WROE & SYME
[2010] FamCAFC 177
•16 September 2010
FAMILY COURT OF AUSTRALIA
| WROE & SYME | [2010] FamCAFC 177 |
| FAMILY LAW - APPLICATION TO EXTEND TIME – Application to extend time to seek leave to appeal, and if leave granted to appeal order of Federal Magistrate made under s 125 of the Child Support (Assessment) Act 1989 (Cth). FAMILY LAW - WHERE APPLICATION NOT FILED IN TIME PROVIDED IN RULES – Where application made to amend order under slip rule – Where mistake made as to the operative date of the Federal Magistrate’s orders – No substantial prejudice to husband by reason of delay. FAMILY LAW - PROPOSED GROUNDS OF APPEAL – Where proposed grounds of appeal assert no order for the Federal Magistrate to vary order under s 129 of the Child Support (Assessment) Act 1989 (Cth) – Application was properly before Federal Magistrate – No merit to proposed ground – Where it was asserted the Federal Magistrate made a departure order without consideration of s 117 of the Child Support (Assessment) Act 1989 (Cth) – Order made by Federal Magistrate was not a departure order - Balance of proposed grounds of appeal incompetent – Where error of principle or substantial injustice not disclosed in proposed grounds of appeal – No utility to the appeal – Where parties have remedy by way of administrative review of child support assessment, or further application to Court in changed circumstances to vary orders made under s 124 and s 125 of Child Support (Assessment) Act 1989 (Cth) – Application dismissed |
| Child Support (Assessment) Act 1989 (Cth) - s 102A, s 117, s 123(1), s 124, s 125, s 129 Family Law Act 1975 (Cth) - s 94AAA |
| Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Ms Wroe |
| RESPONDENT: | Mr Syme |
| FILE NUMBER: | SYC | 3519 | of | 2007 |
| APPEAL NUMBER: | EA | 68 | of | 2010 |
| DATE DELIVERED: | 16 September 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 12 August 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 March 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 247 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Maclarens Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Blanchfield Nicholls Partners |
Orders
The application of the wife for an extension of time in which to seek leave to appeal Order 3 of Federal Magistrate Altobelli made 18 March 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Wroe & Syme is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 68 of 2010
File Number: SYC 3519 of 2007
| Ms Wroe |
Applicant
And
| Mr Syme |
Respondent
REASONS FOR JUDGMENT
Introduction
By application in an appeal filed on 4 June 2010 Ms Wroe (“the wife”) seeks an extension of time to file an application for leave to appeal, and if leave is granted, to appeal Order 3 of orders made by Federal Magistrate Altobelli on 18 March 2010 as subsequently amended by the slip rule. Order 3 provides:
That pursuant to s.125 of the Child Support (Assessment) Act 1984 [sic] the annual rate of child support payable by the husband pursuant to any assessment shall be reduced by the amounts paid by the husband pursuant to Order 2, and the annual rate of child support shall be reduced by 50 percent.
The application is neither opposed nor consented to by Mr Syme (“the husband”).
The order, the subject of the proposed application for leave to appeal, was made at the conclusion of the rehearing of the parties’ property proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) after a successful challenge by the husband to orders made by Federal Magistrate Sexton on 3 June 2008, including Orders 7 to 11 of the Federal Magistrate’s orders.
Evidence
The wife’s application is supported by an affidavit of her solicitor, Mr T sworn 1 June 2010. The gravamen of his evidence is that he mistakenly thought the time in which to file an application for leave to appeal was from the date of the order amended under the slip rule, not the date of the order. Mr T acknowledges he was instructed by the wife to file an application for leave to appeal at the time the original orders were made.
Background
To properly consider this application it is necessary that I refer to some of the relevant background.
In my reasons for judgment published 28 May 2009, at paragraph 1, I referred to the orders made by Federal Magistrate Sexton as follows:
On 3 June 2008 Sexton FM made orders adjusting the property of [Mr Syme] (“the husband”) and [Ms Wroe] (“the wife”) under s 79 of the Family Law Act 1975 (Cth) (“the Act”). Her Honour divided the parties’ assets, which she found to be $1,484,580.00 as to 62 per cent or $920,439.60 in favour of the wife and 38 per cent or $564,140.40 in favour of the husband. Her Honour also made an order dismissing a departure application in respect of child support for the parties’ two children brought by the husband under s 117 of the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”), but she went on to make an order under s 124 of that Act that the husband pay 75 per cent of the children’s school fees and expenses. The Federal Magistrate determined under s 125 of the CSA Act that the children’s school fees and expenses should not be taken into account for the purpose of the husband’s liability to pay child support pursuant to an administrative assessment.
