Saberton & Saberton
[2013] FamCAFC 89
•7 June 2013
FAMILY COURT OF AUSTRALIA
| SABERTON & SABERTON | [2013] FamCAFC 89 |
| FAMILY LAW – APPEAL – JURISDICTION – Whether a court in the exercise of original jurisdiction has jurisdiction under s 116 of the Child Support (Assessment) Act 1989 (Cth) to determine a remitted application – Where the finalisation of all other aspects of the proceedings meant there was no longer an “application pending in a court having jurisdiction under this Act” to satisfy the provisions of s 116 – Held that jurisdiction to make orders pursuant to s 116 of the Assessment Act continues from when the order is made until completion of the judicial process. FAMILY LAW – APPEAL – CHILD SUPPORT ORDERS – Whether it was just and equitable to make a departure order from an administrative assessment with reference to s 117 of the Assessment Act – Where there were no findings made as to matters to which the court must be satisfied before making an order – APPEAL ALLOWED - Order set aside and the matter remitted for rehearing. |
| Child Support (Assessment) Act 1989 (Cth): s 116, 117, 121, 122, 123, 124 |
| Gyselman & Gyselman (1992) FLC 92-279 Wilde & Ballard (1997) FLC 92-771 |
| APPELLANT: | Ms Saberton |
| RESPONDENT: | Mr Saberton |
| FILE NUMBER: | SYC | 6689 | of | 2010 |
| APPEAL NUMBER: | EA | 115 | of | 2012 |
DATE DELIVERED: | 7 June 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan, Murphy & Loughnan JJ |
| HEARING DATE: | 22 March 2013 and by way of written submissions received by both parties on 3 April 2013 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 August 2012 |
| LOWER COURT MNC: | [2012] FamCA 870 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Lethbridge SC |
| SOLICITOR FOR THE APPELLANT: | Robyn Sexton & Associates |
| FOR THE RESPONDENT: | Mr Saberton in Person |
Orders
That the application for leave to appeal Order 13 of the orders made by the Honourable Justice Cleary on 10 August 2012 be allowed.
That the appeal be allowed.
That Order 13 of the orders made by the Honourable Justice Cleary on 10 August 2012 be set aside.
That the competing applications for the parties for departure orders under the Child Support Assessment Act 1989 (Cth) be remitted for hearing by a judge other than the Honourable Justice Cleary.
That the application to adduce further evidence in support of the appeal be dismissed.
That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.
The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
Certify for counsel.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Saberton & Saberton has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 115 of 2012
File Number: SYC 6689 of 2010
| Ms Saberton |
Appellant
And
| Mr Saberton |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Ms Saberton (“the wife”) against orders made by Cleary J on 10 August 2012. The wife appeals against property settlement orders as well as seeking leave to appeal against child support departure orders, and if granted, appeals against those orders. Mr Saberton (“the husband”) is the respondent to the appeal.
In relation to property settlement, the trial judge ordered the sale of the family home at G (“the family home”) and set out the manner of distribution of the sale proceeds. The proceeds were to be applied to a series of loans advanced by the National Australia Bank secured against the family home which her Honour capped at $1.9 million. The National Australia Bank was not a party to the proceedings and it was not within her Honour’s power to alter the bank’s right to recover the entire amount for which the family home was security.
Although it was agreed that the family home was worth $2.3 million, because of the inevitable uncertainty about whether it would sell for the agreed value, the orders provided a mechanism whereby if the property sold for less than the agreed value, the husband was required to pay an adjusting amount. The effect of this was that the wife would receive at least $206,575.00. In addition, within three months of the date of settlement, by way of property settlement the husband was ordered to pay the wife an additional $66,949.00. He was also ordered to transfer to the wife his interest in a family company of no value. A superannuation splitting order was made, the effect of which was that the wife received the entirety of the parties’ superannuation worth approximately $260,000.00. Essentially, the husband, who is a senior professional, remained personally liable for various debts and retained his business and the right to recover outstanding fees.
The wife secured an order for the payment of spousal maintenance in the sum of $863.00 per week, which upon the sale of the family home, would increase to $1,613.00 per week. Spousal maintenance was ordered to continue until the youngest of the parties’ three children commenced primary school in 2016.
