FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Yanda & Jacome [2023] FedCFamC1A 116
Appeal from: Jacome &Yanda [2022] FedCFamC2F 1791 Appeal number(s): NAA 15 of 2023 File number(s): BRC 7039 of 2022 Judgment of: RIETHMULLER J Date of judgment: 18 July 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL –CHILD SUPPORT – Whether the Court has the power to make a non-periodic child support order under s 124 of the Child Support (Assessment) Act 1989 (Cth) to increase the overall amount of a child support obligation beyond the amount of an existing periodic assessment – Where the appellant was ordered to pay private school fees – Where appellant had significant tax debt – Whether tax debt taken into account when considering whether to order non-periodic child support pursuant to the Child Support (Assessment) Act 1989 (Cth) Legislation: Child Support (Assessment) Act 1989 (Cth) ss 117, 124, 125, Div 5 of Pt 7
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Cases cited: Ivanovic v Ivanovic (1996) FLC 92-689; [1996] FamCA 41
Lightfoot v Hampson (1996) FLC 92-663; [1996] FamCA 8
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Ryan & Ryan [1994] FamCA 175
Number of paragraphs: 23 Date of hearing: 4 July 2023 Place: Heard in Brisbane, delivered in Parramatta Counsel for the Appellant: Mr Shoebridge Solicitor for the Appellant: Cooper Family Law Counsel for the Respondent: Mr Linklater-Steele Solicitor for the Respondent: Rostron Carlyle Rojas Lawyers ORDERS
NAA 15 of 2023
BRC 7039 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR YANDA
Appellant
AND: MS JACOME
Respondent
order made by:
RIETHMULLER J
DATE OF ORDER:
18 JULY 2023
THE COURT ORDERS THAT:
1.The husband be granted leave to appeal and the appeal be allowed.
2.The Orders made on 23 December 2022 be set aside.
3.The matter be remitted for re-hearing by a judge of the Federal Circuit and Family Court of Australia (Division 2).
4.The husband be granted a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 husband in respect of the costs incurred by the husband in relation to the application for leave to appeal and the appeal.
5.That the wife be granted a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), 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 husband in respect of the costs incurred by the wife in relation to the application for leave to appeal and the appeal.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s…
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CaseChat Overview and Summary
In the case of Yanda & Jacome, the husband sought leave to appeal a judgment made under the Child Support (Assessment) Act 1989 (Cth). The husband and wife, who were married for 15 years and have two children aged 13 and 14, were in dispute over whether the husband could afford to meet the private school fees of their children. The primary judge had ruled in favour of the wife, ordering the husband to pay the full amount of the private school fees in addition to his existing child support payments. The husband argued that the judge had erred by making an order that increased his child support obligation beyond the periodic rate of the child support assessment, without a corresponding credit against the periodic rate.
The legal issue before the court was whether the primary judge had the power to make a non-periodic child support order that increased the overall obligation of the husband beyond the periodic rate of the child support assessment. The husband argued that there is no power to make such an order, and that the decision in Lightfoot v Hampson should not be followed. However, the court found that the reasoning in Lightfoot v Hampson was valid and should be followed. The court also found that the primary judge had failed to take into account the husband's tax debt, which resulted in a significant injustice.
The court granted the husband leave to appeal and allowed the appeal. The court found that the primary judge had erred in law by not taking into account the husband's tax debt, and that this resulted in a significant injustice. The court remitted the matter for re-hearing, as there was limited material before the court on the relevant issues. The court also made orders for certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal. The court did not order that certificates issue with respect to the costs of the re-hearing, as the parties proposed filing further material for the purpose of the re-hearing, which could have been filed for the hearing before the primary judge.
The legal issue before the court was whether the primary judge had the power to make a non-periodic child support order that increased the overall obligation of the husband beyond the periodic rate of the child support assessment. The husband argued that there is no power to make such an order, and that the decision in Lightfoot v Hampson should not be followed. However, the court found that the reasoning in Lightfoot v Hampson was valid and should be followed. The court also found that the primary judge had failed to take into account the husband's tax debt, which resulted in a significant injustice.
The court granted the husband leave to appeal and allowed the appeal. The court found that the primary judge had erred in law by not taking into account the husband's tax debt, and that this resulted in a significant injustice. The court remitted the matter for re-hearing, as there was limited material before the court on the relevant issues. The court also made orders for certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal. The court did not order that certificates issue with respect to the costs of the re-hearing, as the parties proposed filing further material for the purpose of the re-hearing, which could have been filed for the hearing before the primary judge.
