Wong on Family Law
Wong on Family Law
Select topics on Family Law in Australia -- Spousal Maintenance, Child Maintenance and Child Support
Work-in-progress, 20 July 2025 (last updated)
[A] Spousal Maintenance
4 Steps: "[10] In MS & PS [2006] FamCA 588; (2006) FLC 93-268, Coleman J identified four matters the Court is to have regard to when deciding whether to make an order for spousal maintenance in the context of a marriage. The four steps are: (a) to what extent can an applicant for spousal maintenance support himself or herself; (b) what are the applicant’s reasonable needs; (c) what capacity does the respondent have to meet an order; and (d) if steps 1-3 favour an applicant, what order is reasonable having regard to section 75(2) of the Act.": Muniz & Farina [2025] FedCFamC2F 406.
Statutory framework:
> Brickley & Modine [2021] FCCA 520, [7]-[16].
> "The decision of Hall v Hall [2016] HCA 23 (“Hall v Hall”), the Hight Court set out the appropriate approach in considering an application for interim spousal maintenance as follows: 3. … The gateway to the operation of Pt VIII in relation to spousal maintenance is in s 72(1). That sub-section provides that “[a] party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately … having regard to any relevant matter referred to in [s] 75(2)”. 4. The liability of a party to a marriage to maintain the other party that is imposed by s 72(1) is crystallised by the making of an order under s 74(1). That sub‑section provides that, “[i]n proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part”. 5. A court exercising the power conferred by s 74(1) is obliged by s 75(1) to take into account the matters referred to in s 75(2) and only those matters. Those matters are presented as a comprehensive checklist. They include what s 75(2)(b) refers to as “the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment”. They also include, by virtue of s 75(2)(o), “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”. As noted in Hall v Hall (supra), the High Court confirmed that an applicant seeking orders for spousal maintenance carries the evidentiary burden as set out in s 140 of the Evidence Act. This can be particularly challenging in the context of an application for interim spousal maintenance. As the Full Court said in Edgar & Strofield (2016) FLC 93-711 at [15]: 15. However, the limits to an interim hearing are well known. Disputed issues of fact cannot be resolved at an interim hearing…. In this case it is not conceded that the gateway requirement referred to by the High Court in Hall v Hall (supra) is satisfied. That is, whether as a result of the health issues affecting the mother and her determination as to the extent of her necessary care of the children, she is unable to support herself adequately as contemplated by s 90SF(1)(b) of the Act. The issues to determine are therefore: (1) To what extent is the mother unable to support herself as a result of having the care of the children under the age of 18 years and issues relating to her mental health; (2) What are the mother’s reasonable needs; (3) What capacity does the father have to meet a spousal maintenance order if such an order was made; (4) If (1)-(4) favour an order for spousal maintenance being made by the Court, what order is reasonable having regard to s 90SF(3) of the Act. In Brown & Brown (2007) FLC 93-316 at [161] the Full Court summarised the principles to be applied as follows: • The word “adequately” is not to be determined according to any fixed or absolute standard. • The idea that “adequate” means a subsistence level has been firmly rejected. • Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard. • In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed. • It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately. • However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy. In that respect, I refer to Maroney & Maroney [2009] FamCAFC 45 where the Full Court said as follows:- 56. Once a party … establishes an entitlement to interim spousal maintenance, and such entitlement is quantified in accordance with that spouse’s reasonable needs, an order may be made notwithstanding that the liable spouse could only satisfy the order out of capital or borrowings against capital assets. In an application for spousal maintenance, it is necessary to distinguish between the expenses of the spouse seeking an order for spousal maintenance and the expenses of the children of the marriage (or relationship). (See Stein & Stein (2000) 25 Fam LR 727 (“Stein”). In determining the “reasonable ability” of a party to satisfy an order for interim spousal maintenance the Court is not confined to considering only that party’s income.": Wedekind & Nakano [2024] FedCFamC1F 590, [94]-[101] (Berman J).
> "In relation to the wife’s claim for spousal maintenance, the Full Court in Bevan & Bevan (1995) FLC 92-600 identified the requisite elements necessary to the making of a spousal maintenance order. The applicant for relief bears the onus of establishing that they are unable to support themselves adequately by reason of the matters set out in s 72 of the Family Law Act 1975 (Cth) (“the Act”), including having regard to any relevant matter referred to in s 75(2). If the applicant cannot establish an inability (which will not be inferred) to support themselves, then an order for maintenance cannot be made (see Rowan and Rowan (1977) FLC 90-310 and Stacy and Stacy (1977) FLC 90-324). What is adequate is not determined by reference to any fixed or absolute standard, but by reference to the matters referred to in s 75(2) of the Act (see Mitchell and Mitchell (1995) FLC 92-601 at 81,995). In Atwill and Atwill (1981) FLC 91-107, Nygh J at 76,792 held: “Adequately” imports relativity. Subsistence may be adequate for some applicants but not for others. It must be viewed in the light of para. (g) of sec. 75(2) “a standard of living that is in all the circumstances reasonable” … While in Wilson and Wilson (1989) FLC 92-033, their Honours held at 77,453: … A standard of living that in all the circumstances is reasonable for the party claiming maintenance is not necessarily the same standard as that enjoyed by the party who is ordered to pay maintenance. … Similarly, the standard of living that in all the circumstances is reasonable for the wife in this case, is not necessarily the same standard as that enjoyed during cohabitation. …": Eccheli & Eccheli [2024] FedCFamC1F 234, [34]-[37].
> allowance for wife's expenses referrable to the children? No: "In Kajewski and Kajewski (1978) FLC 90-472, Lindenmayer J dealt with an appeal from a magistrate's order for the payment of spousal maintenance. One of the matters argued was whether or not it was appropriate for the magistrate to have taken into account expenses of the wife which related to the children. His Honour said at 77,426-7:- "...it is quite clear that the figures taken by the Magistrate as the wife's expenses are the expenses which relate not only to herself but also to the two children who reside with her. This emerges clearly from pt. A sec. (3) of her Form 19 and from her oral testimony, especially at pages 13 to 14 of the depositions, where she gave evidence as to the apportionment of some of those expenses between herself and the children. In my opinion, the Magistrate was in error in so approaching his task in the circumstances of this case. There were no proceedings before him in relation to the maintenance of either of the children, and his only legitimate concern therefore was with the needs of the wife in respect of her own maintenance. Such a strict approach may be thought to involve some hardship upon the wife, but any other approach would involve an injustice to the husband. The wife chose to seek an increase in her own maintenance only, and not that of the child M. If, as a result of the strict approach which I propose, the wife were to feel herself disadvantaged, the remedy would lie in her own hands in the form of an application for increased maintenance for M..." In a further pre-1987 amendments case of Redman (1987) FLC 91-805; (1987) 11 Fam LR 411 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) allowed an appeal against an order made by Lawrie J for $400 per week interim maintenance, which sum was a global sum including the wife's needs and those of her children. Their Honour's said at FLC 76,079-81; Fam LR 413-5:- "Further it was pointed out that an application for spousal maintenance has to meet the threshold requirement of sec. 72 whereas an application for child maintenance is not subject to that threshold, because sec. 73 directs that the parties maintain the children according to their respective financial resources. Hence, a party who is quite able to support the children out of his or her own resources, can still call upon the other party to share that cost. The relevant considerations also differ: in relation to children there are the additional considerations set out in sec. 76(1). Hence, it was argued, that it was important that upon an application for both spousal and child maintenance, whether it be interim or permanent, separate orders be made under each heading. We are in general agreement with that submission. The next step in the argument was that it is not possible to make an order for spousal maintenance which includes expenditure not exclusively referable to that spouse and it is not possible to make an order for child maintenance in the absence of evidence as to the needs of the child or children concerned. This submission was based on the decision of the Full Court in Paradine and Paradine (1981) FLC 91,056; (1981) 7 Fam. L.R. 125. In that case the learned trial Judge had dealt with an application to vary child maintenance. The only evidence filed by the applicant wife set out the general costs of the household constituted by her and the two children of the marriage. There was no evidence, other than the payment of school fees, specifically referable to the needs of the children. Her Honour attributed one-third of the expenses listed by the wife to the children and made an order varying substantially the existing maintenance order.": Stein v Stein [2000] FamCA 102, [38]-[39].
