Siegel & Danner - [2009] FamCAFC 100

FAMILY COURT OF AUSTRALIA

SIEGEL & DANNER

[2009] FamCAFC 100

FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – CHILD SUPPORT – Parties lived in Germany – Upon separation the mother and children moved to Queensland then to Western Australia – Mother sought an administrative assessment of child support to found the Court’s jurisdiction to make departure orders – Mother sought increased child support to pay children’s private school fees – Parties conceded that the Federal Magistrate could treat the application as a departure application despite some compliance issues - Parties had entered into financial agreements following separation – At least two of these were before the Federal Magistrate and dealt with issues of child support and schooling

FAMILY LAW - DEPARTURE ORDER – Federal Magistrate determined that the fact the father lived in Germany and the mother and children lived in Australia was a “special circumstance” for the making of a departure order – Erred in principle as there was no consideration of how this fact of residence of the parties was connected to a ground for departure – For the “special circumstance” to found a departure it must have a relationship to the ground of departure

FAMILY LAW - SCHOOL FEES – Federal Magistrate ordered that the father pay half the purported costs of private schooling for the three children – No evidence of specific schools or fees was adduced at trial – The evidence of the cost of private schooling was based on historical fees – Order to pay schooling fees lacked particularity as to timeframe and applicability to individual children

FAMILY LAW - FINANCIAL CIRCUMSTANCES – The mother’s evidence of financial circumstances was based upon her income and expenses whilst living in Queensland despite the subsequent move and change of employment situation – Federal Magistrate’s consideration of financial circumstances was at a fairly general level

Leave to appeal granted – Appeal allowed – Remitted for rehearing

Child Support (Assessment) Act 1989, s 102A, s 117

C v S (2003) FMCAfam 464
Beck and Sliwka (1992) FLC 92-296
Gyselman and Gyselman (1992) FLC 92-279
Wild v Ballard (1997) FLC 92-771

APPLICANT:

Mr SIEGEL

RESPONDENT:

Ms DANNER

APPEAL NUMBER:

2009

FILE NUMBER:

BRC

3072

2008

DATE DELIVERED:

11 June 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

13 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 December 2008

LOWER COURT MNC:

[2008] FMCAfam 1390

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr R M Galloway

SOLICITOR FOR THE APPLICANT:

Langehan Lawyers

RESPONDENT:

In person

Orders

That the father be granted leave to appeal Orders 5 and 6 of the Orders of Federal Magistrate Cassidy made 2 December 2008.
That the appeal be allowed.
That Orders 5 and 6 of the Orders of Federal Magistrate Cassidy made 2 December 2008 be set aside.
That the Amended Application of the mother filed 6 August 2008 be remitted to the Federal Magistrates Court of Australia for rehearing by a Federal Magistrate other than Federal Magistrate Cassidy.

IT IS NOTED that publication of this judgment under the pseudonym Siegel & Danner is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA1 of 2009
File Number: BRC3072 OF 2008

Mr SIEGEL

Applicant

And

Ms DANNER

Respondent

REASONS FOR JUDGMENT

In December 2008, Federal Magistrate Cassidy delivered reasons for orders disposing of parenting issues and a dispute over child support between Ms Danner and Mr Siegel. The parties have three children, at trial aged nearly fifteen years, eleven years and ten years old. The proceedings to which these reasons relate is the father’s application for leave to appeal two of the three orders relating to child support. The two orders challenged are:
(5)That the father pay in addition to the assessed amount the sum of two hundred and eighty dollars ($280.00) per week for private school fees and expenses provided the children are enrolled in a private school.
(6)That the mother provide to the father two (2) weeks prior to each school term proof in writing that the children continue to be enrolled in private schools.
There is not much discussion in Cassidy FM’s reasons of the background to the parties’ dispute – I do not suggest there should have been – but it appears from matters referred to at trial by Mr Galloway, counsel for the father then (and on appeal), the parties may have separated in Germany in around 2000 but that, in 2003, the mother and children moved to Australia. Here, the mother and children lived in Brisbane until the mother and the two younger children moved to Western Australia some time in 2008, to be followed by the eldest child when she finished the school year.
Following their separation, the parties had entered into a number of agreements relating to financial matters, including support of the children. It seems well open, if not clear, from two of those agreements that were in evidence before Cassidy FM, that the parties intended their children be educated at private schools and indeed, a finding by the learned Federal Magistrate that:
49.…the parents have always intended that the children attend private schools…
is not challenged before me.
However, at the time of trial, the two youngest children were not actually at private school and there was no evidence before the Federal Magistrate of intention to send the children to any particular private school, at a particular time at a particular cost.
The focal points of the father’s attack on the orders made by Cassidy FM are:
·the lack of particularity in the order. Mr Galloway points out that, in so far as the order might have been intended to be a “departure order”, no period of time for its operation is set and there is no apportionment between the children which would allow for application of the order in the event that not all three children went to private schools.
·that there was no evidence before the Federal Magistrate which would have enabled an assessment of the actual or anticipated costs of private schooling, the only evidence being of historical cost.
However, there are other matters raised by Mr Galloway or which arise on examination of the material which merit discussion. Not only do they provide context to the focal points, but they bear upon the ultimate questions of whether leave to appeal ought be granted, having regard to whether there has been an error of principle and/or substantial injustice to the father and in the event leave is granted and the appeal is allowed, what ought then occur.
Therefore, the topics which I will address are:
(i)the issues raised by the mother’s application and the learned Federal Magistrate’s approach to them;
(ii)the absence of specific proposals for private schooling;
(iii)Cassidy FM’s consideration of the financial circumstances of the parties;
(iv)Cassidy FM’s consideration of the question of whether the case was one of “special circumstances”;
(v)the question of leave.

