Taggart & Pelly - [2008] FMCAfam 1321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TAGGART & PELLY

[2008] FMCAfam 1321

CHILD SUPPORT – Interim proceedings – child support agreement entered into in December of 2005 – Registrar has determined child support agreement “transitions” to new legislative regime – agreement fixed child support payable by reference to “capped” amount of father’s income – concept of “capped” amount repealed by applicable legislation currently in operation – transitional arrangements – father seeks discharge of agreement – mother seeks stay of collection pending departure application – what is appropriate level of child support for father to pay pending departure application or application to discharge agreement – what legislative regime is applicable – criteria to be considered in fixing appropriate amount of child support.

Family Law Act 1975, ss.72, 77
Child Support (Assessment) Act 1989 (current to 30 June 2008) ss.3; 4; 42; 95(2); 98; 114; 116; 117;136
Child Support (Assessment) Act 1989 ss.3; 42; 136
Child Support (Registration & Collection) Act 1988 ss.3, 111B; 111C
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006
Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006
Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation & Other Measures) Act 2004

Bryant & Bryant (1996) FLC 92-690
In the Marriage of Gyselman (1992) FLC 92-279
Wild & Ballard (1997) FLC 92-771
Savery & Savery (1990) FLC 92-131

Applicant:

MS TAGGART

Respondent:

MR PELLY

File Number:

ADC 2539 of 2008

Judgment of:

Brown FM

Hearing date:

21 November 2008

Date of Last Submission:

21 November 2008

Delivered at:

Adelaide

Delivered on:

9 December 2008

REPRESENTATION

Counsel for the Applicant:

Ms Lewis

Solicitors for the Applicant:

Robinson & Mason

Counsel for the Respondent:

Mr Whittle

Solicitors for the Applicant:

Norman Waterhouse

ORDERS

Pursuant to section 111C of the Child Support (Registration & Collection) Act 1988 the parties’ current child support assessment, arising from the acceptance of the child support agreement between them dated 12 December 2005, be stayed and in lieu thereof the father pay child support to the mother for the children [L] born in 2000 and [C] born in 2004 as follows:
(a)From 1 July 2008 onward at the rate which would have been assessed by the Registrar of the Child Support Agency by reference to the legislatively mandated formula applicable in the event that the parties’ child support agreement had not been accepted by the Registrar in respect of the calculation of periodic amounts of child support;
(b)All private school fees, fixed and sundry expenses as appear on school invoices, uniforms and books required for the aforesaid children to attend such private schools as the parties agree with attendance commencing when each child enters Year 8;
(c)Private medical insurance at the top level of cover.
The proceedings be otherwise adjourned to 12 February 2009 at 4:00pm for further directions and if necessary to allocate a date for the final hearing of the parties’ competing applications in respect…

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: Taggart & Pelly [2008] FMCAfam 1321
Case: [2008] FMCAfam 1321
Decision Date: 9 December 2008

CaseChat Overview and Summary

Taggart & Pelly involved a dispute between the father and mother regarding the child support agreement they had entered into on 12 December 2005. The father was required to pay child support for their two children, [L] born in 2000 and [C] born in 2004. The matter was heard in the Family Court of Australia. The central issue for the court was the validity and enforcement of the child support agreement between the parties and the subsequent assessment of child support by the Registrar of the Child Support Agency. The court had to determine the appropriate rate of child support to be paid by the father and whether the agreement should be enforced as it was or if it should be varied.

The court considered the statutory provisions under the Child Support (Registration & Collection) Act 1988, particularly section 111C, which empowers the court to vary or set aside child support agreements. The court found that the agreement did not adequately account for the children's future educational needs, particularly in relation to private school fees and medical insurance. The court concluded that the agreement should be varied to ensure the children's educational and health needs were met appropriately. Consequently, the court ordered that the child support agreement be stayed and in its place, the father was to pay child support at the rate that would have been assessed by the Registrar if the agreement had not been accepted, along with private school fees, uniforms, books, and top-level private medical insurance for the children. The court also set a date for further directions and potentially the final hearing of the parties' competing applications regarding child support and children's issues.

Orders

Orders of the court

Pursuant to section 111C of the Child Support (Registration & Collection) Act 1988 the parties’ current child support assessment, arising from the acceptance of the child support agreement between them dated 12 December 2005, be stayed and in lieu thereof the father pay child support to the mother for the children [L] born in 2000 and [C] born in 2004 as follows:

(a) From 1 July 2008 onward at the rate which would have been assessed by the Registrar of the Child Support Agency by reference to the legislatively mandated formula applicable in the event that the parties’ child support agreement had not been accepted by the Registrar in respect of the calculation of periodic amounts of child support;

(b) All private school fees, fixed and sundry expenses as appear on school invoices, uniforms and books required for the aforesaid children to attend such private schools as the parties agree with attendance commencing when each child enters Year 8;

The proceedings be otherwise adjourned to 12 February 2009 at 4:00pm for further directions and if necessary to allocate a date for the final hearing of the parties’ competing applications in respect of both child support issues and children’s issues.

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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