Finally, in accordance with the husband’s proposed orders, her Honour made a departure order in the following terms:
13.That by way of departure from the Child Support Assessment made on 22 October 2011 the husband shall pay directly to the school, in addition to the Child Support amount assessed from time to time, the school fees and other associated expenses (including but not limited to uniforms; excursions; text books; and extra curricular activities as agreed between the parents) at [H] College or such other school as the parties agree on for each of the three children to the conclusion of their secondary education.
Although in her Amended Notice of Appeal filed 21 September 2012 the wife appealed all of her Honour’s orders, before us, counsel for the wife clarified that the appeal was only pressed in relation to Orders 2, 3, 6 and 13. Namely, those orders that dealt with the distribution of the sale proceeds of the family home, the adjusting amount payable by the husband, a lease secured on a motor vehicle retained by the wife and child support.
On 20 March 2013, the wife filed an Application in an Appeal in which she sought leave to adduce further evidence in the appeal in accordance with her affidavit filed the same day. As events transpired, the appeal against the property settlement orders resolved by agreement and it became unnecessary to determine the application to adduce further evidence. Nonetheless, by apparent agreement, a number of factual matters were placed before us.
Firstly, it is common ground that on 6 December 2012, on his petition, the husband became bankrupt. Secondly, as a result of the non-payment of the National Australia Bank mortgage (the wife’s application for an order that would continue an earlier order that the husband pays the mortgage was not made by her Honour), enforcement proceedings were commenced by the Bank. Thirdly, although the family home has been listed for sale, the highest offer achieved is $2.02 million. With the debt due to the National Australia Bank now standing at about $2.29 million (and rising) an issue has arisen between the parties and the bank about the potential shortfall as a consequence of which the wife (who is the sole registered proprietor) has been unable to exchange contracts. When the family home does sell it is almost certain that the secured liabilities will exceed its selling price and doubtful that the husband (whose bankruptcy will not produce a surplus) will make the adjusting payment any time soon.
It is against this background that the parties compromised the wife’s appeal against the property settlement orders. Simply put, on 22 March 2013, by consent, the wife’s appeal against Orders 2, 3 and 6 was withdrawn and dismissed. In relation to Order 6, the parties agreed that the order did not reflect her Honour’s reasons and, albeit in the exercise of the Court’s original jurisdiction, Order 6 was rectified.
Thus, the only remaining element of the wife’s appeal concerned child support. As has been referred to, her Honour ordered that the husband pay the children’s school fees and associated expenses in relation to their attendance at H College “or such other school as the parties agree on”. None of the parties’ three children attend H College and it is uncertain whether they ever will. Before her Honour, it was common ground that the children attended the K School in Sydney in relation to which interim orders made on 11 March 2011 and
8 August 2011 required that the husband pay the children’s school fees up to and including 8 August 2011 and 2012 enrolment fees. It follows that the effect of her Honour’s orders is that unless the wife and children move to the South Coast of New South Wales, which her Honour understood was a possibility if not a probability, the child support order does not require the husband to contribute to the children’s education expenses. So that it is clear, absent agreement between the parties as to where the children attend school, her Honour’s orders require that the children attend H College if the husband is to meet their school and allied expenses.
Although it would not have been a complete answer to the wife’s child support appeal, the husband informed us he was unwilling to agree to vary the child support order so as to delete reference to the named school in favour of K School (but limited to equivalent expenses as those applicable to H College). Given that his stance before her Honour was that he would pay the children’s fees and expenses for H College, his stance before us was somewhat regrettable.
Thus, the wife’s application for leave to appeal against the child support order and, if granted, her child support appeal remained alive. However, before that issue could be finalised, counsel for the wife sought the opportunity to provide written submissions as to the form of order she sought in relation to the appeal. The problem counsel sought to address was whether, if the wife’s appeal was allowed and the child support order set aside, a court in the exercise of original jurisdiction had jurisdiction under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) to determine her remitted application. As is not in doubt, before an application for a departure order of the type sought by the wife can be made, the steps referred to in s 116(1)(a), (aa), (ab) or (c) of the Assessment Act must be complied with, or, having been satisfied that the provisions of s 116(1)(b) are met, a Court exercising jurisdiction under the Assessment Act may permit the application to proceed.