The mother’s application and the learned Federal Magistrate’s approach to it

The mother’s initiating application is not before me, but it is common ground that at the time it was filed, there had been no assessment under the Child Support (Assessment) Act1989 (Cth) in respect of child support. The mother subsequently applied for an assessment, of which, in her Outline of Submissions, the mother says:
89.The CSA Assessment was obtained by the Mother purely as a mechanism to bring the matter before the court so that the court would have jurisdiction to hear the application for a departure order. …
Having applied for an assessment, the mother filed an amended initiating application on 6 August 2008. The assessment for child support issued for the period 7 August 2008 to 6 November 2009 and was for $9,342.00 per annum per child.
The amended application was not in form one for departure from an administrative assessment. However, Cassidy FM said:
29.A copy of the assessment, as I said, is not in evidence before me, but Mr Galloway conceded that I could treat the child support issues as an application for departure from that assessment pursuant to s.117 of the Child Support Assessment Act. In my view that is the only way that I could come to a determination about varying child support. In this particular context I certainly do not see that I could vary the order that was entered into in Germany.
Earlier, in her reasons for judgment the Federal Magistrate had described the detail of the application of the mother as follows:
4.The child support departure the mother is arguing for would result in an order that the father pay $1500.00 per month per child up until the child's 19^th birthday; that all costs of contact for her and the children to travel to Germany should be paid by the father; and thirdly, that the sum of $12,000.00 per year per child be paid to cover school fees and extracurricular activities and other costs associated with attending school; and fourthly, $5000.00 per year towards the cost of medical insurance.
5.The mother is also seeking an order that the father disclose to the mother the status of transactions relating to the children's financial affairs from January 2003 to the present and at the end of each calendar year hereafter. An additional order seeks the discharge of an agreement the parties executed on 4 November 2003.
In her judgment, after dealing with parenting issues, the learned Magistrate returned to questions of child support, noting that the parties had entered into a number of agreements covering child support, and two were in evidence before her, one dated 21 December 2001 and the other 4 November 2003, a date after the mother and children moved to Australia. That latest agreement provided that the father pay half the costs of the children’s travel to Germany to spend time with the father, some health costs and child support of $DM800.00 per child per month until each child reached eighteen years of age, CPI indexed. As well, a half interest in a property was transferred to the children, the remaining half being with the mother, and from their interest in that property the children received about $324.00 per week.
In following paragraphs, Cassidy FM in effect recognised that the amount of the assessment by the Child Support Agency was approximate to the amount payable by the father, on a monthly basis, under the last agreement between the parties.
However, in her reasons from that point, her Honour did not return to any aspects of the mother’s application, other than the question of private school fees.
Further, in addresses, Mr Galloway adverted to one of the mother’s arguments as:
…the theme of [Ms Danner] is that she was somehow obliged to enter into the agreements under duress.
That also was not a matter with which the learned Federal Magistrate ultimately dealt.
These failures may seem only to disadvantage the mother, who does not seek to appeal the Federal Magistrate’s orders.
However, they are among the features which may colour the view taken of other areas of challenge and which may also bear upon what ought be done in the event leave is granted and the appeal allowed.