Orders
Orders of the court
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Background
Background to the litigation
As the husband seeks leave to appeal from a judgment exercising original jurisdiction pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Act”), the husband requires leave to appeal: see s 28(1)(a)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). To obtain leave to appeal, the husband must demonstrate that the decision of the primary judge was “attended by sufficient doubt to warrant it being reconsidered by the Full Court and [that] substantial injustice would result if leave were refused, supposing the decision to be wrong”: see Medlow & Medlow (2016) FLC 93-692 at [57]. BACKGROUND The husband and wife have two children, aged 13 and 14 years, respectively. They were married for 15 years, separating in November 2021. The husband is a medical professional and the wife works in administration. The children have been attending private school throughout their education. The issue before the primary judge was whether the husband has the financial capacity to meet the private school fees. The primary judge affirmed orders made by a Judicial Registrar for the husband to meet the entirety of the private school fees in addition to his existing periodic child support assessment.THE PROPOSED GROUNDS OF APPEAL The husband’s primary argument is that there is no power to make a non-periodic child support order that increases the overall obligation of the husband beyond the periodic rate of the child support assessment. That is, that the non-periodic support is limited to a sum that can be fully credited against the periodic rate. Whilst this argument was set out in Ground 4 of the husband’s Amended Notice of Appeal, it is convenient to deal with this ground first.Ground 44. That the Learned trial Judge erred by making an Order pursuant to s.124 of the Child Support (Assessment) Act when the effect of that Order was to increase the child support obligation of the Appellant over and above the obligation created by the existing assessment when there was no [application] before the Court under Division 4 of the Child Support (Assessment) Act 1991 to depart from the existing assessment. (Amended Notice of Appeal filed 24 March 2023) The majority of the Full Court in Lightfoot v Hampson (1996) FLC 92-663 (as followed in Ivanovic v Ivanovic (1996) FLC 92-689) found that orders can be made for non-periodic child support even if there is no corresponding credit against the periodic rate of child support. It is not disputed that the primary judge applied the reasoning of the Full Court in Lightfoot v Hampson, as her Honour was obliged to do. Rather, this ground turns upon the question of whether the decision in Lightfoot v Hampson should be followed. The husband argues that there are difficulties in the reasoning of the majority in Lightfoot v Hampson such that it should not be followed, and that the decision of Gee J in Ryan & Ryan [1994] FamCA 175 ought to be preferred. This is not the first occasion upon which the decision in Lightfoot v Hampson has been challenged on appeal. In Ivanovic, the Full Court considered Lightfoot v Hampson but declined to depart from the findings of the majority, although expressing concern as to the narrowness of the majority’s interpretation of the provisions, compared to the broader interpretation preferred by Kay J (who dissented in Lightfoot v Hampson).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The husband’s arguments with respect to Ground 2 and Ground 3 were also founded upon the primary judge not taking into account the husband’s tax debt, and therefore do not need to be separately addressed.CONCLUSION The husband has established an error of law on the part of the primary judge. When one has regard to the size of the tax debt, in the context of the husband’s income and expenses, the failure to take it into account results in a significant injustice. As a result, I grant the husband leave to appeal and allow the appeal. Both parties submitted that if the appeal were to be allowed it would be appropriate to remit the matter for a rehearing, given the limited material before the Court on the relevant issues. Importantly, there was little before the Court as to what part of the debt arose before or after separation (the parties having separated in November of the relevant financial year), whether funds sufficient to meet the debt had been deposited into the parties’ mortgage offset account by the husband prior to separation, or what other provision (if any) the husband had made to meet his tax liabilities. If the husband has no financial capacity of to meet the private school fees until the tax debt is met, consideration may be required as to whether the fees should be paid from the capital resources of the parties (which appear to be in excess of $4 million). I accept the parties’ submissions that in the circumstances of this case it is appropriate to make orders remitting the matter for re-hearing. As the appeal is allowed as a result of an error of law by the primary judge, the parties submitted that the appropriate costs orders were for certificates to issue under the Federal Proceedings (Costs) Act 1981 (Cth) with respect to the costs of the appeal. I accept these submissions. As the parties propose filing further material for the purpose of the re-hearing, which could have been filed for the hearing before the primary judge, I am not persuaded that it is appropriate to order that certificates issue with respect to the costs of the re-hearing. I make orders accordingly.
Ratio Decidendi
Legal Principle Established
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