Section 116(1)(b) is as follows:
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
…
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case …
Because none of the other provisions referred to in s 116(1) were met,
her Honour took jurisdiction pursuant to s 116(1)(b). With the finalisation of all other aspects of the proceedings, this meant there was no longer “an application pending in a court having jurisdiction under this Act” and thus counsel for the wife was concerned about whether the wife would need to complete those procedures required by ss 116(1)(a), (aa), (ab) or (c) of the Assessment Act before her application could be considered by a court.
Pursuant to directions we made on 22 March 2013, written submissions were received from counsel for the wife on 3 April 2013. Written submissions were received from the husband, in two parts, the same day. Sensibly, it was agreed that notwithstanding that they were late, we could receive them.
In counsel for the wife’s submission, we are asked to remit the wife’s application for child support for rehearing by a single judge. In relation to jurisdiction, it is submitted that the Court’s jurisdiction to make orders pursuant to s 116 of the Assessment Act arises at the commencement of the proceedings and is not exhausted until completion of the judicial process. In other words, because her Honour assumed jurisdiction pursuant to s 116(1)(b) of the Assessment Act at a time when there was a relevant application pending, until final orders are made in the child support proceedings, jurisdiction is not lost merely because the pending application has been finalised.
Although in his submissions the husband argues that the wife’s application should be dismissed, he does not cavil with counsel for the wife’s submission as to jurisdiction.
We agree with the submissions on this point made by counsel for the wife. It follows that notwithstanding “final” child support orders were made by
her Honour, the parties’ child support applications remain alive until the appeal process and any rehearing has been finalised. It is only when the ultimate process is completed that jurisdiction taken pursuant to s 116(1)(b) of the Assessment Act will be exhausted.
It follows that the wife’s application for leave to appeal and, if leave is given, the appeal must now be determined.
Background facts
So as to provide some context to the issue, brief reference to largely uncontentious matters is required. Unless stated differently, these matters are drawn from her Honour’s reasons.
The husband was born in 1964.
The wife was born in 1970.
The parties were married in April 2001 and separated in July 2010. They lived together for a little over nine years and are now divorced.
The husband has repartnered and he and his partner have a young child.
The parties have three children: B who was born in 2003, T who was born in 2005 and J who was born in 2007.
Since separation the children have resided with the wife and spend time with the husband. The wife, who is a professional, is not presently in paid employment albeit she has expressed a view that she will return to the workforce at some time in the future.
On 22 October 2010, a Child Support Assessment issued for the period 19 October 2010 to 18 January 2012. The husband’s child support income was assessed at $641,382.00 and the wife’s at nil. The effect of the assessment was that the husband was liable to pay child support at the rate of $676.77 per week.
On 22 October 2010, the wife filed an Initiating Application which included an application for urgent spouse maintenance and child support. By consent and without admissions, orders were made in relation to that urgent application as follows:
1.That the husband pay to the wife the sum of $20,000, made up as follows:
(a)$5,000 on 17 December 2010;
(b)$5,000 on 13 January 2011;
(c)$10,000 on 27 January 2011;
and such sums to include any liability in relation to child support up to and including 18 February 2011.
2.That the husband pay the registration on the wife’s motor vehicle as and when same falls due.
…
Further orders were made on 11 March 2011 as set out below:
Urgent spousal maintenance orders
1.That until 9 September 2011 or further order the husband promptly pay the following expenses as and when they fall due:
(a)Mortgage instalments in respect of the property situate at and known as [Property at G, matrimonial home];
(b)All periodic and other payments pursuant to all loans made to him and/or the parties by the National Australia Bank including but not limited to “the [S] loan”; the accelerator loan; and the business loan.
(c)The husband’s income protection life insurance and the family’s current health insurance premiums.
(d)The householders and contents insurance premiums in respect of the former matrimonial home;
(e)Motor vehicle registration insurance both compulsory and comprehensive and lease payments in relation to the motor vehicle registration number …;
(f)Water and council rates in respect of the former matrimonial home.
2.That the husband pay to the wife by way of urgent spousal maintenance the sum of $863 per week by payment into such bank account as she may in writing direct until 9 September 2011 or further order, the first payment to be paid on or before 4.00 pm
18 March 2011.Child Support Departure Order:
3.That the husband promptly pay as and when due and payable, the [W School] (sic) Term 1 fees and related educational expenses and uniforms for each of the three children of the marriage.
4.That all other outstanding applications for urgent spousal maintenance and child support assessment departure are dismissed.
