Van de Berg & Van de Berg
[2009] FamCAFC 112
•3 July 2009
FAMILY COURT OF AUSTRALIA
| VAN DE BERG & VAN DE BERG | [2009] FamCAFC 112 |
| FAMILY LAW - APPEAL – CHILD SUPPORT – where the Magistrate ordered that Child Support Agency assessments against the father be departed from – where the father argued that there were errors in two dates and in a monetary amount in the Magistrate’s orders and sought the Full Court amend the orders to fix the errors – where leave to appeal required – leave to appeal granted – appeal allowed – orders amended by Full Court. FAMILY LAW - APPEAL – COSTS – costs certificates granted. |
| Federal Proceedings (Costs) Act 1981 (Cth) |
| APPLICANT/APPELLANT: | Mr Van de Berg |
| RESPONDENT: | Ms Van de Berg |
| FILE NUMBER: | PTW | 4816 | of | 1994 |
| APPEAL NUMBER: | WA | 32L | of | 2008 |
| DATE DELIVERED: | 3 July 2009 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth |
| JUDGMENT OF: | Finn, Coleman and May JJ |
| HEARING DATE: | 2 July 2009 |
| LOWER COURT JURISDICTION: | Magistrates Court of Western Australia |
| LOWER COURT JUDGMENT DATE: | 29 April 2008 |
| LOWER COURT MNC: |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Jones |
| SOLICITOR FOR THE APPELLANT: | Peterson & Dowding |
| COUNSEL FOR THE RESPONDENT: | Self represented |
Orders
That the applicant/appellant father be granted leave to appeal paragraph 1 of the orders of 29 April 2008.
That the appeal against paragraph 1 of the orders of 29 April 2008 be allowed.
That sub-paragraph (b) of paragraph 1 of the orders of 29 April 2008 be amended to read:
“from 1 January 2003 to 7 September 2003 on the basis that the liable parent’s child support income amount is $88,900.00 per annum; and”
That sub-paragraph (c) of paragraph 1 of the orders of 29 April 2008 be amended to read:
“from 1 January 2005 to 1 July 2005 on the basis that the liable parent’s child support income amount is $94,067.00 per annum.”
That the Court grants to the applicant/appellant father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 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 father in respect of the costs incurred by the applicant/appellant father in relation to the appeal.
That the Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 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 respondent mother in respect of the costs incurred by the respondent mother in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym Van de Berg & Van de Berg is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH |
Appeal Number: WA 32L of 2008
File Number: (P)PTW 4816 of 1994
| Mr Van de Berg |
Applicant/Appellant Father
And
| Ms Van de Berg |
Respondent Mother
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Van de Berg (to whom it is convenient to refer as “the appellant father” or “the father”) for leave to appeal paragraph 1 of orders made by Magistrate Monaghan on 29 April 2008, and if leave be granted, an appeal against that paragraph of the orders.
An order was made by the Regional Appeal Registrar on 24 March 2009 providing for the proposed appeal to be argued with the application for leave to appeal.
The provisions of the paragraph (being paragraph 1) of the orders of 29 April 2008 which the father seeks leave to appeal can be summarised as follows:
·that the child support assessments issued (by the Child Support Agency) against the appellant father in favour of Ms Van de Berg (to whom we will refer as “the respondent mother” or “the mother”) for the benefit of the four children of the marriage of the father and mother be departed from as follows:
(a) or (i)from 1 October 2001 to 1 January 2003 on the basis that the child support income of the father (as “the liable parent”) is $87,600.00 per annum;
(b) or (ii) from 1 January 2003 to 1 October 2003 on the basis that the father’s child support income amount is $88,900.00 per annum;
(c) or (iii)from 1 November 2004 to 1 July 2005 on the basis that the father’s child support income is $133,000.00 per annum.
Although the notice of appeal contained four grounds of appeal, the only ground which was pursued before us was directed to sub-paragraphs (b) and (c) of Order 1 (or sub-paragraphs (ii) and (iii), depending upon which version of the order is read), and was as follows:
1.In relation to paragraphs 1(ii) and 1(iii) of his orders, the learned Magistrate erred in law by:
(a)Determining that the Applicant should pay child support to 1 October 2003 and from 1 November 2004 despite the [mother’s] concession that his assessment was appropriate from September 2003 to December 2004.
(b)Determining that the Applicant’s child support amount from 1 November 2004 to 1 July 2005 was $133,000 per annum when he did not commence to earn such income until 1 July 2005.
It is stated in the appellant father’s summary of argument that he seeks (if the appeal is successful) that:
·in paragraph 1(b) (or (ii)) of the orders “1 October 2003” should be changed to “7 September 2003”;
·in paragraph 1(c) (or (iii)) of the orders “1 November 2004” should be changed to “1 January 2005”;
·and also in paragraph 1(c) (or (iii)) of the orders the figure of $133,000 should be changed to $94,067.
It will thus be seen that the appeal is of narrow scope in that only two dates and a monetary amount are sought to be changed in the Magistrate’s orders. It is therefore unnecessary for us to refer to the factual background to this case. It is only necessary to say that his Honour had before him for determination a number of applications, including an application by the mother for orders under the Child Support (Assessment) Act 1989 (Cth) for departure from the administrative assessments issued by the Child Support Agency against the father for the period 1 October 2001 to 31 December 2006. In relation to that application his Honour made the order which we have described earlier in paragraph 3.
