Court concerning a child support departure application. The dispute centred on whether the applicant had established "special circumstances" under the *Child Support (Assessment) Act 1989* (Cth) to justify a departure from the standard child support assessment formula. The applicant argued that if the standard assessment resulted in a sum exceeding the child's needs, as determined by specific research, this fact alone should constitute special circumstances, even if it did not precisely fit the statutory grounds.

The court was required to determine whether the applicant's argument that a child support assessment exceeding the child's needs, based on alternative research, constituted "special circumstances" under section 117(2) of the Act. Specifically, the court had to consider if this interpretation of "special circumstances" was permissible under the legislative framework and relevant case law, or if it fell outside the prescribed grounds for departure.

Justice Warnick reasoned that the *Child Support (Assessment) Act 1989* provides a comprehensive scheme for child support assessment, aiming for equitable sharing of resources and ease of ascertainment without resort to court proceedings. Section 117(2) strictly limits the grounds upon which a departure from the standard assessment can be made, including specific provisions for the child's needs, contact costs, and special needs. The court found that the applicant's submission that a discrepancy between the assessed amount and the child's needs, based on external research, constituted special circumstances was a misconception of the Act. To allow such an argument would, in the court's view, "open the flood gates" to every separated parent seeking to have their child's needs microscopically examined outside the established framework. The court reiterated that a ground under section 117(2) must first be established before the court can examine the justice and equity of an assessment, including the child's proper needs and parental capacity.

The application for leave to appeal was dismissed, and the applicant was ordered to pay the mother's costs of and incidental to the application.

Orders

Orders of the court

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

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

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.Conclusion83. 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.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.