On 24 March 2011, the husband wrote to the K School. In accordance with his obligation pursuant to Order 3 of the orders dated
11 March 2011, the husband confirmed he would pay the children’s school fees for Term 1 2011. He went on to explain that the children attended that school at the wife’s behest and over his opposition. His letter concluded “[i]f despite my opposition, my wife chooses to take [the children] to [the School] past the end of Term 1 this year, you cannot look to me for payment of any fees”.
Further interim orders were made by consent on 8 August 2011. Relevantly, it was agreed:
7.That as and from the date of the settlement of the sale of the home:
7.1the husband shall continue to pay the sum of $676 per week for child support ordered by Justice Rose on 11 March 2011 pending further order; and
7.2the husband shall increase the payment of spouse maintenance to the wife to $2,324 per week pending further order.
8.That the husband pay the arrears of school fees for the children as soon as is reasonably practicable.
9.That the husband pay the enrolment fees for the children’s schools in 2012 upon receipt of a tax invoice but not any tuition fees without agreement between the parties in writing.
In relation to the children’s school fees, the orders required that the husband, in effect, pay the children’s school fees at the K School up to and including
11 March 2011 and enrolment fees for 2012. We infer that the above departure order was registered with the Child Support Agency and that an administrative assessment issued in accordance with the order for the period 18 January 2012 to 18 October 2012. Her Honour records that for the assessment period 19 October 2012 [sic] to 18 January 2012 an administrative assessment issued which required the husband to pay $676.77 per week; that being the amount reflected in the consent departure order.
In the wife’s Amended Initiating Application filed 9 November, she applied for periodic child support in the amount of $3,000.00 per week. The child support orders she sought are set out below:
16.That pursuant to sections 116 and 117 of the Child Support (Assessment Act) the Child Support Assessment for [the children] be varied such that the husband pay to the wife child support in the sum of $3,000 per week, the first such payment to be made within 7 days of the date of this order, such payments to continue until the youngest child attains the age of 18 years or completes secondary school, whichever is the later.
17.That the Child Support to be paid to the wife pursuant to order 16 herein be varied each year on and from 1 November each year, in accordance with the variation of the Consumer Price Index for Sydney, as published by the Commonwealth of Australia Statistician as at 30 September of the year in question.
In relation to the wife’s child support departure application, other than for the payment of private school fees at H College, the husband said her application should be dismissed. A minute of order (Exhibit “H5”) was provided to her Honour which sets out the child support order sought by him as follows:
…
3.That by way of departure from the child support assessment made on …2011 the husband pay the school fees at [H] College for the three children in the case of [B] at the rate of $5,300 per annum, for [T] at the rate of $4,240 per annum and pre-school fees for [J] in 2012 at the rate of $6,400 and thereafter from 2013 at [H] College at the rate of $4,240 per annum.
During closing addresses counsel for the husband informed her Honour that in addition to school fees the husband would pay for the children’s school uniforms, books and the like which he described as being “whatever is billed from the schools.” Her Honour was not given a further minute of order that reflected the husband’s ultimate position.
Before us, it was submitted by counsel for the wife that the wife’s final position before her Honour was that she sought an order that the husband continue to pay fees in relation to the children’s attendance at the K School until completion of the sale of the family home. Then, if the wife relocated, fees for a school which was contemplated to be on the south coast of New South Wales. This would appear to be reference to counsel for the wife’s written submissions dated 2 December 2011. Although counsel for the wife made oral submissions at the end of the hearing, as requested by him,
her Honour agreed to receive further written submissions. These submissions were made after the hearing was completed and without further oral addresses.
In counsel for the wife’s written submissions, the topic of child support was addressed thus:
The Wife’s application for child support departure
3.59Again it is submitted that the Husband conceded that a departure order is needed. That order should be made for school fees at the children’s present schools whilst they reside in Sydney and to meet the costs of the school proposed should they move to the south coast. In addition, it is submitted that the Husband has the capacity to meet an amount for periodic payment significantly greater than the amount available pursuant to the assessment by the Child Support Agency made from time to time.
3.60There was no attack upon the Wife’s assessment of the needs for the children. No cross-examination was directed to any specific expense claimed and it follows that the Court should accept her evidence as to the children’s needs. In that case, it only remains for the Court to be satisfied that the Husband has the capacity to meet those needs as assessed by the Wife.