The absence of specific proposals for private schooling

When the mother moved to Western Australia, her relationship with a [Mr Danner] having broken down, and she being in another relationship with a [Mr S], who lived in Western Australia, as seen, she took the two younger children with her, but left the eldest child at private school here to complete her year. The mother enrolled the two younger children in a West Australian State school and they were attending there at trial.
The mother argues, and for present purposes I accept, that there was an abundance of evidence about past schooling costs before the Federal Magistrate. What was absent though was any particular proposal by the mother in relation to the future schooling of any child.
While in the terms of the mother’s application, and what she said in her address to Cassidy FM, her case might have been that she had not enrolled the children in any particular private school, awaiting the outcome of her application, that does not explain why she had no particularity to her schooling proposal.
Indeed, Mr Galloway suggested in his address to Cassidy FM that the wife’s evidence accommodated the prospect that the younger children would not be moved from the school they attended.
I note that Cassidy FM herself said:
46.The mother has indicated the children will be going to a State school in Western Australia. The father did not seem to oppose this course.…
…
51.…If the mother decides that the children should be enrolled in a State school, as she indicated was her course that she intended to take…
On the other hand, that the children might be sent to private school seems also to have been a prospect as, in his submissions dealing with parenting orders, Mr Galloway said:
Clearly the mother will determine their school.
However, the father’s position was that, even if the children did attend private school, under the last agreement, the question of the way in which private schooling fees would be met had been resolved and he should not be called upon to make any further payment.
The end result at trial about where the children would attend school seems either, as Cassidy FM said, they would be attending State school or, as the mother seems now to argue was her case, that if she succeeded in her application (which she did only in part) she would send the children to private school. However, there was no finding about the probabilities of her doing that.
In the circumstances, the order that Cassidy FM made takes on a hypothetical air.
Returning to the matter of evidence of private school costs, during Mr Galloway’s address, the learned Federal Magistrate said:
…[O]ne of the difficulties I have got in this case that the tuition fees and where the children are attending school I just haven’t got any evidence of that. … It is a really major sort of failing in this case.
Then, during the mother’s address, her Honour said in response to a statement by Ms Danner that:
(MS [DANNER]): …The material about what schools they had been in, how much it costs, it is all before this court.
(CASSIDY FM): I understand that. It’s in respect of where they’re going to attend school in Western Australia is not before the Court. The costs of that.
However, in her reasons for judgment, when addressing particulars of the parties’ financial circumstances and immediately before turning to the questions of whether there were special circumstances or grounds for departure, Cassidy FM said:
45.The children earn $324.00 per week from the rent from the interest they have in the property in Germany. The total therefore that is paid by the father and by the children is $854.00 per week. The costs of education of these children on the mother's assessment is $560.00 per week.
46.The mother has indicated the children will be going to a State school in Western Australia. The father did not seem to oppose this course. This leaves the children's expenses at $1144.00 of which $854.00 are being met by maintenance from the father and the children's income.
In paragraph 46 just quoted, an impression taken from the last two sentences might be that the learned Federal Magistrate was rejecting the claim for private school costs and moving to consider the remaining children’s expenses and how they might be met. As indicated earlier, such a consideration would have been within the ambit of the mother’s application. However, as already stated and as will be shortly seen, her Honour ultimately dealt only with the issue of private school fees.
Later in her reasons, her Honour again referred to private education costs:
51.…Given that the mother has assessed the costs of attending private schools at $560.00 per week – and this was not challenged…
As seen, in this passage and paragraph 45 quoted above, her Honour expressed a finding that the costs of education of these children is $560.00 per week. There was no discussion to underpin a conclusion that the costs of attending private school in Perth in future will be what costs were historically. This absence of explanation as to how historic costs establish current or future costs is exacerbated by the uncertainty of whether the children will go to private schools at all and if so, when.

The learned Federal Magistrate’s consideration of the parties’ financial circumstances