"[31] Section 72 of the Act provides: Right of spouse to maintenance (1)A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b)by reason of age or physical or mental incapacity for appropriate gainful employment; or (c)for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2). [32] In Saxena and Saxena (2006) FLC 93-268 , Coleman J explained that, in determining whether to make an order for spousal maintenance, the Court should follow a four step process, as follows: a)Can the applicant support themselves adequately? b)If not, what are the applicant’s reasonable needs? c)What capacity does the respondent have to meet those needs? d)What order is reasonable, having regard to s 75(2)? [33] I will now address each of those issues. ... [47] The wife’s reasonable needs are to be assessed according to the amount that the wife requires for her own support, as opposed to what she requires in order to support her child: Stein v Stein (2000) FLC 93-004 . [48] According to the wife’s Financial Statement, she receives a rental income from the Tasmania property of $320 per week. The wife is also in receipt of government benefits of $611 per week. Pursuant to s 75(3) of the Act, I am required to disregard that entitlement in exercising my jurisdiction under s 74 of the Act. [49] This provision reflects the historical recognition of public interest considerations involved in spousal maintenance. For instance, in Hyman v Hyman [1929] All ER 245 at 258 Lord Atkin, said: …When the marriage is dissolved the duty to maintain arising out of the marriage tie disappears. In the absence of any statutory enactment the former wife would be left without any provision for her maintenance other than recourse to the poor law authorities. In my opinion, the statutory powers of the court to which I have referred were granted partly in the public interest to provide a substitute for this husband’s duty of maintenance and to prevent the wife from being thrown upon the public for support…. [50] Reference to the respective roles of husband and wife are of historical interest only. However, the public interest continues to be reflected in s 75(3) of the Act, which requires the Court, in determining a party’s responsibility to pay maintenance, to “disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit”. ...": Koyroyshs & Koyroyshs [2018] FamCA 840.
s 66M no duty to support step children -- abuse of process to use spousal maintenance proceedings to obtain such support: "By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children.": Stein v Stein [2000] FamCA 102, [50]; Gruit & Sloan [2019] FamCA 449, [20].
Payments to Spouse cannot be characterized as maintenance (cf contributions) unless requisite need established: “Counsel for the de facto wife’s contention that some or all of the payments made to the de facto wife might be characterised as maintenance must be rejected. The de facto wife could not, on the evidence, establish the required need. From separation in 2009 until mid-2013 the de facto wife was earning employment income in the de facto husband’s company at $54,000 per annum. At about the time she ceased employment she commenced living in a home owned by her current husband. The de facto wife received from the de facto husband’s self-managed superannuation fund $213,118 in 2015, the use of which goes unexplained. From mid-2013 the de facto wife rented out the Suburb B property and retained the rental proceeds without having to pay the mortgage, which was being paid by the de facto husband.”: Gadzen & Simkin [2018] FamCAFC 218, [61].
mental ill health on par with TPD, total unfitness for work: Tausen & Kemper [2025] FedCFamC2F 309.
Where spouse overreaching for spousal maintenance, obiter: "[76] The wife was chasing money by way of maintenance that she was never, in my view, realistically going to get. The dollars just weren’t there. With the greatest respect to Mr Fernon who worked hard to get the result he did, when senior counsel is left “scratching around” to find $17 worth of deductions from the husband’s expenses, you know the maintenance application is not as healthy as an applicant might like.": Palters & Murrily [2022] FedCFamC2F 425.
Assessment of financial need, exclusions, child expenses: "[13] The principles in relation to child support payments and their effect on a claim for spousal maintenance have been addressed in various cases, including Stein v Stein [2000] FamCA 102; (2000) 25 Fam LR 727 (Kay, Holden and Dessau JJ) at [47], [49], and [56] – [57], Carson & Hillman [2019] FamCAFC 42 (Strickland, Kent and Watts JJ) at [61], and Jabara & Gaber [2021] FedCFamC1A 26 (Ainslie-Wallace J (sitting alone in an appellate capacity) at [30]-[31]). A more recent practical application of these principles occurred in Kensit & Kensit [2022] FedCFamC1F 633 where Brasch J at [58] – [59] and [62] excluded from the wife’s income the amount she received from child support from the husband, and excluded from Part N of the wife’s Financial Statement expenses claimed for the children, when assessing an application for spousal maintenance. I propose to follow the approach of Brasch J in this matter, and counsel for the wife accepted that to be the correct approach.": Muniz & Farina [2025] FedCFamC2F 406.
[A.A] Interim Spousal Maintenance - Claims
See, Jacky Campbell, 'Show Me the (Interim) Money: Running Interim Spousal Maintenance Claims in the FCFCOA' (Forte Family Lawyers, 11 August 2023) <https://fortefamilylawyers.com.au/interim-spousal-maintenance-claims/>, archived at <https://archive.is/tdBrJ>.
[A.B] "Heads" of Maintenance
Eg, "[51] In terms of Part G of the wife’s Financial Statement, her weekly expenditure is, as follows: a)Income tax at $62; b)Rent at $500; c)Mortgage on the Tasmania property at $300; d)Rates, land tax and agents fees at $63; e)Comprehensive third party insurance at $9; f)Private health insurance at $22; g)Repayments in respect to a loan from her mother at $257; and h)Credit card repayments at $49. [52] Further, Parts N and O of the wife’s Financial Statement list her “other” weekly expenditure, as follows: a)Food at $220; b)Household supplies at $40; c)House repairs at $5; d)Electricity at $21; e)Telephone/Internet/television at $15; f)Petrol at $5; g)Motor vehicle maintenance at $6; h)Fares/car parking at $9; i)Clothing and shoes at $40; j)Medical, dental and optical (not including health insurance premiums) at $50; k)Entertainment/hobbies at $18; l)Holidays at $32; m)Education at $1; n)Chemist/pharmaceutical at $4; o)Gardening/lawn mowing at $8; p)Cleaning at $5; q)Books and magazines at $5; r)Gifts at $10; s)Hairdressing/toiletries at $20; t)Legal fees of $2,000; u)Appliances, furniture and fixtures at $40; v)Sundries at $30; and w)Pet at $8. ... [59] I, therefore, find that the wife’s weekly expenses are to be assessed, as follows: a)Rent at $500; b)Mortgage on the Tasmania property at $300; c)Rates, land tax and agents fees at $63; d)Comprehensive third party insurance at $9; e)Private health insurance at $22; f)Food at $220; g)Household supplies at $40; h)House repairs at $5; i)Electricity at $21; j)Telephone/Internet/television at $15; k)Petrol at $5; l)Motor vehicle maintenance at $6; m)Fares/car parking at $9; n)Clothing and shoes at $40; o)Medical, dental and optical (not including health insurance premiums) at $20; p)Entertainment/hobbies at $18; q)Holidays at $20; r)Education at $1; s)Chemist/pharmaceutical at $4; t)Gardening/lawn mowing at $8; u)Cleaning at $5; v)Books and magazines at $5; w)Gifts at $10; x)Hairdressing/toiletries at $20; y)Sundries at $30; and z)Pet at $8.": Koyroyshs & Koyroyshs [2018] FamCA 840.