It can be seen that the wife maintained her application for a departure order and that the total amount sought did not change. Despite the fact that it was not entirely clear whether the wife suggested child support departure orders that would provide for both periodic and non periodic payments, as no further minute of order was provided by the wife, her Honour was correct to proceed on the basis that the orders she sought were as set out in her amended application. In circumstances where shortly before the hearing the husband paid all outstanding school fees, we accept that counsel for the wife’s submission that the departure order should relate to “…school fees at the children’s present schools whilst they reside in Sydney” was intended to ensure that he continued to pay for the children’s attendance at the K School. Because the interim orders made no provision for the payment of school fees and associated expenses pending her Honours determination, we accept that the submissions reveal that the wife sought child support orders from the date of hearing.
Although counsel for the husband provided written submissions in reply dated 7 December 2011, in relation to child support the submissions were silent.
The trial judge’s reasons for decision
As earlier referred to, the hearing before her Honour concerned property settlement, spousal maintenance and child support. In relation to child support, her Honour’s reasons are brief. Having correctly identified that the wife’s application for periodic child support required consideration of ss 116 and 117 of the Assessment Act, reference was then made to the husband’s application for an order that he pays the children’s school fees. To the former, reference was made to Division 4 of the Assessment Act as the guiding provisions. We infer her Honour intended to make reference to Part 7 Division 4 of the Assessment Act. There was no reference by her Honour to the provisions of the Assessment Act which govern the husband’s application, relevantly that his was an application governed by Part 7 Division 5.
In any event, her Honour turned her attention to s 117 of the Assessment Act which sets out the matters of which the Court must be satisfied before making an order for departure from an administrative assessment.
In relation to potential grounds for departure, her Honour focused on s 117(2)(b)(ii) 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;
As to the wife’s financial circumstances, particularly her income, reference was made to the current child support assessment based on the wife having no relevant child support income. At [98], her Honour said “There was very little evidence in the written material on this area”. Having observed at [99] that “The future circumstances of each party are unknown”, her Honour said at [100] that “If the wife moves to the South Coast with the children as she intends, then her accommodation costs and income, if any, are unknown.”
Other than reference at [103] that the wife lacks the capacity to rebuild assets from income, these findings exhaust her Honour’s consideration of the wife’s income, earning capacity and her commitments necessary to enable her to support herself.
Having recorded the husband’s liability to pay spousal maintenance in the amounts referred to earlier in these reasons, her Honour found at [101] that “[the husband] earns a high income and has the capacity to support his wife and children”.
In relation to the husband’s income, this would appear to incorporate into
her Honour’s considerations concerning child support, her finding made in the context of her consideration of the property settlement applications. Namely, her finding made at [65] that “[the husband] has earned gross fees of approximately $1 million per annum for the past three financial years”.
There followed her Honour’s conclusion:
101.…If the children are privately educated, as is likely, the husband should pay the fees together with all the expenses associated with their education. The wife should have the reassurance of the husband meeting those expenses for the entirety of the years of education of all three children.
Reference was then made to the husband’s new partner who is self-employed in a professional field with whom the husband has a young child.
In relation to the husband’s financial circumstances, her Honour summarised the effect of her property settlement orders in relation to which she correctly recorded that he would receive no cash sum and may have to borrow to meet the adjusting payment.
This exhausts her Honour’s findings in relation to the husband’s financial circumstances, his necessary commitments to enable him to support himself and his partner and their baby.
In relation to the wife’s application for a departure order her Honour found:
103… it seems more appropriate for there to be a fresh assessment by the Agency based on the parties’ new financial circumstances rather than a fixed sum at four times the current rate applicable for the next 13 years.
At [104], her Honour declared herself satisfied that it would be just and equitable and otherwise proper to make an order departing from existing child support arrangements.
Finally, as to the form of order, her Honour observed at [105] that the order would provide for departure “to the extent for the husband to supplement the children’s school fees and related expenses. This will allow for the children to continue their education at whatever schools their parents agree on.”
Discussion
If granted leave to appeal, the essence of ground 1 argued by the wife is that her Honour failed to state the relationship between the order and assessed child support. The plain reading of the order demonstrates that this ground is without foundation.