In her statement of financial circumstances, the mother had set out that her income comprised $2,793.00 per week. That document however related to her earnings in Queensland where she was in employment. In her judgment, the learned Magistrate recognised that the mother was not working in Western Australia at the time of trial. However, Mr Galloway argued that the learned Federal Magistrate, when comparing the parties’ financial circumstances, failed to have regard to the mother’s earning capacity. I do not think that is in fact so because, as will be seen from paragraph 49 (set out later), in arriving at the difference between the father’s gross income and the mother’s gross income, the figure taken was that from her statement of financial circumstances, sworn when she was in employment.
When Cassidy FM came to consider the parties’ financial circumstances, she said:
38.The parties' respective financial positions are set out in their financial statements filed in the Court and read in the matter. I note the mother's income is set out at $2793.00 per week, and that has changed since she filled out her form as she has moved to Western Australia and is not presently working. She swears the weekly costs of caring for the children, including private education, are $1972.00 per week, and this is contained in her financial statement.
39.The education costs as set out in that statement are $560.00 per week. She has included $268.00 in legal costs in this amount, which I would not consider to be an appropriate expense relating to the children.
40.The costs of contact she sets out at $101.00 per week. The costs of maintaining these children on the mother's evidence, minus legal costs, are $1704.00 per week. These were not seriously challenged by the counsel for the father.
41.The mother's property, including superannuation, is $1,991,710.00 plus $32,205.00 in superannuation minus liabilities of $1,008,175.00, which gives her a net property pool of $943,740.00.
42.The children have a half-interest in a house in Germany that I have already mentioned, and that is property that generates income for them.
43.The father's weekly income is $9819.79 per week. His expenses, including child support, are $8165.48. The father's debts exceed his assets in that he has $2,138,295.00 in liabilities and $1,741,508.00 in assets, a difference then creating a deficit of $396,797.00.
The mother’s total weekly expenses were stated by her to be $4,560.00, significantly above her income even when in employment. Often in such cases, in the absence of explanation of how such large shortfalls are funded, the expenses might be seen as “aspirational” rather than actual.
Moreover, as to her Honour’s view (paragraph 40) that the mother’s evidence of the costs of maintaining the children “were not seriously challenged”, it is true that, as conceded by Mr Galloway on appeal, at trial he did not cross-examine the mother about particular items on her list of weekly expenses. However, he did in addresses invite the learned Federal Magistrate to herself examine these expenses and to find a number of them unsupported and/or unreasonable.

In Beck and Sliwka (1992) FLC 92-296 Moore J said of evidence as to the expenses of a party to child support (stage 1) proceedings:
Obviously, Kay J did not regard the stated commitments of the husband as immutable or determinative of the issue, notwithstanding the absence of cross-examination as to them. Nor was his Honour obliged to do so.
Thus though it may not be inaccurate to say that the mother’s claimed expenses were not seriously challenged by counsel for the father, it is perhaps not clear whether her Honour had in mind what counsel in address had invited her to do.
After referring in paragraph 47 of her reasons, to “special circumstances” – discussed in the next section of these reasons – Cassidy FM moved to her concluding paragraphs:
48.The father's income is vastly superior to the mother's, being $9819.00 per week. He has, on his own evidence, an excess of $1654.00 per week, although I note his assets position is that he has a negative asset pool. The mother has significantly more property than the father in that she has about $900,000.00 worth of property.
49.I am not persuaded that the costs of contact pursuant to s.117(2)(b)(i) justify a departure. The reason for that is the parties have put that into their contracts and made arrangements for that from the outset and there is not all that much contact that the children have with their father that involves them attending in Germany. However, given the parents have always intended that the children attend private schools and the father's income exceeds the mother's by $7026.00 per week and he has a surplus on his own case of $1654.00 per week I am satisfied that s.117(2)(b)(ii) and s.117(2)(c)(i)(a) are satisfied.
50.The proviso is that, however, the father should pay an additional sum to ensure that the children do attend private schools, and it is only on the basis that their children attend private schools that he should pay that sum.
51.Given that the mother has assessed the costs of attending private schools at $560.00 per week - and this was not challenged - I am going to make an order that the father pay $280.00 per week, but only if the mother provides the father with proof in writing two weeks prior to the school term starting (sic) that the children continue to be enrolled in a private school. If the mother decides that the children should be enrolled in a State school, as she indicated was her course that she intended to take, then the father is not required to pay that sum.
52.I have settled on that amount because it seems to me that the father has the capacity to pay that and it is consistent with their intention that these children should attend private schools. I am conscious, however, that the father had ensured that the private school fees were paid by arranging for the children to be owners of the property in Germany.
53.I must now determine if the order is just and equitable and otherwise proper. Gyselman (supra).
54.The father's arrangements in the contract that he executed with the mother that placed half of the property in the children's name was intended to cover the costs of private education and he would say that I should not now make an order in relation to school fees because it would not be just and equitable given the parties' contemplation of this and the fact that they have dealt with it in the contract. However, I am satisfied it was the intention of the parties that the children should attend private schools; that is clear on the evidence from the contract, and it is clear that the father has some income available to assist with the payment of those fees and in that context I am satisfied that it is just and equitable.
55.In considering whether it is otherwise proper it does not in any way interfere with any pension entitlements that I would need to take into account and so it is otherwise proper.
The only observation which I express at this stage is that, as perhaps was determined by the state of evidence before her, the Federal Magistrate’s consideration of the parties’ financial circumstances was at a fairly general level.