[A.C] Mortgage - Interim Property Order or Spousal Maintenance
having character of maintenance
"[30] Order 6 sought by the wife is that any money received as a result of the renting out of the former matrimonial home be classified as spousal maintenance. The husband opposed this, principally on the basis that the wife’s Financial Statement was filed late, and in any event, incomplete. Senior counsel submitted that it was not possible to accurately and retrospectively recharacterise payments in the way of rent received exclusively by the wife as something which is actually in the character of maintenance. This Court disagrees. The fact of the husband ceasing to pay the mortgage as from April 2019 is not a fact in issue. The fact that in so doing the husband was acting contrary to a clear order to this effect is also not a fact in issue. The wife’s assertion that she rented out the property because the husband wasn’t paying the mortgage is entirely plausible in the circumstances. In the wife’s Affidavit filed 23 November 2020, at paragraph 21, she sets out how she applied the rental payments from the former matrimonial home. She paid rent on alternative accommodation for the children and herself in the sum of $8,255 per month. Despite the husband’s contention that this rent was excessive, the Court believes it was not unreasonable in the circumstances given that the wife was living in the former matrimonial home which was rented out for over $19,000 a month. The wife deposes to paying the mortgage, about $10,000 per calendar month, property management fees in relation to the rental, and outgoings on both properties. In the husband’s own evidence (for example, his Affidavit of 23 December 2020 at paragraph 19) he himself acknowledges that he was responsible for paying a mortgage in the amount of about $10,000 per month, a payment that he himself describes as maintenance. Mortgage repayments can constitute spousal maintenance: see, eg. Riley & Riley (No 2) [2014] FamCA 956 ; Holbert & Holbert (No 2) [2020] FamCA 601 , and in the present circumstances, where the mortgage is for the former matrimonial home in which the wife and children continued to reside post-separation, the payments certainly have the character of maintenance. In the circumstances, the wife’s request is by no means inappropriate, and a declaration will be made to the effect that during the period that the former matrimonial home at Suburb E was rented out, and the wife received monthly rental, such rental be characterised as maintenance to her paid by the husband.": Gresham & Gresham [2021] FamCA 111.
> where duty to maintain home to care or provide for children.
"[108] Whilst an order for the payment of the mortgage payments and motor vehicle expenses of the wife might be characterised as periodic interim part property orders, those payments would also comfortably sit within the definition of spousal maintenance. [109] The wife has no other residence and is not receiving any income from paid employment. Both parties agree that the wife should retain the W property as part of the final property settlement, although there is a disagreement about how any encumbrance might be treated. Without this accommodation for herself and the children, the wife would be incurring rental expenses.": Riley & Riley [2014] FamCA 956.
"[79] It was submitted by counsel for the wife that I should not lose sight of the fact that what the wife seeks is an order for her maintenance and the focus should therefore not be on the fact that it is for mortgage repayments. It is the wife’s case that she is unable to support herself adequately and that in order to do so she requires the provision of spousal maintenance, in this case, in the form of mortgage repayments for what was the former matrimonial home.": Anderson & Anderson [2014] FamCA 766.
Preservation of an Asset rather than being unable to support oneself, and ?allowed only if in both parties interests (ie, pending sale)
But cf ,preservation of an asset: "[33] Whilst in her Application in a Case filed on 11 March 2014 the Wife sought an order for the Husband to be responsible for mortgage repayments on the Suburb U property as part of her claim for spousal maintenance that was prior to the agreement being reached as to the interim sale of the Suburb U property. Moreover, it is more in the nature of preservation of an asset the subject of the substantive property proceedings that is involved in the mortgage payments being met, rather than this being an issue as to the Wife’s interim spousal maintenance. Preservation of the equity in that property is to the advantage of both parties, given the substantive property proceedings.": Tomlin & Tomlin [2014] FamCA 204.
both: "Mortgage Repayments [50] The applicant sought orders which would cause the respondent to lodge a sum of $50,000 into the account created to service the mortgage in respect of the R property. The respondent was prepared to dedicate some $40,000 for that purpose. [51] It seems to me that a sum of $50,000 should be made available to service the mortgage for two main reasons. Firstly, the children live in the R property and secondly, payment of the mortgage pending a final settlement would have the effect of preservation of an asset of the parties.": Kilgowe & Brickett [2014] FamCA 291.
"[62] On balance, I conclude that the Husband has the capacity in the interim period under contemplation to meet an Order for interim spousal maintenance of $850.00 per week, rounded off to $3,600.00 per calendar month. [63] In circumstances where the other payments and outgoings contended for by the Wife are included as claimed expenses of the Husband in his Financial Statements and nevertheless, in circumstances where preservation of the asset pool is in both parties’ interests, I propose to make the other Orders referred to as sought by the Wife in relation to the payments of mortgages and outgoings until further Order.": Marlowe-Dawson & Dawson [2012] FamCA 702.
?Crystallization of the property pool, where spouse has ceased making mortgage repayments: "[39] The Federal Magistrate acknowledged that since the husband ceased making mortgage repayments the wife had been required to use credit cards to meet her living expenditure, and that an element of the $150,000 debt therefore related to expenditure for which the wife could not be criticised. His Honour also found that there was an element of the debt that was unrelated to the wife’s general living expenditure, and the matter therefore became a “delicate issue”. [40] The Federal Magistrate recorded that the credit card debt was unsecured, but nevertheless had the potential to “financially embarrass” the wife. [41] Next, his Honour, yet again correctly in my view, turned his attention to whether the husband had the ability to meet the orders over the short term that it was proposed that they operate. He found that there was “no doubt about that on the evidence”, but the question was “whether in the circumstances it is reasonable for him to meet that expenditure”. [42] It was at this point that the Federal Magistrate made certain comments in his reasons which raise the issue that the applicant complains about. His Honour said that he was “surprised” that the parties had not been able to reach some arrangement given the availability of an early trial date, noting that it was possible for the husband to make a sum of money available to meet the wife’s mortgage and credit card debt, on the basis that the characterisation of that “capital payment” could be left until trial. His Honour noted in this regard that there was sufficient equity in the wife’s property to ensure that any payment by the husband which turned out to be “unrequired according to s.79 criteria” could have been returned. His Honour drew the inference that the “raison d’être” for the proceedings and the difficulties with the conduct of the trial were “tactical considerations”. [43] Now, in my view these comments were made very much “en passant” and I do not accept that his Honour was changing the focus of his reasons from the principles applicable to a spousal maintenance claim to those applicable to an interim or partial property settlement claim. This is also quite apparent from the transcript of the hearings that I was referred to during oral argument, and particularly the transcript of the hearing on 11 May 2009 where his Honour said this, “But the other order is really an order that is focusing upon the preservation of property. It’s a question of whether the wife will be given the opportunity to preserve property while her section 79 entitlement is crystallised. That’s what I really see the application to be about, rightly or wrongly. It seems to me that there is a mechanism available for that. Insofar as the parties’ positions today overlap, I can make an order pending trial for a sum of approximately $3800 per month. But any sum that is required to service the mortgage pending disposal of the property proceedings could surely be made upon the basis that the aggregate of the payments are secured by a charge over the wife’s interest in her property and are repayable in any event following the outcome of the property proceedings. I don’t know whether that is a spousal maintenance order. It might be. I recognise the wife is asking for more than that. That’s one of the difficulties. She’s asking for a sum of money that would also enable her to make some other payments, or at least partially pay some of her other debts. But, leaving that aside for one moment, I’m just wondering why that’s not an accommodation they might not have tried to reach. Do either of you want to respond to that? In other words, there would be a payment of the sum that’s agreed pending trial. There would be a payment of the mortgage until such time as the property proceedings were concluded. But, whatever happens at the property proceedings, that sum would be secured by a charge over the wife’s interest in the home. If neither of you want to respond to that you don’t have to, because I don’t want you to think you’re prejudicing the positions you’ve put to me, and I might have a think about it overnight and decide to abandon this. But it seems to me to be a practical solution. Do either of you want to respond?” [44] Now neither counsel chose to respond. However, it is quite clear that his Honour was there exploring options and ruminating about an appropriate way to resolve the dispute. It was not taken up by either counsel though. [45] His Honour did then pursue the issue in the context of s 75(2)(o) of the Act, but again in a way that he was permitted to do. [46] His Honour found that under s 75(2)(o) he could take into account “the relatively short duration of the order and the circumstance that the failure to make an order which provides the wife with an opportunity of servicing a mortgage is capable of having consequences out of all proportion to the loss that that would be experienced by the husband in making the payment.” Now, I note that there is no challenge per se to this finding and in my view there could not be. [47] However, his Honour then makes further comments in paragraphs 41, 42 and 43 of his reasons which the appellant submits highlight the alleged error on the part of the Federal Magistrate. In those paragraphs his Honour said as follows: “41. As I have indicated, I think the wife passes the threshold in terms of need, the inability to support herself. The extent to which the court will expect the husband to meet such expenditure as is required by her to maintain her occupation of the property is a matter to which the court would have to return, of course, in the light of the outcome of the property proceedings. If the outcome of the property proceedings is such that the wife’s continued occupation of that property is not possible, then her occupation is not going to be artificially extended by a s.72 order. 42. What is reasonable in the context of a s.72 order will have to be examined again in the light of the s.79 order, and whilst there is so much uncertainty associated with what is the wife’s s.79 entitlement, if any – and I do not make any observation on that; certain of the matters relating to that were canvassed in the cross-examination of the parties – the wife has a s.79 claim which has yet to be determined. She may or may not receive a sum of money. It may or may not be a significant sum of money, but whatever it is, there would have to be some reality checking, to use the vernacular, by the wife in the light of that order. 43. It cannot be in the case that if she does not have a capital sum that is going to enable her to discharge the credit card liability and hence put her in a position to meet the mortgage liability that the court will sustain her in unrealistic arrangements.” [48] It is perhaps unfortunate that his Honour framed these comments in the way that he did, but nevertheless I consider that he was entitled to do so and they do not indicate that his Honour was confusing the principles applicable to a spousal maintenance application with those applicable to an application for interim or partial property settlement.": Varris & Chomenko [2009] FamCAFC 203.