By ground 2, it is alleged that her Honour erred by failing to make any provision for the payment of school fees in the event that the wife and children continue to live in Sydney following the sale of the family home or, in the event they did not, pending completion of its sale.
Before reference is made to the provisions of the Assessment Act that
her Honour was required to address, it is appropriate to observe that both parties provided detailed evidence about their financial circumstances. This included evidence in relation to income, earning capacity and expenses. In addition, the wife’s evidence provided considerable detail about her necessary expenses and those she incurred for the children, as well as their proper needs. There was no attack upon the wife’s evidence about the children’s needs, including in relation to their education.
The husband also gave detailed evidence about his expenses. Indeed, his income, earning capacity and necessary expenses were pivotal issues before
her Honour. It must be said that notwithstanding careful cross-examination and detailed written submissions which analysed the large volume of evidence on this matter, none of this finds expression in her Honour’s reasons.
So as to understand the task which her Honour faced, it is appropriate to set out the relevant parts of s 117 of the Assessment Act.
First, her Honour was required to find that a ground was made out within the terms of s 117(2) “in the special circumstances of the case”. Beyond reciting those words there are no reasons provided by her Honour as to the basis upon which in this case the circumstances of the children’s education were special.
Her Honour was then obliged to determine whether it would be just and equitable or otherwise proper to make a departure order. Sections 117(4),(5) and (6) provides:
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6) In having regard to the proper needs of the child, the court must have regard to:
(a) the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
None of the findings required by ss 117(4), (5) or (6) were made.
In relation to the husband’s application for the payment of child support other than in the form of periodic amounts, her Honour was required to consider Part 7 Division 5 of the Assessment Act. As is apparent from our summary of her Honour’s reasons, there is neither explicit nor inferential reference to these provisions. It follows that her Honour failed to consider s 121 (additional particular objects of division), s 122 (cases in relation to which division applies), s 123 (application for order under division) and s 124 (orders for provision of child support otherwise than in form of periodic amounts paid to carer entitled to child support). Many of those findings would logically incorporate findings made under Part 7 Division 4, but as we have observed, most of the necessary findings were not made.
It is well established by authority that in determining and granting an application for an order for departure from an administrative assessment, the Court must follow the three stage approach provided by the legislation and, when a non-periodic order is sought, the two steps in accordance with Part 7 Division 5 of the Assessment Act. Reference need only be made to cases such as Gyselman & Gyselman (1992) FLC 92-279 and those which followed to establish these points.
It can be seen from our earlier analysis of her Honour’s reasons for judgment, that she did not make findings required by the legislation and authority. To the extent that her Honour purported to make findings in accordance with s 117(1)(b)(ii)(A) and (B) of the Assessment Act, her failure to address the mandatory requirements of ss 117(4), (5) and (6) means that those findings were not open to her. In relation to the husband’s application, her failure to address the mandatory provision contained in Part 7 Division 5 of the Assessment Act is fatal to the efficacy of the child support order.
It is also clear that her Honour erred in the manner asserted by ground 2. In addition to the failure to address the relevant statutory provisions, as we mentioned earlier, the child support order provides for the payment of school fees in limited circumstances. It is inconsistent with her Honour’s finding at [101] that “The wife should have the reassurance of the husband meeting those [school fees and associated expenses] for the entirety of the years of education of all three children.” We agree that inexplicably the child support order fails to deal with the payment of the children’s school fees at their current school or if they were to attend at a school upon which the parties did not agree.
These were errors of principle which at least from the wife’s position would work a substantial injustice.
The errors are such to warrant the grant of leave to appeal; Wilde & Ballard (1997) FLC 92-771. The appeal must succeed. It follows that her Honour’s child support departure order must be set aside and the parties’ applications in relation to child support remitted for hearing by another judge.
Costs of the application for leave to appeal and appeal
The wife has succeeded on an error of law.
This is not a case where an order for costs would be proper. We consider that the appropriate course is to grant the wife a costs certificate in relation to the appeal and to grant a costs certificate to both parties in relation to the rehearing.
In circumstances where the husband did not have legal representation in relation to the hearing before us and the expense involved in preparation of the appeal books fell to the wife, we will not grant him a costs certificate for the appeal.
In relation to the wife it is appropriate to certify for counsel.
I certify that the preceding seventy one (71) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 7 June 2013.
Associate:
Date: 7 June 2013
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