At paragraphs 70 and 71 of my reasons, I referred to Sexton FM’s reasons for judgment in respect of s 75(2) factors as follows:
70.Her Honour then, foreshadowing the orders she proposed to make pursuant to s 124 of the CSA Act, said:
… As a result of these Orders, the husband will pay 75% of the children’s tuition fees and school related expenses at [Z School], currently under $30,000 per annum. He will also pay a periodic sum assessed by the Agency, based on his income presently capped at approximately $113,000, the wife’s income and the amount of time the children spend with him. …
71.Whilst noting the effect of her proposed orders was that the husband’s periodic liability would be ‘significantly less than his current periodic liability’ he would have an obligation to pay approximately $29,000.00 per annum in school related expenses. Her Honour indicated that she would take the husband’s greater child support liability into account in assessing the adjustment in favour of the wife overall.
At paragraph 85 of my reasons, I summarised the effect of the wife’s Amended Response before the Federal Magistrate as follows:
In her Amended Response to an Application for Final Orders the wife sought an order pursuant to s 124 of the CSA Act that the husband provide child support for the children otherwise than in the form of periodic payment, specifically that the husband pay 75 per cent of the school fees and all associated costs for the children to attend [Z School], together with 75 per cent of all of the costs and expenses associated with the children’s extra curricular and sporting activities, private health insurance and 75 per cent of all medical, dental and orthodontic expenses not otherwise covered by private health insurance.
I then went on to note that at the commencement of the trial the husband sought a departure order such that the rate of child support to be paid by him should be $2,200.00 per month. At paragraph 91, I observed the following:
Having discussed the husband’s application for departure, which she rejected, and to which there is no challenge in this proposed appeal, her Honour turned to consider the wife’s application for periodic child support commencing at paragraph 111 of her reasons. Her Honour noted that the wife’s counsel relied on s 117(2)(b)(ii) of the CSA Act and recorded the parties’ agreement to enrol the children at a private school. Her Honour then set out the wife’s further contentions, namely given the earning capacity of the husband, compared to her gross annual income, that the husband should be required to contribute 75 per cent of the children’s tuition fees and other school related expenses.
The husband agitated two grounds of appeal if leave was granted to challenge Sexton FM’s child support orders. The errors asserted were summarised by me. Crucially I noted, at paragraph 101:
Counsel for the wife submitted that the husband’s application for leave to appeal was, of necessity, confined to whether or not her Honour had erred in determining pursuant to s 125(2) that school fees and expenses be payable in addition to the assessment and that her Honour had discharged her obligation in paragraph 181 of her reasons in finding ‘special circumstances’. The wife’s counsel submitted that if I found appealable error then I would not be able to re-exercise the discretion, firstly, because of the inadequacy of the affidavit on which the husband sought to rely by way of further evidence and because there was no evidence before me of the effect of the amendments to the CSA Act which came into effect on 1 July 2008.
At the conclusion of my reasons, I explained there was an error of principle, leave should be granted, and Orders 9, 10 and 11 of the Federal Magistrate’s orders set aside. Those orders were as follows:
9.The payments referred to in Order (8) not to be credited against any administrative assessment for child support for which the husband is responsible to make payment.
10.The payments referred to in Order (8) not be used by either party as a basis for departure from any Child Support Agency assessment including as a non-agency payment.
11.The husband pay child support in accordance with the Child Support Agency’s assessment from 1 January 2008, such assessment to be re-calculated from 1 January 2008 to exclude any component for school fees or school related expenses.