Investment Property Mortgage
"HEADNOTES ... mortgage repayments on investment property is not cost reasonably incurred to maintain the wife ... [186] The cost of maintaining any continuing debt over the Town 1 property ought be ignored for the purposes of determining entitlement to spousal maintenance because that cost is not an expense reasonably incurred by the wife in maintaining herself.": Neili & Neil [2011] FamCA 492.
"[41] I am not satisfied I should make orders requiring payment of the mortgage over the investment property. The parties are going to have to decide what happens to the property; it may have to be sold. However, I am concerned that the line of credit is secured over the former matrimonial home. I am minded to make an order that, until further order, the husband continue to make payments due in respect of the line of credit, but they be characterised, in due course, by the trial judge.": Griswald & Griswald [2009] FamCA 374.
cf "[2] The husband opposes the wife’s application for lump sum spousal maintenance and contends that it is, in actual fact, an application for a partial distribution of property in circumstances where orders have previously been made for a partial property distribution in favour of the wife. The husband contends that, in circumstances where the wife has chosen to use monies previously received to purchase an investment property, rather than to meet her living expenses, it is inappropriate for the wife to ask for a further distribution to support herself. ... [36] In this matter, the husband contends that, rather than attempt to support herself, the wife has applied funds that she has previously received by way of partial property distribution for the purpose of purchasing the Tasmania property. The wife, on the other hand, contends that her application of funds to purchase the Tasmania property does not disentitle her from seeking an order for spousal maintenance. In that respect, in the matter of Mitchell & Mitchell (1995) FLC 92-601 at 81,995, the Full Court said: … The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend upon the circumstances of individual cases. ... [60] Those figures total $1,404. From that amount it is necessary to deduct the rental income that the wife receives from the Tasmania property of $320. As a result, the wife’s weekly need totals $1,084. ... [79] I accept that the wife has unexploited earning capacity, however, recognition must also be given to the fact that she is the primary carer of the child, who is under school age. In that context, in his second reading speech, introducing the Family Law Bill to the Senate on 11 December 1973, the then Attorney General, the Honourable Lionel Murphy QC, said: As for maintenance, where there are children of the marriage, especially very young children, there is no doubt that a woman who is divorced or separated from her father needs some financial assistance. On the other hand, where the children are older or where there are no children and the mother is still comparatively young, it is surely in the mother’s own interest that she should become economically self-sufficient by working. She may, however, need some financial assistance to undertake a period of training for the purpose of obtaining employment or establishing herself in a business. [80] Ultimately, it is in the wife’s own interests for her to become economically self-sufficient by working. However, in circumstances where she is the primary carer of a three year old child, it is appropriate that she receives financial assistance by way of spousal maintenance to meet her weekly expenses. If she does not receive such assistance, she will be subsidised by the public purse. In circumstances where the parties own a substantial amount of property between them, that outcome would be inappropriate. [81] Counsel for the husband further submitted that the wife’s parents are a financial resource to her. While there is little evidence in that regard, the wife contends that her parents have loaned her funds which she has expended on the purchase of the Tasmania property and living expenses. The evidence is, however, insufficient for me to determine that the wife’s parents are a financial resource for her. [82] In terms of s 75(2)(c), as previously noted, the wife is the child’s primary carer. The child spends time with the husband two days per week. [83] In terms of s 75(2)(d), the husband is currently assessed as being liable for child support of $321.33 per month. The wife is otherwise responsible for the financial support of the child. [84] In terms of s 75(2)(f), the wife declares that she has a superannuation entitlement of $30,888, while the husband declares that he has a superannuation entitlement of $284,550. While that disparity is a matter that may well become relevant at final hearing, it does not impact upon the orders I make in these interim proceedings. [85] In terms of s 75(2)(g), it was not suggested that either party is maintaining a standard of living that is otherwise than modest. [86] In terms of s 75(2)(j), Counsel for the husband submitted that neither party had made a contribution to the property of the other. In reply, Counsel for the wife contested that it was remiss to submit that the wife has not contributed to the property of the husband in circumstances where she could be considered to have made a homemaker and parenting contribution and where, on the uncontested evidence of the wife, the husband lived at the Suburb F property rent-free for two years. The significance of the parties’ financial and non-financial contributions to the matrimonial asset pool is a matter that will require consideration at final hearing and has not impacted upon my decision to make an order for spousal maintenance in these proceedings. [87] In terms of s 75(2)(k), Counsel for the husband submitted that there is no evidence to show that the length of the parties’ relationship has in any way affected their relative earning capacities and that both parties have been affected by their responsibilities regarding the care of the child. It was also contended that the parties’ capacity for work has been impacted by their engagement in these proceedings. Comparatively, Counsel for the wife submitted that the parties’ relationship had affected the wife’s earning capacity to the extent that she has been, and continues to be, the primary carer for the child. As noted, I accept that the wife’s responsibilities as the primary carer of the child have impacted upon her earnings and earning capacity. [88] In terms of s 75(2)(l), I note that the wife wishes to continue in her role as the primary carer for the child. Given the age of the child, that is entirely appropriate. ... [94] Finally, Counsel for the husband submitted that the shortfall between the rental income and expenses attributable to the Tasmania property should not be “brought to account in a maintenance application against [the husband]”. I accept that, insofar as the wife’s decision to purchase the Tasmania property has increased her weekly expenditure by $43 per week, it is appropriate for the order that would otherwise have been made for weekly spousal maintenance to be reduced by that figure. Accordingly, I will make an order for the husband to pay spousal maintenance to the wife in the sum of $1,041. ... [103] Thirdly, the argument that a lump sum order should be made for spousal maintenance because there are funds available from which such an order can be satisfied places the outcome before its justification. Specifically, it ignores the need to establish a valid reason for the making of such an order. [104] In those circumstances, having regard to those authorities to which I have referred, I am not satisfied that an order for lump sum spousal maintenance should be made.": Koyroyshs & Koyroyshs [2018] FamCA 840 -- children of the marriage with wife who is primary carer (an orthodox application of s 75(2) factors).
Spouse wanting to keep her residence to provide free support for adult children
"[108] The argument about the children and whether the husband should be subsidising the wife to be able to provide free support for the children, given the children have substantial incomes, calls for a consideration of sections 75(2)(e),(k),(m), and (o) of the Act. Clearly the subject children are no longer “children” to be considered by s 75(2). There is no aspect of the children’s circumstances which requires, for example, the consideration of an application for support of a child of the marriage who has attained the age of 18 years (s 66L). No submission which addresses s 75(2)(o) explains why it is appropriate to make an order for the husband to pay spouse maintenance for the wife, which is really for the support of the adult children, was provided. There is nothing submitted to establish that the financial circumstances of the adult children are such that it would in the particular circumstances of this case warrant the court making the order sought by the wife.": Fanshaw & Fanshaw [2018] FamCA 1023.
