Stirling and Dobson - [2011] FMCAfam 52

FEDERAL MAGISTRATES COURT OF AUSTRALIA

STIRLING & DOBSON

[2011] FMCAfam 52

CHILD SUPPORT – Special circumstances – where children have an extremely high standard of living – where both parents are in a position of extreme wealth – where father asserts that the children's lifestyle is lavish and unnecessary – where the actual expenses incurred by the mother in maintaining the children are far in excess of whatever allowance the child support scheme makes for the costs of children – where father concedes that he is able to meet those expenses if ordered to do so – consideration of overall costs incurred by both parties in maintaining the children – apportionment of those costs on the basis of each party's financial position.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)

Carpenter and Lunn (2008) FamCAFC 128
Chappell (2008) FamCAFC 143
Gyselman(1992) FLC 92-279
Hogan (1986) FLC 91-714
I v I (No 2) (1996) FLC 92-625
Kelly v Kelly(No 2) (1981) FLC 91-108,
Melville & Hunt [2006] FMCAfam 238
Penfold (1980) FLC 90-800
Ross v McDermott (1998) 23 Fam LR 613

Applicant:

MS STIRLING

Respondent:

MR DOBSON

File Number:

MLC9633 of 2007

Judgment of:

Walters FM

Hearing dates:

22–26 & 29 March; 27 September 2010

Date of Last Submission:

27 September 2010

Delivered at:

Melbourne (In Chambers)

Delivered on:

21 January 2011

REPRESENTATION

Counsel for the Applicant:

Mr Brown SC

Solicitors for the Applicant:

Middletons

Solicitors for the Applicant as of 12 November 2010:

Gadens Lawyers

Counsel for the Respondent:

Mr Bartfeld QC and Mr Puckey

Solicitors for the Respondent:

Taussig Cherrie & Associates

Solicitors for the Respondent as of 1 October 2010:

Unrepresented

ORDERS

IT IS ORDERED THAT:

Pursuant to section 117 of the Child Support (Assessment) Act 1989, and subject to paragraph 2 below, there be a departure from all relevant administrative assessments of child support payable by the father to the mother for the children [X] born [in] 1996 (“[X]”), [Y] born [in] 1998 (“[Y]”) and [Z] born [in] 2000 (“[Z]”) as follows:
(a)In relation to [X]:
(i)For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [X] be set at $21,060 (being $1,755 per calendar month); and
(ii)For the period from 1 January 2011 to 14 October 2014 (being the date upon which [X] attains the age of 18 years), the annual rate of child support for [X] be set at $26,832 (being $2,236 per calendar month).
(b)In relation to [Y]:
(i)For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Y] be set at $21,060 (being $1,755 per calendar month); and
(ii)For the period from 1 January 2011 to 14 December 2016 (being the date upon which [Y] attains the age of 18 years), the annual rate of child support for [Y] be set at $26,832 (being $2,236 per calendar month).
(c)In relation to [Z]:
(i)For the period from 14 December 2009 to 31…

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 Stirling and Dobson

Details

AGLC: Stirling and Dobson [2011] FMCAfam 52
Case: [2011] FMCAfam 52
Decision Date: 21 January 2011

CaseChat Overview and Summary

The case of Stirling and Dobson involved a dispute between the father and the mother concerning the assessment of child support for their three children. The matter was brought before the court, which was required to decide on several legal issues, including the rates of child support, the adjustment for inflation, and the additional lump sum payments for the children's school fees. The court also needed to determine the circumstances under which the lump sum payments would cease and whether they could be credited against the periodic child support payments.

The court began by setting specific rates of child support for each child, taking into account their respective ages and the statutory guidelines. It then addressed the issue of inflation adjustments, deciding that the annual rates of child support should be increased in line with variations in the consumer price index, starting from 1 January 2012. Regarding the lump sum payments for school fees, the court ordered that the father should pay these in four equal instalments each year, starting from 2011. Importantly, these lump sum payments were to be distinct from the periodic child support payments and would cease when the children either completed their secondary education or turned 18 years old.

The court also clarified that the lump sum payments for school fees should only cover the tuition fees and not any other associated costs such as uniforms, books, or optional activities. Furthermore, the court decided that the lump sum payments should not be credited against the periodic child support payments. Finally, the court varied an earlier order to require both parents to equally share the costs of the children's airfares. All other applications were dismissed, and each party was ordered to bear their own costs.

Orders

Orders of the court

IT IS ORDERED THAT:

Pursuant to section 117 of the Child Support (Assessment) Act 1989, and subject to paragraph 2 below, there be a departure from all relevant administrative assessments of child support payable by the father to the mother for the children [X] born [in] 1996 (“[X]”), [Y] born [in] 1998 (“[Y]”) and [Z] born [in] 2000 (“[Z]”) as follows:

(a) In relation to [X]:

(i) For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [X] be set at $21,060 (being $1,755 per calendar month); and

(ii) For the period from 1 January 2011 to 14 October 2014 (being the date upon which [X] attains the age of 18 years), the annual rate of child support for [X] be set at $26,832 (being $2,236 per calendar month).