I did not, nor was I asked to, consider Sexton FM’s dismissal of the husband’s departure application. Thus, the administrative assessment was not set aside and neither party was precluded from seeking an administrative review at any future time. It is appropriate that I set out the relevant orders made by Federal Magistrate Sexton which remained in force at the time of the hearing before Altobelli FM:
…
6. The husband’s application for departure from the current child support assessment be dismissed.
7. Until each child completes his secondary education, or attains the age of 18 years, whichever is the later, the husband be responsible for the children’s private health cover.
8. Pursuant to s.124 of the Child Support (Assessment) Act 1989 the husband pay to the wife 75% of the following expenses of the children relating to their attendance at [Z School] from 1 January 2008 until each child completes his schooling:
(a) Tuition fees;
(b) Local excursion fees;
(c) Uniform costs including sports uniforms, school shoes and sports shoes;
(d) Other compulsory expenses relating to the children’s attendance at the school;
(e) Extra curricular fees including costs of equipment required for those extra curricular activities, provided that the parties have agreed in writing to the child enrolling in such extra curricular activity.
…
12. Order (8) and (11) be implemented as follows:
(a) The wife forthwith provide the husband with written confirmation of the account name, BSB and account number into which she requires the funds due to her to be paid;
(b) The wife forthwith provide the husband with copies of invoices, receipts relating to expenses listed in Order (8) from 1 January 2008 and the husband to pay the wife the amount owed to the wife to give effect to Order (8) within a further 14 days;
(c) The wife otherwise forward a copy of invoices or receipts (if already paid) within 7 days of her receipt of such invoices or receipts relating to expenses listed in Order (8);
(d) The husband transfer/deposit the amount due to the wife’s account within 14 days of receipt of invoices or receipts;
(e) The husband forthwith serve a sealed copy of these Orders on the Registrar of the Child Support Agency with a request that his periodic child support liability be re-calculated from 1 January 2008 in accordance with these Orders as soon as practicable.
…
Federal Magistrate Altobelli correctly recorded the orders made by me exercising the appellate jurisdiction of the Court in paragraph 3 of his reasons. The Federal Magistrate went on to say, at paragraph 5:
For all practical purposes, therefore, I have before me competing applications for property settlement, and for various orders under the Child Support (Assessment) legislation.
I note the Federal Magistrate did not, at this point in his reasons, specify what the competing applications under the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”) were. However, at paragraphs 8 and 9 of his reasons, the Federal Magistrate described the competing applications as follows:
8.In the present proceedings, the husband asserts that there should be a finding as to contribution expressed as to 60 percent in his favour and 40 percent to the wife. He asserts that there should be no adjustment under section 75(2). The husband claims that an order for payment of cash should be made in his favour. The husband also makes an application under the Child Support (Assessment) Act, the effect of which is to discharge or vary order 8 made by Sexton FM (i.e., that he pay 75 percent of the children’s schooling expenses) and that otherwise his assessment to pay child support be reduced, and or credit be given for payment he makes for the benefit of the children. It should be borne in mind that order 8 made by Sexton FM remains intact.
9.The wife’s application before the court is that contribution should be assessed as being equal, and that a 10 percent adjustment should be made in her favour under section 75(2), thus leading to an overall settlement of 60 percent in her favour. She seeks a cash payment from the husband in order to implement this. In addition, she resists the husband’s application for child support orders and seeks orders to the effect that the payments that the husband currently makes pursuant to order 8 of Sexton FM, not be credited against administrative assessment for child support, or be used as the basis for departure of any assessment.
The rehearing of the property proceedings appears to have been agitated on the basis that the husband again sought to have an application heard under the CSA Act to discharge or vary Order 8 (which order was not challenged in the appeal against Federal Magistrate Sexton’s orders). From the “Minute of Orders Sought On Behalf of the Applicant Husband” attached to the husband’s “Summary of Argument” dated 8 July 2009 the husband sought the following orders:
...
2.That pursuant to s129 of the Child Support (Assessment) Act 1984, Order 8 of the orders dated 3 June 2008 be discharged.
3.In the event that the Court declines to make order 2 hereof, Order 8 of the orders dated 3 June 2008 be varied to read as follows;
‘That pursuant to s.124 of the Child Support (Assessment) Act 1989 the husband pay to the wife 50% of the following expenses of the children relating to their attendance at [Z School] from 1 January 2009 until each child completes his secondary education:
(i)tuition fees;
(ii)local excursion fees;
(iii)uniform costs including sports uniforms, school and sport shoes;
(iv)other compulsory expenses relating to the children’s attendance at the school;
(v)extra curricular activities including costs of equipment required for those activities, provided that the parties have agreed in writing to the child enrolling in such extra curricular activity.’