In circumstances where spousal incarcerated and home under forfeiture
Jantzen & Lester [2019] FCCA 3117.
Spouse seeking maintenance in full time employment
"The wife sought spousal maintenance payments until July 2011, which date has now passed. Assuming the wife commenced full time employment in July 2011, she is no longer eligible for spousal maintenance. Any benefits received by her, whether by way of $400 per week payment or car loan repayments should have ceased at that time. If that has not occurred the further amount received by her is already factored into the property settlement, given that the net proceeds of sale have been allocated a value as at April 2011.": Gilbert & Gilbert [2011] FMCAFam 1018.
Misc
cf interim property order
caution - where spouse seeks to retain a mortgage (or retain the sole occupancy of a home) to manufacture a situation of financial need (which has the effect of double dipping into the property pool, or has the effect of eroding the final property pool or one that was already split by a court)
> where interim property order has to be "conservative" so as to not affect a final settlement: "[8] As explained by the Full Court, s 80(1)(h) of the Act is a wide enabling provision for interim property decisions, and there is no reason to limit it, by requiring a finding of ‘compelling circumstances’. All that is required before the power to make an interim property order is exercised, is an assessment of whether it would be “appropriate” to make an interim order, with the “over arching consideration” being the interests of justice. There may need to be evidence of the likely cost of litigation, but only if that is the reason or part of the reason that is propounded as to why it is appropriate that the order be made.": Allman & Allman [2015] FamCA 806.
> where property settlement and spousal maintenance considerations differ -- overarching policy in spousal maintenance to avoid expense to public purse, relegating the responsibility of maintenance to a spouse or former spouse.
[A.D] Consideration of Terms of s 79 Property Order (outside of maintenance power) in Spousal Maintenance -- s 75(2)(n).
Where property proceedings and spousal maintenance proceedings brought together
"[56] An order made or proposed to be made under s 79 is referred to in s 75(2)(n). Where applications for maintenance and property settlement are considered together, as in this case, the court must reach a decision on the property application before considering an application for maintenance (see Anast and Anastopoulos (1982) FLC 91-201, Pastrikos (above)).": MA & MN (No 2) [2003] FMCAFam 269.
"[18] Section 75(2) lists the matters that are to be taken into consideration in relation to spousal maintenance. It is clearly relevant in a spousal maintenance application to take into account any order proposed to be made under s 79 of the Act (see Bevan & Bevan (1995) FLC 92-600 ). Arguably, it is not conceptually logical to take s 75(2)(n) into account at the third step of the “preferred approach” (Hickey), because at that point the proposed property settlement order is not known.": Moritzen & Moritzen [2018] FamCAFC 198.
"[52] An issue arose during submissions as to whether or not the wife’s application in relation to child support should be dealt with prior to the determination of any property settlement order. If it was to be considered first, it would be different to the order in which property settlement and spousal maintenance proceedings should be considered. That order is well settled. The Full Court in The Marriage of Bevan(1995) 19 FamLR 35 at p 39 highlighted the fact that s 75(2)(n) of the Family Law Act 1975 (Cth) (“the Act“) requires the court to take into account the terms of any order made or proposed to be made under s 79 in relation to the property of the parties when considering a spousal maintenance application (see In the marriage of Pastrikos(1979) 6 FamLR 497; In the marriage of Anast and Anastopoulos(1981) 7 FamLR 728; Oates and Crest(2008) FLC 93-365). In order to pay regard to the provisions of s 75(2)(n) of the Act a court needs to have in mind what property settlement order is proposed and consequently, in the usual course, deal with the property settlement proceedings first.": Vardy v Vardy [2015] FamCA 430.
"[369] I make one further comment. In considering not only whether the orders that his Honour proposed were just and equitable, but also in addressing s 75(2)(n), namely the terms of the orders for property settlement, his Honour seems to proceed on the basis that all of the assets of P Company are available to the husband for personal purposes. That may very well be going too far, again though, not from the point of view of whether these assets are available for distribution, but in relation to how a moral obligation is taken into account under s 75(2)(n) or even s 79(2) if it is available to be taken into account there.": Martin & Newton [2011] FamCAFC 233.
Framework
"The court1 will have regard to the terms of any order made, or proposed to be made, under section 79 of the (CTH) Family Law Act 1975 in relation to the property of the parties when determining the liability for, and the extent of, a proper award of maintenance.2 For example, a substantial property order may make an order for spousal maintenance unnecessary,3 or may affect the amount or form of any maintenance order.4 Notes 1 In the Marriage of F (1982) 8 Fam LR 29 Positive treatment indicated at 33; (1982) FLC ¶91-214 per Fogarty J; In the Marriage of Patterson (1979) FLC ¶90-705 at 78,757-9 per Wood J. Compare In the Marriage of Hart (1980) 5 Fam LR 844 Neutral treatment indicated at 850 per Lindenmayer J. 2 Note on 1 September 2021, the Family Court of Australia and the Federal Circuit Court of Australia merged into one court known as the Federal Circuit and Family Court of Australia (‘FCFCOA’), pursuant to the (CTH) . The FCFCOA is comprised of two divisions. Division 1 deals with more complex family law matters exclusively, as per the former Family Court of Australia. Division 2 deals with family law, migration and general federal law matters, as per the former Federal Circuit Court of Australia. 3 (CTH) Family Law Act 1975 s 75(2)(n). As to the correct procedure where the court has before it claims for both property settlement and spousal maintenance see In the Marriage of Anast and Anastopoulos (1981) 7 Fam LR 728 Cautionary treatment indicated at 733; (1982) FLC ¶91-201, Fam C of A, Full Court; In the Marriage of Morris (1982) 8 Fam LR 740 Neutral treatment indicated at 753; (1982) FLC ¶91-271 per Ellis SJ and Gee J, Fam C of A, Full Court; In the Marriage of Little (1990) 14 Fam LR 118 Positive treatment indicated at 123; 100 FLR 322; (1990) FLC ¶92-147, Fam C of A, Full Court; In the Marriage of Clauson (1995) 18 Fam LR 693 Cautionary treatment indicated at 705; (1995) FLC ¶92-595, Fam C of A, Full Court; In the Marriage of Bevan (1993) 120 FLR 283 Positive treatment indicated; 19 Fam LR 35 at 39; (1995) FLC ¶92-600 per Nicholson CJ, Lindenmayer and McGovern JJ, Fam C of A, Full Court. Compare In the Marriage of Kauiers (1986) 11 Fam LR 41 Neutral treatment indicated at 58, 59; (1986) FLC ¶91-708, Fam C of A, Full Court; In the Marriage of Elsey (1996) 21 Fam LR 249 Neutral treatment indicated; (1997) FLC ¶92-727, Fam C of A, Full Court (the result at trial was not just and equitable, as the trial judge did not consider the effect of the orders on the husband's earning capacity. He would be unable to borrow a further $95,000 to pay the wife and continue to operate the business from the home. If the home was sold, he would be paying a commercial rent for business premises); In the Marriage of Cunningham (2005) 33 Fam LR 159 Cautionary treatment indicated; (2005) FLC ¶93-212; [2005] FamCA 159, Full Court (a reduction of the trial judge’s adjustment under (CTH) Family Law Act 1975 s 75(2) in favour of the wife, because the asset distribution ordered by the trial judge made capital immediately available to the wife which could be used to reduce the disparity in the parties’ incomes). As to property claims see [205-5005]. As to other factors to be taken into account by the court when determining a proper award of maintenance see [205-4040]-[205-4128]. See also Stanford v Stanford (2012) 47 Fam LR 105 Negative treatment indicated; (2012) FLC ¶93-495; [2012] FamCAFC 1; BC201250009 Fam C of A, Full Court. 4 See, for example, In the Marriage of Bignold (1978) 5 Fam LR 97 Neutral treatment indicated at 104 per Connor J, Fam C of WA; In the Marriage of W (1980) 6 Fam LR 538 Cautionary treatment indicated at 550; (1980) FLC ¶90-872 per Nygh J. See also Re Q (1994) 18 Fam LR 442 Neutral treatment indicated at 446 per Kay J; In the Marriage of Rosati (1998) 23 Fam LR 288 Neutral treatment indicated; (1998) FLC ¶92-804 at 85,048-051, Full Court; In the Marriage of Figgins (2002) 173 FLR 273 Neutral treatment indicated; 29 Fam LR 544; (2002) FLC ¶93-122; [2002] FamCA 688, Fam C of A, Full Court. See also In the Marriage of Dickson (1999) 24 Fam LR 460 Neutral treatment indicated; (1999) FLC ¶92-843, Full Court.": [205-4115] Terms of any property order, in Halsbury Laws of Australia.