Discussion of the matters raised by the appeal
In support of the appellant father’s case that the date of “1 October 2003” appearing in sub-paragraph (b) (or (ii)) of paragraph 1 of the orders of 29 April 2008 and that the date of “1 November 2004” appearing in sub-paragraph (c) (or (iii)) of that paragraph were wrong, counsel for the appellant father relied on the following statement which appears on page 2 of his Honour’s reasons:
In closing submissions at the hearing on 18 February 2005 counsel for [the mother] accepted that [the father] was assessed on the appropriate child support income amount for the period from September 2003 to December 2004. A departure order is not sought for that period by [the mother].
Counsel also relied on the following statement which appears on page 15 of his Honour’s reasons:
5.There is no issue in relation to the assessment that issued against [sic] from 8 September 2003 to 31 December 2004. [The mother] does not seek a departure order for this period.
Before us, the mother (who appeared before us without legal representation) confirmed that at the hearing before Magistrate Monaghan (when she was legally represented), she did not seek a departure order from the assessment made by the Child Support Agency for the period 8 September 2003 to 31 December 2004.
It was therefore clear that the period of the departure order referred to in Order 1(b) (or (ii)) of 29 April 2008 should have been “1 January 2003 to 7 September 2003” and not “1 January 2003 to 1 October 2003” (Emphasis added).
It is also clear that the period of the departure order referred to in Order 1(c) (or (iii)) of 29 April 2008 should have been “1 January 2005 to 1 July 2005” rather than “1 November 2004 to 1 July 2005” (Emphasis added).
As we explained to the respondent mother at the hearing of the appeal, these changes of dates were necessary because she had not sought a departure order for the period 8 September 2003 to 31 December 2004, and thus the dates for the departure orders which immediately preceded and which immediately followed that period of 8 September 2003 to 31 December 2004 had to accurately reflect the period for which a departure order was not sought.
In support of the appellant father’s case that the monetary figure of $133,000 appearing in sub-paragraph (c) (or (iii)) of paragraph 1 of the orders of 29 April 2009 was wrong, counsel for the appellant father referred us to the following passage at page 15 of his reasons (emphasis added):
6.From 1 January 2005 to 1 July 2005 [the father] was assessed to pay child support for two children on a child support income amount of $85,227.00, producing an assessment of $1,626.25 per month. By this time CCD had merged with SKM and [the father] was in receipt of a salary of $94,067.00, as part of a total remuneration package in excess of $104,000.00. He had increased his salary sacrificing for his motor vehicle and was paying $2,500.00 for on site parking.
Counsel also referred us to passages at pages 9 and 14 of the Magistrate’s reasons for judgment where the father’s salary of $94,067.00 in the period 1 January 2005 to 1 July 2005 was discussed.
In the first of those passages there was a reference to a letter dated 4 November 2004 from the father’s employer which was in evidence before his Honour and which explained the father’s salary package (being $104,074.13) for the period in question and the actual amount of salary for payroll purposes (which was in fact only $91,567 but which would have been $94,067 if a car parking fee had not been deducted). That letter had not been included in the appeal books but the respondent mother was helpfully able to provide it to us.
We were thus able to be satisfied that the figure of $94,067 should (consistently with his Honour’s approach to the calculation of the father’s child support income for his other departure orders) have been the figure used for the departure orders for the period 1 January 2005 to 1 July 2005, and that the figure of $133,000 which appeared in sub-paragraph (c) (or (iii)) of paragraph 1 of his Honour’s order of 29 April 2008 was thus erroneous.
Overall, therefore, we were satisfied that the three errors which the father asserted had been made in paragraph 1 of the orders of 29 April 2008 were in fact made. The father’s appeal would therefore have to succeed. There remained, however, the question of leave to appeal.
The need for leave to appeal
Section 102 of the Child Support (Assessment Act) 1989 (Cth) provides that no appeal can be brought against an order made under that Act without the appeal court giving the appellant leave to appeal.
Generally, before leave to appeal will be granted, it must be demonstrated that there has been an error of principle in the making of the order sought to be appealed or that the order will result in substantial injustice. However, in relation to child support orders, it is necessary to remember that such orders usually impact on the financial position of the parties and this is a matter which the court must also take into account in deciding whether to grant leave to appeal.
Given that we have identified clear errors in this case and given that those errors will impact adversely on the father’s financial position, we consider that we should grant him leave to appeal.
We would then allow the appeal and amend the order in the manner discussed above.
Other matters raised in the parties’ summaries of argument
At the conclusion of the appellant father’s summary of argument an issue was raised concerning the suggested need for a change to paragraph two of the orders of 29 April 2008, on account of changes in the father’s circumstances after July 2007.
However, as no ground of appeal directed to this matter was relied on before us and there was no application to adduce fresh evidence, this matter could not be pursued before us.
Similarly, in her summary of argument the mother appeared to seek a further order but unspecified order relating to the period 1 November 2004 to 30 June 2005. She also appeared to seek a variation to paragraphs 2 and 4 of the orders of 29 April 2008, apparently for enforcement purposes. Particularly in the absence of any cross appeal by the mother, these are not matters with which this appeal court could determine. But in any event it would seem that the matters raised by the mother are matters requiring determination at first instance.
Costs of the appeal
Given the success of the appeal, we are of the view that no order for costs in relation to the appeal was appropriate, but rather that we should grant the parties’ applications for certificates under the Federal Proceedings (Costs) Act 1981 (Cth).
I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 3 July 2009
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