4.That pursuant to s125 of the Child Support (Assessment) Act 1984 [sic] the annual rate of child support payable by the husband pursuant to any assessment shall be reduced by the amounts paid by the husband pursuant to order 3, and the annual rate of child support shall be reduced by 50%.
5.That in the event that the court declines to make orders 2 or 3 and 4 hereof, and pursuant to s125 of the Child Support (Assessment) Act 1984 [sic] the annual rate of child support payable by the husband pursuant to any assessment shall be reduced by the amounts paid by the husband pursuant to order 8 of the orders made on 3 June 2008, and the annual rate of child support shall be reduced by 100%.
6.That the wife pay the husband’s costs of and incidental to these proceedings.
I do not have the benefit of the complete transcript of the proceedings before the Federal Magistrate, however, a reading of the transcript for the first day of the hearing reveals no complaint was made by the wife’s counsel that the Federal Magistrate should not hear and determine the variation application.
Relevant statute law and rules
Section 102A(1) of the CSA Act provides that an appeal, with leave, lies to the Family Court of Australia. It provides as follows:
(1) An appeal lies, with the leave of the Family Court, to the Family Court from:
(a) a decree of the Federal Magistrates Court exercising original jurisdiction under this Act; or
(b) a decree or decision of a Federal Magistrate exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Also relevant are s 102A(2) and s 102A(4) of the CSA Act. They provide as follows:
(2) The jurisdiction of the Family Court in relation to an appeal under subsection (1) or (1A) is to be exercised by a Full Court unless the Chief Judge of the Family Court considers that it is appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a single Judge.
…
(4) An application for leave to appeal under subsection (1) or (1A) is to be made within:
(a) the time prescribed by the standard Rules of Court; or
(b) such further time as is allowed under the standard Rules of Court.
Sections 94AAA(10), (11) and (12) of the Act are also relevant. They provide:
(10) Applications of a procedural nature, including applications:
…
(e) for an extension of time within which to file an application for leave to appeal; or
…
may be heard and determined by a single Judge or by a Full Court.
(11) The standard Rules of Court may make provision enabling applications of a kind mentioned in subsection (10) to be dealt with, subject to conditions prescribed by the standard Rules of Court, without an oral hearing.
(12) An appeal does not lie to a Full Court from a decision of a single Judge exercising jurisdiction under this section.
Chapter 22 of the Family Law Rules 2004 (“the rules”) deals with appeals.
Rule 22.02 sets out how an appeal is to be commenced, namely by filing a Notice of Appeal.
Rule 22.03 provides that a Notice of Appeal must be filed within 28 days after the order appealed from is made. Rule 22.11 provides that the filing of an appeal does not operate as a stay of the operation or enforcement of the order in respect of which the appeal is filed.
Relevant legal principles – application for leave to appeal out of time
The relevant principles to be applied by a Judge in deciding whether it is appropriate to extend time for filing an appeal are set out in Gallo v Dawson (1990) 93 ALR 479. These principles are not completely identical to the principles to be applied in dealing with an application to extend time for leave to appeal. The applicable principles in the latter circumstance, albeit in the context of the Federal Court Rules, are set out by Lindgren J in Sharman License Holdings Ltd and Anor v Universal Music Australia Pty Ltd & Ors [2005] FCA 802 as follows:
20.In order for the Court to allow further time for the filing and serving of an application for leave to appeal from an interlocutory judgment, the following conditions must be satisfied:
1.There must be a satisfactory explanation for the delay beyond the seven-day time limit fixed by O 52 r 10(2)(b) (see, for example, Deighton v Telstra Corporation Ltd (unreported, Full Court, 17 October 1997));
2.The application for leave to appeal must have such prospects of success as not to render the extending of time an exercise in futility. Since the test for the granting of leave to appeal from an interlocutory judgment is that the decision must be attended with sufficient doubt to warrant its being reconsidered by an appellate court, and that substantial injustice would result if leave were to be refused, supposing the decision to have been wrong (Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398–400), in principle the question on an application for an extension of time is whether this test has sufficient prospects of being satisfied, to warrant granting the extension. In practice, the debate and treatment of the ‘arguable error’ question on an application for an extension of time, will be no different from what the debate and treatment of it would be on the application for leave to appeal itself.