"[91] The orders will provide that the applicant will be paid a comparatively modest sum of money. It may provide her with a capital sum that can be used towards the deposit on her own house or unit. She will need to borrow a sizeable sum of money if she is to re-enter the property market. I cannot assess whether she is likely to be able to do so. The respondent will have an asset worth about $280,000.00 (nett) more than the applicant will receive. Section 75(2)(n) achieves a cross-referencing between s 75(2) and s 79. In the Marriage of Todd (No 2)30.. The terms of the order result in an outcome favourable to the respondent. This outcome is just and equitable. Were I satisfied that the applicant was likely to incur significant costs, for example stamp duty on a purchase I would have considered an adjustment in her favour. Because such a conclusion is speculative at best I cannot be satisfied that she is likely to incur them. I make no adjustment pursuant to the subsection.": M & W [2002] FMCAFam 318.
Interrelationship between property, spousal maintenance and child support: "Headnotes ... (iv) As to the re-exercise of the trial judge’s discretion, regard must be had to the relationship in Australia between property settlement orders, spousal maintenance orders and child support obligations: see ss 79(4)(g), 75(2)(n) and (na). When this interrelationship is taken into account, it should be seen as vexatious and oppressive to commence and prosecute proceedings for spousal and child maintenance in a foreign court when both parties are seeking orders for property settlement in this country, when identical issues relating to the parties’ financial positions and the needs of their children will need to be examined in all proceedings in question, and when all financial matters can be determined in this country. The oppression and vexation of such a situation is confirmed when regard is had to the language differences and differences in the legal systems between Australia and the Netherlands and W’s considerable advantages over H in relation to these matters. A further matter of significance is H’s right to have reviewed (and possibly rendered nugatory) in Australia any Dutch maintenance order before it is enforced in this country: at [74]–[77]. ... [51] Indeed it was also the submission of counsel for the husband that the error in not approaching the injunctions, which the husband sought, on the basis of a single matrimonial controversy might not have been of great significance, had the trial judge proceeded to give proper weight to the interrelationship between property and spousal maintenance mandated by ss 75(2) and 79(4) of the Family Law Act. There was, it was submitted, a failure on the part of the trial judge to give any proper weight to the fact that the outcome of his orders (whereby property orders would be made in Australia and spousal and child maintenance orders in the Netherlands) would be to require both the Australian and the Dutch courts to investigate and make findings as to the parties’ assets, liabilities, financial resources, income, capacity for employment and their commitments. [52] Thus, it was submitted, that for the wife to commence in the Netherlands proceedings which would give rise to the same issues, after she had already submitted to the jurisdiction of the Family Court to deal with such issues, and indeed had sought her own orders here, was, in the relevant sense, vexatious and .oppressive, since “complete relief” is available to the wife in the local proceedings. We understood counsel’s submissions in this regard to be directed to the availability in this jurisdiction of both court orders for spousal maintenance and administrative assessments and/or court orders in relation to child support. ... [61] The next matters which, it was submitted, should have been considered, were that the treatment of interrelated issues in different jurisdictions may mean that differences of philosophy or approach (which may not even be explicit) would produce unjust outcomes. It would seem that a particular example of this general proposition was the effect of the different tax regimes, with spousal maintenance payments apparently being taxable in the hands of a Dutch recipient (with that not being the case in Australia); this was a matter which could be best taken into account, according to counsel for the husband, if spousal maintenance was determined along with property settlement in Australia. [72] It has to be said that this case has some extremely unfortunate and unsatisfactory aspects. As we have earlier indicated, both parties are apparently willing to have proceedings arising out of the breakdown of their marriage conducted in the courts of different countries. Notwithstanding that fact, we do not think that it can be said that the husband is not entitled to seek to restrain the wife proceeding with the spousal and child maintenance proceedings particularly in circumstances where the wife is also seeking property settlement orders in Australia as well as in the Netherlands. In other words, the husband is entitled to seek that all financial matters be dealt with in the one jurisdiction, being his home jurisdiction and the jurisdiction in which the parties lived for the greater part of their life together. [73] It is true that neither party has instituted proceedings in relation to spousal maintenance or child support in an Australian court. This fact must cause us to be extremely cautious in restraining such proceedings in the Netherlands. Nevertheless, regard must also be had to the fact that the wife is seeking property settlement orders here — albeit in response to the husband’s initiating application. [74] Regard must therefore be had to the fact of the relationship in this country between property settlement orders, spousal maintenance orders and child support obligations. This interrelationship can easily be seen by reference to the provisions of s 79(4) of the Family Law Act which sets out the matters to which regard must be had in making an order under s 79 for property settlement. Included in those matters are “any child support under the Child Support (Assessment) Act 1989 that a party to a marriage has provided, is to provide, or might be liable to provide in the future for a child of the marriage”, as well as the matters in s 75(2) of the Act. [75] The matters in s 75(2) which are primarily the matters to be taken into account in determining an application for spousal maintenance include: (n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; (na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; [76] When regard is had to this interrelationship between proceedings and orders for property settlement, spousal maintenance and child support, we consider that it is vexatious and oppressive to commence and prosecute proceedings for spousal and child maintenance in a foreign court: when both parties are seeking orders for property settlement in this country; when identical issues relating to the parties’ financial positions and the needs of their children will need to be examined in all proceedings in question; and when all financial matters can be determined in this country. [77] The oppression and vexation of such a situation is confirmed when regard is had to the language differences and differences in the legal systems between Australia and the Netherlands and the wife’s considerable advantages over the husband in relation to these matters. A further matter of significance is the husband’s right to have reviewed (and possibly rendered nugatory) in Australia any Dutch maintenance order before it is enforced in this country.": In the Marriage of Dobson and Van Londen (2005) 33 Fam LR 525.
Second bite of the cherry (interim): Koyroyshs & Koyroyshs [2018] FamCA 840, [89], [90], [91], [94].
Dollar terms: Marsh & Marsh [2014] FamCAFC 24, [172] et seq:
> "[222] I note with respect to this factor the Full Court’s remarks in Marsh & Marsh [2014] FamCAFC 24 in allowing the appeal before them that: [t]here is nothing in any of the ss 79(4)(d) to (g), or elsewhere in s 79 which requires a judge to calculate in dollar terms the differential achieved between the parties in the judge has apportioned assessment of contribution in percentage terms. Nevertheless, it is a matter of common practice developed by judges exercising discretion under s 79 of the Act, to carry out such an exercise, at least at the time matters relevant to s 79(4)(e) are considered. Section 75(2)(n), on one level at least, invites such an exercise. Had the Federal Magistrate carried out such an exercise, in this case, he may have reached a different determination as to the amount of adjustment which was required under s 75(2).96": Ngueng & Yancey [2021] FedCFamC2F 255.