Whether the case for departure was one of “special circumstances”

The term “special circumstances of the case” is contained within s 117 of the Child Support (Assessment) Act 1989 – (“the Act”) the primary section dealing with the court’s power to make orders by way of departure from administrative assessments. The heading to the section and the first subsection read:
117Matters as to which court must be satisfied before making order
Court may make departure order
(1)Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii)that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.
Subsection (2) then describes the grounds for departure in three paragraphs, each of which refers to a factor relating to the costs or needs of a child, or the financial capacity of a parent. The opening words of each paragraph are the same, and are:
that, in the special circumstances of the case… .
While a reading of subsection (1) alone might make it appear that “special circumstances” might be found almost as a threshold examination, followed by a finding as to ground for departure, as seen, each ground for departure itself also requires that the factor with which the ground deals must exist “in the special circumstances of the case.”
In Gyselman and Gyselman (1992) FLC 92-279, the Full court said at 79,065:
Section 117(2) sets out the grounds for departure from administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case”. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasize that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (p. 77,897), Kay J adopting the view in Philippe and Philippe (1978) ¶90-433 at p. 77,202 in a different context, said that “special circumstances” were “facts peculiar to the particular case which set it apart form other cases”. The approach to the interpretation and application of the particular grounds in s 117(2) must be guided by that qualification.
In my view it is clear that for “the special circumstances” to found a departure from an assessment, they must have a relationship to the ground for departure.
Cassidy FM first mentioned the question of “special circumstances” after she had discussed, to the effect earlier indicated, the agreements entered into by the parties and the assessment obtained by the mother. Her Honour said:
32.The issues for determination in this matter are whether special circumstances in this case should result in a departure order.
Her Honour next referred herself to the law, quoting extensively from C v S (2003) FMCAfam 464 at paragraphs 54 to 62, a decision of Brown FM, following which she said:
35.Paragraph 117 of the Act sets out the various grounds for departure that it is necessary to find before a departure order can be made. The grounds for departure in this case, as far as I can discern them, because the mother was in person and they were not clearly enunciated seem to me to be, firstly, the special costs of maintaining these children, in particular the costs of the children being cared for in a manner expected by the parents; s.117(2)(b)(ii). In the present case both parents anticipated the children would attend private schools. Secondly, the formula would be unjust because of the income, property, financial resources and earning capacity of the father; s.117(2)(c)(ia) and(ib). And thirdly, the special circumstances the costs of maintaining the child are significantly affected because of the high costs of contact; s.117(2)(b)(i).
36.In C v S Brown FM then observed that s.117(4) has to be considered and s.117(5), and he said this: he noted that Gyselman, the Full Court said:
“As we have already indicated, the exercise under section 117 involves three steps. The first, which we have already examined, is whether one or more of the grounds in subsection 2 has been made out. The legislation then requires the court to consider whether any proposed order is ‘just and equitable’ and ‘otherwise proper.’”
37.It is clear that I have to go through these three steps if I determine that special circumstances are in fact present. (emphasis added)
Her Honour next addressed “The Parties’ Respective Financial Positions” as earlier described, but then, though under that heading, returned to the issue of “special circumstances”:
47.The first issue I have to determine is if there is a special circumstances in this case that justify the departure. This is a case where there clearly is an out of the ordinary situation and a special circumstance in that the father resides in Germany and the mother resides in Australia. That is not the ordinary run of the mill case where both parties live nearby and an administrative assessment accurately represents a just and equitable distribution of income between the parties.
It might be argued that the last sentence implies that a “special circumstances” was that the administrative assessment did not represent “a just and equitable distribution of income between the parties”. Any such argument would be difficult to maintain.
Firstly, the learned Federal Magistrate still seems to link the assessment with the facts of residence. Secondly, the term “just and equitable distribution of income” is not one used in the Act.
Thirdly, though her Honour then, as seen, moved on to consider the disparity in the parties’ earnings and referred again to the parties’ intention that the children attend private schools, she did so in the context of whether those matters constituted any of the factors mentioned in the Act’s description of the grounds that her Honour had identified. These, as seen earlier, her Honour identified in paragraph 49 of her reasons as the parties’ intention that the children attend private schools and the disparity in the parties’ respective incomes. Her Honour did not revisit the concept of “special circumstances” and accordingly it seems that the one special circumstance upon which her Honour relied was the fact that the father lived in Germany and the mother here.
Her Honour did not expressly address the question of any relationship between the facts of the parties’ residence on the one hand and factors which might constitute a ground for departure on the other.
In my view, there is no implication necessarily to be seen from the facts of each party’s residence that takes this case out of the ordinary, in any way relevant to the application of s 117 of the Act.
I consider that in finding the special circumstance as she did in this case, her Honour erred in principle.