3.Since an applicant for extension of time within which to appeal as of right must show ‘special reasons’ (O 52 r 15(2)), nothing less should be required of an applicant for an extension of time within which to apply for leave to appeal (Deighton v Telstra Corporation Ltd, above).
Thus it may be seen in the context of the Federal Court Rules the test for the granting of an extension of time for leave to appeal is more rigorous than the test applied in respect of an extension of time in which to appeal. In the latter case the granting of leave is not automatic but involves the exercise of discretion. The discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. In determining whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the nature of the litigation and the consequences for parties of the grant or refusal of the leave.
The exercise of discretion also involves an assessment of the prospect of a successful appeal.
Discussion
To properly consider this application it is necessary for me to examine the orders the subject of the proposed application for leave to appeal and the proposed grounds of appeal. I do not consider it is necessary to discuss the reason why the application was not filed within the time provided by the rules. The delay was not significant. It is not asserted to have caused prejudice to the husband.
The Federal Magistrate initially published his reasons and made orders on 18 March 2010. Orders 2 and 3 of the Federal Magistrate’s orders at that time read as follows:
(2)Order 8 of the orders dated 3 June 2008 be varied to read as follows:
‘That pursuant to s.124 of the Child Support (Assessment) Act 1989 the husband pay to the wife 50 percent of the following expenses of the children relating to their attendance at [Z School] from 1 January 2010 until each child completes his secondary education:
(a)Tuition fees;
(b)Local excursion fees;
(c)Uniform costs including sports uniforms, school and sport shoes;
(d)Other compulsory expenses relating to the children’s attendance at the school;
(e)Extracurricular activities including costs of equipment required for those activities, provided that the parties have agreed in writing to the child enrolling in such extracurricular activity.’
(3)That pursuant to s.125 of the Child Support (Assessment) Act 1984 [sic] the annual rate of child support payable by the husband pursuant to any assessment shall be reduced by the amounts paid by the husband pursuant to Order 2, and the annual rate of child support shall be reduced by 50 percent.
No change was made to Order 3 as a result of the amendment pursuant to the slip rule. However, the Federal Magistrate added the following notation to the orders as amended under the slip rule:
NOTATION:
In order to provide guidance to the Child Support Agency and the parties about the interpretation and implementation of these Orders, the Court notes that it is the intention of Orders (2) and (3) above that the Child Support Agency:
1.Firstly, assess the annual rate of child support that the husband would pay from time to time; and
2.Thereafter, reduce this amount by 50% pursuant to s.125 and Order (3) above; and
3.Then, in addition assess the Husband to pay 50% of the school expenses referred to in Order (2) above, pursuant to s.124.
It may be seen that the husband’s variation application under s 129 was in essence seeking that “non-agency payments” of school fees and expenses be credited against his administrative assessment which had not been disturbed as a result of the orders of Federal Magistrate Sexton. In considering whether to make such an order the Federal Magistrate was required to take into account the matters set out in s 129(3) and (4) of the CSA Act. Section 129(4) required the Federal Magistrate to have regard to s 117(4), (6), (7), (7A) and (8) and under s 125 specify the relationship between the order and the assessed child support. The Federal Magistrate summarised these requirements at paragraph 105 of his reasons. I pause here to note he was not required if varying the order made under s 124 to have regard to s 117(2), (2B), (2C), (3A), (3B) or (3C).
It is to be remembered that the proposed appeal is an appeal against the Federal Magistrate’s orders and the effect of the orders must be considered on their face (see Rand & Rand [2010] FamCAFC 167 at paragraphs 92, 104 to 108).
