Semple & Tyson - [2009] FamCA 26

FAMILY COURT OF AUSTRALIA

SEMPLE & TYSON

[2009] FamCA 26

FAMILY LAW – CHILD SUPPORT - application for adult child maintenance to commence after the child attains 18 years – application dismissed pursuant to s66E – the child not having attained 17 years – s66L(1) did not apply

FAMILY LAW – CHILD SUPPORT – application for departure from administrative assessment of periodic child support based upon an analysis and determination of the respective incomes of the parents where their taxable income does not reflect their real disposable income

FAMILY LAW - CHILD SUPPORT – application for departure from administrative assessment of periodic child support based the special circumstances of a child with health difficulties

FAMILY LAW - CHILD SUPPORT – application for departure from administrative assessment of periodic child support based upon the standard of living of the children prior to separation and the unfair application of the formula when both parents earn about or over the capped amount prior to the 2008 changes

FAMILY LAW - CHILD SUPPORT – consideration jurisdiction of the court to hear the application for change to some assessments by reason of a determination under s116(1)(b) of the Child support Assessment Act 1989

FAMILY LAW – CHILD SUPPORT – enforcement – collection of arrears – application adjourned pending calculation of arrears after change in periodic child support assessments

FAMILY LAW - CHILDREN – ENFORCEMENT – enforcement of a Binding Financial Agreement providing for maintenance for the children of the marriage. Application adjourned pending calculation of arrears after change in periodic child support assessments.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1988 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth)

Corness & Cameron [2005] FMCAfam 558
Dwyer & McGuire (1993) FLC 92-420
F & S [2003] FMCAfam 531

Fitzgerald & Fitzgerald [2002] FMCAfam 42
Lightfoot v Hampson (1996) FLC 92-663
Mee v Ferguson (1986) FLC 91-716
Smith; St James; Smith v Wickstein (1996) FLC 92-714
Wild v Ballard (1997) FLC 92-771

WGB & CEM [2004] FMCAfam17

APPLICANT:

Ms Semple

RESPONDENT:

Mr Tyson

FILE NUMBER:

HBF

1363

2003

DATE DELIVERED:

29 January 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Launceston

JUDGMENT OF:

Benjamin J

HEARING DATE:

4, 5 & 6 November 2008 & 1 December 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R Murray

SOLICITOR FOR THE RESPONDENT:

In person

Orders

The wife’s application for adult child maintenance for the child S is dismissed.
There is a departure from administrative assessments of child support for the children, S (born … February 1992), H (born … June 1993) and D (born … February 1995), payable by Mr Tyson to Ms Semple as follows:
(a)from 1 July 2005 to 30 June 2006 the annual rate payable is $18,979.00
(b)from 1 July 2006 to 30 June 2007 the annual rate payable is $18,979.00
(c)from 1 July 2007 to 30 June 2008 the annual rate payable is $18,979.00
There is a departure from the administrative assessments to the extent that;
(a)the adjusted income amount of Mr Tyson, the…

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.

Continue reading Semple & Tyson

Details

AGLC: Semple & Tyson [2009] FamCA 26
Case: [2009] FamCA 26
Decision Date: 29 January 2009

CaseChat Overview and Summary

In *Semple & Tyson* [2009] FamCA 26, Benjamin J of the Family Court of Australia considered applications by the wife, Ms Semple, concerning child support for her three children with the husband, Mr Tyson. The applications included a request for adult child maintenance, a departure from administrative assessments of periodic child support, and the enforcement of alleged arrears under both the administrative assessments and a binding financial agreement.

The court was required to determine several legal issues. Firstly, whether the court had jurisdiction to grant adult child maintenance under section 66E of the *Family Law Act 1975* (Cth) given the child had not yet attained 17 years of age. Secondly, whether special circumstances existed to justify a departure from the administrative child support assessments, specifically considering the health difficulties of one child, the standard of living prior to separation, and the incomes of both parents, particularly in light of the capped child support amounts prior to the 2008 legislative changes. The court also considered its jurisdiction to hear the application for changes to assessments under section 116(1)(b) of the *Child Support (Assessment) Act 1988* (Cth). Finally, the court addressed the enforcement of alleged arrears.

Benjamin J dismissed the application for adult child maintenance, finding that the child had not yet attained the age of 17 years, thus section 66L(1) of the *Family Law Act 1975* (Cth) did not apply. The court found that there were grounds to depart from the administrative child support assessments. This departure was based on an analysis of the parties' respective taxable incomes, which were determined not to reflect their true disposable income, and the special circumstances of a child with health difficulties. The court also considered the pre-separation standard of living and the impact of the capped child support formula on parents earning at or above the capped amount. The court made specific orders departing from the administrative assessments, setting annual rates of child support and adjusted income amounts for both parents for specified periods. The application for enforcement of arrears was adjourned pending the calculation of arrears following the changes to the periodic child support assessments.

Orders

Orders of the court

The wife’s application for adult child maintenance for the child S is dismissed.

There is a departure from administrative assessments of child support for the children, S (born … February 1992), H (born … June 1993) and D (born … February 1995), payable by Mr Tyson to Ms Semple as follows:

(a) from 1 July 2005 to 30 June 2006 the annual rate payable is $18,979.00

(b) from 1 July 2006 to 30 June 2007 the annual rate payable is $18,979.00

There is a departure from the administrative assessments to the extent that;

(a) the adjusted income amount of Mr Tyson, the liable parent is;

i. $152,529.00 for the period from 1 July 2008 to 30 June 2009, and

ii. $ 152,529.00 for the period from 1 July 2009 to 30 June 2010.

(b) the adjusted income amount of Ms Semple, the carer entitled to child support is;

i. $180,000.00 for the period from 1 July 2008 to 30 June 2009, and

ii. $180,000.00 for the period from 1 July 2009 to 30 June 2010.

The application for enforcement of the alleged arrears of child support and alleged arrears under a financial agreement between the parties is adjourned for mention before a Registrar at Launceston at 10.00am on 12 February 2009 by telephone by dialling …

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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