(b) In relation to [Y]:

(i) For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Y] be set at $21,060 (being $1,755 per calendar month); and

(ii) For the period from 1 January 2011 to 14 December 2016 (being the date upon which [Y] attains the age of 18 years), the annual rate of child support for [Y] be set at $26,832 (being $2,236 per calendar month).

(i) For the period from 14 December 2009 to 31 December 2010, the annual rate of child support for [Z] be set at $21,060 (being $1,755 per calendar month); and

(ii) For the period from 1 January 2011 to 19 May 2018 (being the date upon which [Z] attains the age of 18 years), the annual rate of child support for [Z] be set at $26,832 (being $2,236 per calendar month).

The annual rate of child support payable by the father to the mother for each of the said children pursuant to paragraph 1 above will increase from 1 January each year (commencing 1 January 2012), in accordance with variations in the consumer price index (all groups level) for Melbourne.

Pursuant to section 124 of the Child Support (Assessment) Act 1989, and subject to paragraphs 4, 5 and 6 below, the father pay additional child support to the mother for the said children by way of lump sum payments as follows:

(a) In relation to [X]:

(i) Subject to (ii) below, a lump sum payment equivalent to the annual tuition fees charged by [B] School, Melbourne, for a boy in the same academic year as the academic year in which [X] would have been enrolled had he been living in Melbourne and attending [B] School for the whole of that calendar year ("[X]'s notional school fees").

(ii)

[X]’s notional school fees shall be paid by the father to the mother in four equal instalments, such instalments to be paid on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), save and except for the instalment that would otherwise have been payable by the father to the mother on 31 January 2011 (and that instalment only), which instalment shall be payable by

28 February 2011 instead of 31 January 2011.

(b) In relation to [Y]:

(i) Subject to (ii) below, a lump sum payment equivalent to the annual tuition fees charged by [B] School, Melbourne, for a boy in the same academic year as the academic year in which [Y] would have been enrolled had he been living in Melbourne and attending [B] School for the whole of that calendar year ("[Y]’s notional school fees").

(ii) [Y]’s notional school fees shall be paid by the father to the mother in four equal instalments, such instalments to be paid on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), save and except for the instalment that would otherwise have been payable by the father to the mother on 31 January 2011 (and that instalment only), which instalment shall be payable by 28 February 2011 instead of 31 January 2011.

(i) Subject to (ii) below, a lump sum payment equivalent to the annual tuition fees charged by [F] School, Melbourne, for a girl in the same academic year as the academic year in which [Z] would have been enrolled had she been living in Melbourne and attending [F] School for the whole of that calendar year ("[Z]'s notional school fees").

(ii)

[Z]’s notional school fees shall be paid by the father to the mother in four equal instalments, such instalments to be paid on or before 31 January, 30 April, 31 July and 31 October in each calendar year (commencing 2011), save and except for the instalment that would otherwise have been payable by the father to the mother on 31 January 2011 (and that instalment only), which instalment shall be payable by

28 February 2011 instead of 31 January 2011.

For the purposes of paragraph 3 above, the expression "annual tuition fees" means the annual tuition fees identified by the relevant schools (in each school's prospectus or other published summary of fees and charges) as tuition fees or charges for the relevant year, and does not include –

(a) any other fees or charges that might be imposed by the relevant schools for children to attend them (including, but not limited to, school levies or building fund contributions);

(b) uniforms, books and stationery, computer hardware and software, school excursions and compulsory travel; school lunches and school based extra curricular activities; and

The lump sum child support ordered to be provided by the father in paragraph 3 above shall terminate in the following circumstances:

(a) The father's obligation to pay [X]'s notional school fees shall terminate upon [X] completing his secondary education in the United Kingdom (or elsewhere), or upon [X] attaining the age of 18 years, whichever occurs first.

(b) The father's obligation to pay [Y]'s notional school fees shall terminate upon [Y] completing his secondary education in the United Kingdom (or elsewhere), or upon [Y] attaining the age of 18 years, whichever occurs first.

(c) The father's obligation to pay [Z]'s notional school fees shall terminate upon [Z] complete in her secondary education in United Kingdom (or elsewhere), or upon [Z] attaining the age of 18 years, whichever occurs first.

The lump sum child support ordered to be provided by the father in paragraph 3 above is not to be credited against the father’s liability for periodic child support as provided for in paragraph 1 above, and is to be paid by the father in addition to the said periodic child support.

The orders made in this Court on 27 September 2010 be varied by adding a further subparagraph to paragraph 5 of the Minute attached to the said orders as follows:

(c) The father and the mother each pay one half of the said children’s airfares pursuant to paragraphs 4(c) and (d), such airfares to be in Economy class

Each party pay his/her own costs of and incidental to these proceedings.

All extant applications otherwise be dismissed.

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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