The wife’s solicitor has annexed to his affidavit proposed grounds of appeal if time is extended to file an application for leave to appeal and leave is granted. The grounds relied on assert that the Federal Magistrate erred by:
·failing to consider and apply the provisions of s 117 of the CSA Act;
·purporting to make an order under s 129 when there was no relevant order in force to modify (under s 124);
·failing to make findings there were grounds for departure as required under s 117(1)(b)(i) of the Act; and
·failing to consider s 117(2).
As I have already noted, Order 8 of Federal Magistrate Sexton’s orders was not set aside. That order was made under s 124 of the CSA Act. The application to vary that order under s 129 of the CSA Act was properly before the Federal Magistrate. I am satisfied there is therefore no merit in proposed ground 1.2.
The other substantive grounds of appeal are agitated on the basis that the Federal Magistrate made, it appears without application before him to do so, a departure from the administrative assessment, or a consequence of the wording of Order 3 of the Federal Magistrate’s orders was, in effect, a departure from the administrative assessment which remained undisturbed as a result of the orders of Federal Magistrate Sexton.
It is relevant at this point in my reasons that I set out s 125 of the CSA Act. It provides as follows:
(1) If the court makes an order under section 124, the court must state in the order whether the annual rate of child support payable by the liable parent under any relevant administrative assessment is to be reduced, in the manner specified under subsection (3), by the child support ordered to be provided by the liable parent.
Note:If the court makes a statement under this section that the annual rate of child support is to be reduced, the Registrar must make a provisional notional assessment under section 146B.
(2) The court may state that the annual rate of child support payable by the liable parent is not to be so reduced only if it is satisfied that, in the special circumstances of the case, 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;
that the annual rate of child support not be reduced by the child support ordered to be provided.
(3) If the court states in the order that the annual rate of child support is to be reduced by the child support ordered to be provided, the court must also state in the order either:
(a) that the annual rate of child support payable is to be reduced by a specified amount that represents an annual value of the child support to be provided; or
(b) that the annual rate of child support payable is to be reduced by 100% or another specified percentage that is less than 100%.
(4) The court may, under subsections (1) and (3), make different provision in relation to different child support periods and in relation to different parts of a child support period.
(5) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a statement of the kind referred to in subsection (2), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(5A) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(6) In determining whether it would be otherwise proper to make a statement of the kind referred to in subsection (2), the court must have regard to the matters mentioned in subsection 117(5).
(7) Subsections (5), (5A) and (6) do not limit the matters to which the court may have regard.
It is necessary then to consider the Federal Magistrate’s reasons and the wording of Order 3. At paragraph 112 the Federal Magistrate recorded:
I acknowledge that there is some fluidity in the husband’s income. For example, the superannuation benefits he receives are not disposable income in his hands. Conversely, he would probably receive a taxation benefit in relation to at least part of his car allowance, so this is more easily treated like cash in his hands. I accept there is scope for his commissions to increase in future beyond $114 per week, a figure which I accept accurately represents an average of his current level of commissions. I would not want to make any determination that binds either the wife, or the Child Support Registrar, from reviewing an appropriate level of support for these children in future, should the husband’s income change. I appreciate that gives no finality, or even certainty, to the orders I make, but I cannot see how an order could be just and equitable and otherwise proper if it does not take into account the husband’s actual income from time to time. This applies with equal force to the wife’s income.
At paragraphs 115 to 118 of his reasons, the Federal Magistrate said:
115.I also note that the husband’s evidence in cross-examination was that he preferred an outcome whereby he paid half the school fees and expenses, and half of any assessment from time to time. He thought that this would be the equivalent of almost $20,000 per annum, or about $374 per week. In fact, these figures are not, strictly speaking, correct but this evidence is significant because it indicates what the husband in fact believes to be a reasonable amount of child support that he could pay. On the husband’s own evidence, the annual assessment is $11,640 per annum, and the order 8 expenses are $32,185 per annum, totalling $43,645. Half of that is $21,822, or $419 per week.
116.If one considers the total costs associated with the children of the marriage, including school expenses, the wife asserts it is $1,457 to her and the husband $651 to him, or a total of $2,108 per week. It must be born in mind that neither challenge the reasonableness of the expenses asserted by the other. I accept therefore that it is reasonable and appropriate on the facts of this case. This means that (excluding child support paid) the husband bears about 30 percent of the costs associated with the children in circumstances where he has them in his care about 40 percent of the time. The wife bears about 70 percent of the costs of the children in circumstances where she has them for about 60 percent of the time. This approach, however, fails to take into account the child support paid by the husband.