The question of leave

As Mr Galloway acknowledged in his Outline of Submissions, the effect of s 102A(1) of the Act is that the father can only appeal if leave is granted.
In Wild v Ballard (1997) FLC 92-771 the Full court said, at 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 Gilmour and Gilmour the Full court (Ellis, Finn and Maxwell JJ) endorsed suggestions made in both Bassingthwaite v Leane and Best and 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.
I follow that approach.
The proposed grounds of appeal (with ground 6 added by leave) are:
1.        The Appellant is seeking orders to dismiss paragraph 5 and 6 of the Order in the matter [DANNER]./.[SIEGEL], P(BRC)3072/08 made on 02.12.2008 on following grounds:
1. that the Federal Magistrate erred in determining that the father pay in addition to the assessed amount the sum of $280.00 per week for private school fees in circumstances where the requirements for a departure from assessment set out in s.117(1) of the Child Support Assessment Act have not been met.
2.        That the Federal Magistrate erred in finding that the education costs of the children in the respondent’s financial statement were between $560.00 per week, when at the same time of the hearing the sum was not being paid, the children had left their private school and whether there was no evidence of fee levels likely to be incurred in the future.
3.        That the Federal Magistrate erred in that the effect of the order is uncertain as to whether it becomes payable if one or more of the children cease to be enrolled at a private school.
4.        That the discretion of the Federal Magistrate has miscarried by reason of her failing properly to take into account the effect of the operation of the child support agreements made in Germany and the respective financial circumstances of the parties.
5.        That the Federal Magistrate was otherwise wrong in law in determining that there should be school fees paid in addition to the child support assessment in that the order made was not a departure from the assessment and was not otherwise maintainable.
6.        That the reasons given by the learned Federal Magistrate for determining that the Appellant should pay the sum of $280.00 per week for private school fees in addition to moneys he was already assessed to pay are insufficient.
I have already found that one of the grounds would succeed. Ground 6- insufficient reasons- would, in my view on the matters already discussed, also succeed. Others may also, but I think that unnecessary to decide.
As to whether the errors have significantly affected the father’s substantive right, the father has apparently not received any notice that the children are in private school. He may never receive such notice. Also, it seems highly likely that, given the order that he pay $280.00 per week was based on historical and not actual cost, if the children are, or one of them is, enrolled in private school, the father could bring a further application for departure, based on a comparison of the actual costs, if less than $560.00 per week, or the proportion of that sum applicable per child.
It also may well be arguable, despite the lack of particularity in the order, that it implicitly lasts until the end of each child’s schooling and if not all children go to private school, the amount might be adjusted proportionately.
Against these propositions however, are the following.
·   The learned Federal Magistrate has erred in principle in relation to the question of what constitutes special circumstances.
·   The father may have difficulty in ascertaining the costs of private school education.
·   To deny the father leave to appeal means that the onus, which was on the wife in relation to the (erroneous) departure from the administrative assessment, passes to the father in seeking to have that departure altered.
·   As to the lack of detail in Order 5, while I have suggested arguments that might see those arguments fail on appeal, the lack of detail does leave room for disputation.
·   The father is left under the current orders not knowing if and when a liability might fall upon him.
In my view, leave ought be granted, the appeal allowed and Orders 5 and 6 be set aside.

Re-exercise of discretion or remission

Mr Galloway urges that I re-exercise the discretion and dismiss the mother’s application, because of a lack of evidence about actual or prospective private school fees. The difficulty with that course however is that, as seen, there was much more to the mother’s application than that. Too many questions relevant to a re-exercise are unanswered. Mr Galloway does not invite me to consider afresh the mother’s entire application and indeed, only invites me to re-exercise if the result is as he urges.
I consider that the application ought be remitted for rehearing.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 11 June 2009