Bifurcated property and spousal maintenance proceedings, consideration of s 79 orders (s 75(2)(n)): "[219] In exercising jurisdiction under section 74 in relation to the making of a spousal maintenance order, the Court must take into account only the matters referred to in subsection 75(2). [220] At the time of the hearing the wife was 39 years of age and the husband was 45 years of age (now 40 years and 46 years respectively). Each party is in good health.153 [221] The income, property, and financial resources of each of the parties, and the physical and mental capacity of each of them for appropriate gainful employment has been examined in my consideration of their financial positions above, and earlier in these Reasons in relation to property settlement issues.154 I find that it is appropriate to give this consideration weight. [222] Each of the parties has commitments necessary to enable them to support themselves and the children of the marriage.155 [223] The wife’s ability to engage in appropriate gainful employment is affected by her current employment skill levels and her ongoing responsibility for the day-to — day care and control of the children of the marriage who are under 18, being eight, seven and three years of age at the time of hearing (nine, eight and four years of age currently).156 [224] Neither party is responsible for the support of any other person other than the children of the marriage.157 [225] The husband has no entitlement to or eligibility for a pension, allowance or benefit under Commonwealth, state or under a superannuation fund or scheme inside or outside Australia.158 The wife does have an entitlement to benefits from the Commonwealth which she receives through Centrelink as Single Parent Payment and Family Tax Benefit payment.159 Though it is mandated that the Court take the wife’s eligibility to such benefits into account under section 75(2), this is subject to subsection (3) which mandates that the Court disregard those entitlements.160 I do disregard them. [226] The parties have separated, and neither party enjoys a standard of living that is ideal.161 As between the parties, the husband enjoys a better standard of living than the wife. [227] While the standard of living of the wife can be raised by the making of a spousal maintenance order, it can only do so to the extent that the husband has an ability to pay that spousal maintenance. By its nature, the making of that order would cause some depreciation, of unknowable extent, to the husband’s standard of living. [228] The payment of spousal maintenance by the husband to the wife will have the effect of, to some degree, increasing her earning capacity by enabling her to undertake a course of training or education, to enable herself to re-enter the workforce and obtain an income adequate to enable her to be financially self-sufficient.162 In reality, this may not be to any great extent, but it will be to some extent. [229] An order that the husband pay spousal maintenance to the wife from his excess of income over expenses, when part of that excess has come from reducing the amount available to him to repay to ANZ on his ANZ Platinum credit card debit balance, will affect the amount that he does pay to that creditor.163 However, this does not affect ANZ’s ability to recover the debt over time. [230] The duration of the marriage affected the wife’s earning capacity to her detriment, in that she was not able to engage in full-time employment throughout.164 The husband was able to engage in full-time employment throughout the duration of the marriage, except for two short periods of unemployment.165 [231] The terms of the order that I have already indicated I propose to make under section 79 of the Act relates solely to an adjustment of ownership of property between the parties by way of a superannuation splitting order.166 Neither party is of an age or in circumstance where they are entitled to call for their superannuation entitlements, even with tax penalty. Accordingly, that order under section 79 will not having any effect on the income, expenses, or earning capacity of the parties. [232] The husband pays child support in the sum of $577 a week pursuant to an assessment.167 I have left that sum in the calculation of his expenses.": Barnard & Welsby [2020] FCCA 1721.
Overlap - Double Dip
"[113] The Respondent seeks a lump sum spousal maintenance order. In the circumstances of this case and in particular with the policy of s 81 in mind I consider it appropriate to make an order that will bring an end to ongoing financial relations between the parties. However in considering an appropriate assessment of the allowance that ought be made to properly allow for this matter a close consideration is necessary of the state of current obligations and outstanding liabilities. [114] By interim orders made 19 August 2005 it was ordered by consent that the Applicant pay to the Respondent the sum of $60 per week by way of interim spousal maintenance. It was agreed that despite that order the Applicant fell into arrears in respect of that obligation and that as at that date of trial the sum of $2,157.50 was outstanding. The Respondent is entitled to recover that sum. [115] That matter aside, the application for spousal maintenance clearly overlaps with the section 79 property settlement application and the orders in this proceeding which follow. Section 75(2)(n) requires that those matters to be considered in the context of an application for spousal maintenance. [116] In considering appropriate orders in respect of property settlement under section 79 I have also given consideration to the section 75(2) factors. I have made allowance in the section 79 property settlement orders for spousal maintenance. This is particularly so as the Respondent has sought discreet orders in respect of that matter in this proceeding and I have done so in order to avoid any risk of doubling up. ... [143] Logically the matter of child support should be considered first. Unlike spousal support which is determined after resolution of questions of property the level of child support is a factor which the Court is obliged to take into account both under section 79(4) and under section 75(2) in determining property settlement36. However as I have noted above my determination of this application has been factored into my determination of property settlement. [144] It has been clearly established since In the Marriage of Gysleman37 that it is obligatory for a Court to follow a three stage process provided for under the Act. First the Court must determine whether there is a ground for departure; second the Court must determine whether it is just and equitable for a Court to make a particular order; and third it must also determine whether if those two pre conditions have been established it would be otherwise proper for the Court to make the order.": Wakehurst & Molvig [2007] FMCAFam 241.
"[188] The wife sought orders pursuant to ss 72 and 74 of the Act which would provide for the husband to pay her lump sum spousal maintenance in the sum of $275,000. [189] The court has the capacity and the jurisdiction to make such an order should all of the necessary criteria be met.[190] The application for lump sum spousal maintenance needs to be seen in the context of the terms of the s 79 property settlement order proposed to be made (s 75(2)(n)). The wife will receive a substantial sum of money, which can be used to purchase a home and to provide a reasonable income. [191] The evidence is limited as to whether after the full payment, such an income would be sufficient in itself to fully maintain a reasonable standard of living for the wife. However, the balancing factor which needs to be taken into account is the significant requirement that the court must be satisfied of the extent to which the husband is reasonably able to maintain the wife in these circumstances. [192] Taking into account the matters in s 75(2) the court has not been satisfied to the necessary standard of proof that following upon the property settlement orders the wife will not be able to support herself adequately. The court is also not satisfied that sufficient evidence has been produced to satisfy the court that the husband will be reasonably able to contribute further to the maintenance of the wife after the terms of the property settlement have been carried out.": Harradine & Harradine [2014] FamCA 188.
interrelation between property and child support - 75(2)(n) - future needs: "Held, upholding the application for orders under s 79 Family Law Act 1975 (Cth): (1) The financial contributions made by the parties to the current property could be calculated on the basis of the relative working time each had devoted to money earning and related activities and where cash or assets had been introduced, the time it would have taken to earn the equivalent amount. (2) The husband's failure to pay maintenance or child support since separation could not affect entitlement to a share in family assets. However under s 75(2)(n) future contributions to child support could affect that entitlement. ... (at 623) The husband has not paid any moneys to maintain the wife or child since the parties separated. Pursuant to Family Law Act 1975 (Cth) s 75(2)(na) I must take into account the fact that the husband has not provided child support. I cannot understand how this can affect the respective entitlements of the parties to share in the total family assets. Whether or not the husband has contributed to child support would not alter that total. The result would be different if a global approach was not being taken but an approach which involves examination of specific contributions to individual assets was being taken. The prospect of future contributions to child support could alter things and I am required to consider this under s 75(2)(n). Therefore, a final conclusion on whether or not the factors under s 75(2) warrant a division of property which departs from the parties’ percentage contribution to it must be realised at the same time as determination of the application for departure from the child support assessment. ...": In the Marriage of Bolton (1992) 15 Fam LR 615, 623.
"[61] In my view, the following factors are most relevant in this case: ... As discussed in the section of these reasons relating to contributions, I am satisfied that the contributions by the Wife have been a positive contribution to the farming activities (not the least in being a partner), and that the preservation of the farm, debt free, enables the income which the Husband solely now receives to be a factor to be considered under s 75(2)(j). This is not to “double dip“, as s 75(2)(n) requires the Court to also consider the effect of the terms of any order made under s 79. I acknowledge that the Husband’s contribution based entitlements will alter the interests significantly in his favour, however, the analysis under s 75(2) is not to permit of some “engineering“ of a result that does not properly understand the contributions made above. When I come to discuss the order that achieves justice and equity, it will become apparent that one effect of the orders I propose to make is that for the Husband to retain his farm in total, he will be required to borrow funds which will reduce his income. Otherwise, he would have to consider selling some of his property.": Fischer v Fischer [2014] FCCA 1088.