117.The total costs of the children is $2,108 per week. The husband pays weekly child support to the wife of equivalent to $839 per week. In other words, he is paying to the wife about 57 percent of her costs associated with the children, as well as 100 percent of his costs when the children are with him. In other words, each week he pays $1,510 out of the total costs of the children $,2108, [sic] or 71 percent of the costs. From this perspective, in a situation where the financial circumstances of the husband and the wife are roughly equal, and he has the children about 40 percent of the time, it is hard to see how the current arrangement is just, equitable, and otherwise proper.
118.The totality of the evidence before me leads me to conclude that:
a)Even if I vary the orders so that the husband pays half the school fees and associated expenses, and half the amount of child support as would otherwise be assessed, the wife would still be able to meet the shortfall having regard to her income, expenses, assets, liabilities and resources. In other words, I am reasonably satisfied that varying the orders will not prejudice or cause hardship to the children in any way.
b)Prima facie, the current distribution of responsibility for contribution towards meeting the reasonable costs of the children is unfairly distributed having regard to the financial circumstances of the husband and the wife.
c)There has been a significant change in the financial circumstances of both the husband and the wife since the order was made by Sexton FM.
d)The property settlement effected by these orders I make does not detract from any of the considerations referred to in the present context.
e)It is just and equitable, and otherwise proper, to reduce the husband’s responsibility to contribute to school feels [sic] and expenses to 50 percent, and to pay 50 percent of the amount of child support that would be otherwise assessed. On the evidence before me this means he would be paying about $412 per week towards the children’s education expenses, and $110 per week by way of periodical child support. This means the contribution that the husband makes towards all costs associated with the children is:
School expenses: $412
Child support expenses: $110
His own costs $651
$1,173
Having regard to what the Federal Magistrate said, in paragraphs 115 to 118 of his reasons, it is clear that his Honour determined it was just and equitable between the parties to reduce the assessed amount of child support under s 125(3)(b) by 50 per cent, to take into account the husband’s liability to pay 50 per cent of the school fees and expenses.
I am satisfied that the Federal Magistrate’s reasons clearly disclose that he did not intend that the child support assessment which the husband was assessed to pay should be reduced by 50 per cent of the school fees and expenses and then that adjusted assessment be reduced by 50 per cent. The Federal Magistrate clearly intended that the husband should have a liability to pay 50 per cent of the school fees (this determination being reflected in Order 2), but rather than reducing the statutory assessment by a precise figure, or a proportion of it, that the statutory assessment from time to time should be reduced to reflect that “in kind” or “non-agency” payment by reducing it by 50 per cent.
I am satisfied that Order 3 of the Federal Magistrate’s orders, which I accept is ambiguous (but is in the form of orders sought by the husband), does not reflect his reasons, and that error is amenable to correction under r 16.05(2)(e) of the Federal Magistrates Court Rules 2001 (“the slip rule”) or, if deemed necessary, further application could be made to the Federal Magistrate for interpretation of his order (see Rand & Rand).
The Federal Magistrate was not asked to, nor did he undertake to, determine a departure application. Thus, proposed grounds 1.3, 1.4, 1.5 and 1.6 are incompetent. It follows no error of principle having been demonstrated in the proposed grounds, or substantial injustice caused to the wife, the almost certain outcome if an extension of time was granted, would be that leave to appeal would be denied.
I am satisfied that the proposed grounds of appeal are misconceived and without merit. Further the parties have remedies available to them in the event of change of circumstance. The statutory assessment of child support may be subject of administrative review if circumstances warrant, or an application made be made to a Court to vary Order 2 if relevant grounds exists. Thus the proposed appeal has no utility. Accordingly I find that strict compliance with the rules will not work an injustice on the wife and I propose to dismiss the application for an extension of time in which to file an application for leave to appeal.
Costs
No submissions were made to me in respect of costs of this application. Any application for costs can be made in the usual manner.
I certify that the preceding forty two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Boland delivered on 16 September 2010.
Associate:
Date: 16 September 2010
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