SATHRA & SATHRA - [2013] FamCAFC 142

FAMILY COURT OF AUSTRALIA

SATHRA & SATHRA

[2013] FamCAFC 142

FAMILY LAW – APPEAL – CHILD SUPPORT – Where the appellant sought leave to appeal against orders dismissing his application to discharge child support departure orders– Whether the appellant should pay half of the children’s school fees and education expenses – Consideration of s 117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth) – Where the Court must determine whether, by reason of a change of circumstance, a ground for departure exists - Whether the appellant’s income and assets had altered since the date of the departure orders such as to make the orders unjust and inequitable – Whether the Court was required to consider the appellant’s liabilities and commitments when determining whether a ground for departure existed – Whether s 117(4) considerations were properly considered – HELD – Failure to consider relevant evidence - Appeal allowed in part.

Child Support (Assessment) Act 1989 (Cth): ss 117, 118, 124, 121, 123, 125, 129

Australian Coal & Shale Employees Federation v The Commonwealth (1993) 94 CLR 621
In the Marriage of Bryant (1996) FLC 92-690
In the Marriage of Gilmour (1995) FLC 92-591
Hides v Hatton (1997) FLC 92-759
Milham and Stanford (2001) FLC 93-073
Ross v McDermott (1998) FLC 98-003
Wild v Ballard (1997) FLC 92-771

APPELLANT:

Mr Sathra

RESPONDENT:

Ms Sathra

FILE NUMBER:

SYF

5076

2003

APPEAL NUMBER:

158

2012

DATE DELIVERED:

16 September 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace, Ryan & Rees JJ

HEARING DATE:

20 August 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 November 2012

LOWER COURT MNC:

[2012] FamCA 935

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Millar

SOLICITOR FOR THE APPELLANT:

Brian Samuel & Associates

COUNSEL FOR THE RESPONDENT:

Mr Duane

SOLICITOR FOR THE RESPONDENT:

Foat Associates Lawyers

Orders

That the appellant father is granted leave to appeal against Orders 39 – 46 (inclusive) made 2 November 2012.
The appeal is allowed in part.
Order 45 dated 2 November 2012 is set aside.
In relation to the period commencing from 11 April 2012 Orders 39 and 42 dated 2 November 2012 are set aside to the extent that by those orders the father’s application to discharge Orders 3, 4, 5 and 6 dated 19 September 2006 was dismissed.
That the applications of the parties in relation to child support that as a consequence of this appeal remain outstanding be remitted for rehearing by a judge other than the Honourable Justice Watts.
That there be no order as to costs of the appeal.
That the Court grants to the appellant father a costs certificate pursuant to s 9 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 the appellant in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent mother…

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

AGLC: SATHRA & SATHRA [2013] FamCAFC 142
Case: [2013] FamCAFC 142
Decision Date

CaseChat Overview and Summary

In this appeal, Mr Sathra sought leave to appeal against child support orders made by the Family Court of Australia. The lower court had dismissed Mr Sathra's application to discharge certain child support orders and enforce payment of child support arrears. The primary legal issue was whether the trial judge erred in failing to consider relevant evidence and make necessary findings under the Child Support (Assessment) Act 1989 (Cth). The Full Court found that the trial judge did err in not properly considering Mr Sathra's financial circumstances and commitments when determining whether a ground for departure existed. The court held that the trial judge's failure to properly consider the relevant evidence and factors amounted to an error of law.

The Full Court allowed the appeal in part and set aside certain orders. The appeal against the orders dismissing Mr Sathra's application to discharge the child support orders was allowed from 11 April 2012 when Mr Sathra established a change in his financial circumstances. The orders requiring Mr Sathra to pay half the children's school fees from that date were also set aside. The matter was remitted for rehearing before another judge to determine the appropriate child support orders moving forward. Each party was granted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing.

Orders