Query, whether after property settlement and adjustment for future needs, financial need still persists necessitating spousal maintenance application: "[131] In Zalewski17 at para 184 Coleman and Boland JJ said: The inclusion of the words "whose maintenance is under consideration" in ss 75(2)(j) and (k), prima facie, indicates the subsections relevance to spousal maintenance applications. However s 79(4)(e) does not limit consideration in proceedings under s 79 to any specific s 75(2) factors. The criterion to be applied under s 79(4)(e) is that the matters in s 75(2) must be relevant. It is necessary that assessment of contribution exercise under ss 79 (4)(a),(b) and (c) is not confused with the word "contributed" in s 75 (2)(j), the latter requiring the consideration of a contribution to a financial resource … [132] There is no application for spousal maintenance here. ... [146] Section 75(2)(n) requires me to take into account the terms of the orders that I propose to make in respect of the property of the parties. In this case, I propose to make an order that will provide the husband with more than the wife. Sadly and inevitably, that may mean the sale of the home and I propose to take into account in a global way the fact that the wife will probably have to rehouse herself and start again. If she decides not to do so, she will be saddled with a significant mortgage or debt and that is a factor that I can also take into account for the purposes of an adjustment between the parties. [147] I propose to make an adjustment of 7.5 per cent in favour of the wife. That therefore means an overall division of 52.5 per cent to the husband and 47.5 per cent to the wife.": McConachie & McConachie [2007] FamCA 754.
Estoppel arising from property settlement - no
"[48] An important issue in this matter was whether the parties had entered into an agreement as to the adjustment of property and if so, the effect of that agreement. In Woodcock v Woodcock17. the Full court of the Family court answered two questions stated by Frederico J regarding the application of the doctrine of estoppel to applications for property settlement and spousal maintenance pursuant to the Family Law Act 1975. After discussing previous authorities, including Burgoyne18. as well as In the Marriage of Dupont (No3)19. and Candlish and Pratt20. to which this court was taken the Full court held as follows. “In our view the cases referred to above clearly indicate that the court’s jurisdiction to grant relief under s 74 or s 79 can only be ousted by court order or by agreement approved pursuant to the provisions of s 87. It may be that the ability to take into account the terms of an unapproved agreement creates in the words Hoffman LJ, “the worst of both worlds” as it will be impossible to predict from case to case, exactly what weight should be given to the agreement (Schokker v Edwards: agreement followed; cf Klesnik: agreement given little weight). However it is the unwavering thread of all the cases that the parties cannot by their conduct or agreement oust the jurisdiction of the court.” [49] Woodcock (above) clearly establishes that an agreement21. does not establish an estoppel. The facts and circumstances relied upon to establish the agreement is nonetheless relevant in a s 79 application. For example the agreement may be relevant to whether it is appropriate to make an order (s 79(1) as well as whether it is just and equitable to make any and if so what s 79 order (s 79(2). I respectfully agree with Nygh J’s statement In the Marriage of Dupont (No 3) (above), “It may be that where a party to an agreement allows the other to assume by tacit acceptance of compliance with the agreement that no claim will be made under s 79 and the other party acts on that assumption to his or her detriment” that this is a matter that can be taken into account pursuant to s 75(2)(O). The court is not limited to taking the agreement into account in only one instance. It can be relevant in a number of respects in the same case. This is clear from the Full Courts statement in Candlish and Pratt (above) “The fact that the parties have entered into a Deed relating to their financial affairs (whether or not registered) is a relevant factor for the court to consider (under s 75(2)(O) and under s 79(2) and also on general principles … ”22.": M v W [2002] FMCAFam 318.
VMC & LVC [2005] FMCAFam 348, [43]-[44].
Adjustment for future needs in s 79 to be characterised as spousal maintenance?
"[180] In her response the wife sought spousal maintenance, relying generally upon an incapacity to support herself adequately and the shortfall between her expenses and income. [181] In Bevan and Bevan (1995) FLC 92-600 at 81,981 to 982 the Full court stated the law as being : … that an award of spousal maintenance requires: 1.a threshold finding under s 72; 2.a consideration of s 74 and 75(2); 3.no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and 4.discretion exercised in accordance with the provision of s 74, with 'reasonableness in the circumstances' as the guiding principle." [182] Section 72 imposes a duty on a party to maintain the other if reasonably able to do so and if that other party is unable to support himself or herself adequately by reason of one of the factors set out in the section. Section 74 enables the court to make such order as is proper and it is further required to take into account the matters referred to in s 75(2), one of which (s 75(2)(n)) provides that the court shall have regard to the terms of any order made or proposed to be made under s 79 in relation to the property of the parties. [183] As the Full court noted in Mitchell and Mitchell (1995) FLC 92-601 at 81,995 the threshold question of whether an applicant can support him or herself "adequately" is not to be determined by any fixed or absolute standard, but having regard to the matters referred to in s 75(2). Nor is the question to be determined upon a "subsistence" level. [184] In final submissions, counsel for the wife submitted that $50,000 of the sum awarded to the wife could be characterised as lump sum spousal maintenance. It was put that she retained a need for maintenance as presently ordered ($400 per week) and should receive that sum for the next three years, discounted to $50,000 for lump sum payment. [185] The court cannot simply allocate a part of a sum awarded by property settlement as spousal maintenance. It must consider whether the wife has the capacity to support herself adequately and, if she does not, whether the husband has the capacity to contribute to her support. If so, a figure must be fixed, after having considered the factors set out in s 75(2). The court may later capitalise the maintenance and order payment of a lump sum. ...": O'Malley & O'Malley [2009] FamCA 52.
"[70] The challenge to the orders for spousal maintenance embraced by ground 9 is supported by three paragraphs within the written outline on behalf of the appellant which should be quoted in full: 52.Her Honour made an order for spousal maintenance in circumstances where she had already made a 20% adjustment (representing a disparity of $432,000) for s 75(2) factors. 53.This was in circumstances where her Honour accepted that “there should be an attention to moving matters forward more proactively than the wife has thus far managed[”]. (Citing [134] of the reasons) 54.Her Honour seemed to give no particular reasons why a period of 2 years should be allowed for spousal maintenance. [71] Paragraph 52 of the outline just referred to might be seen as advancing a contention that the making of an adjustment pursuant to s 79(4)(e), that embraces the factors relevant to a claim for spousal maintenance (s 75(2)), is a disentitling factor in respect of spousal maintenance. Plainly, that is not the case, albeit, of course, that the terms of the property order are relevant (because s 75(2)(n) specifically makes it so).": Dickson & Dickson (2012) 50 Fam LR 244; [2012] FamCAFC 154.
"[29] The crux of the challenge to the trial Judge's order for interim spousal maintenance was that he "did not take into account that the husband would have available to him … within seven days of the judgment, the amount of $107,000 by way of interim property settlement". (Summary of Argument on Behalf of Appellant Wife, p 3, para 13). It was submitted that "[t]he receipt of this fund was so intrinsic to the husband's capacity to support himself and to enable the court to give proper regard to s 75(2)(n)" as to represent an error of principle on the part of the trial Judge. (Summary of Argument on Behalf of Appellant Wife, p 3, para 16). Learned senior counsel for the wife relied upon the decision of the Full court in Bevan & Bevan (1995) FLC 92-600 in support of this proposition. ... [34] On behalf of the husband it was thus submitted, in essence, that as a matter of substance a consideration of the impact of the order for interim property settlement could not have impacted upon the determination of the husband's interim spousal maintenance claim or that, to the extent that the trial Judge failed in his reasons for judgment relating to that claim to refer expressly to the practical effect of the order for interim spousal maintenance, no reasons were in the circumstances required. [35] In our view it cannot be successfully asserted that the trial Judge gave any consideration in his reasons for judgment to the significance of the husband's receipt of the sum of $107 000 which his Honour later concluded to be appropriate by way of interim property settlement. It is apparent from his Honour's reasons for judgment that the question of interim spousal maintenance was considered prior to, and without reference to the question of "interim property" settlement. His Honour thus erred in principle having regard to decisions of the Full court such as Bevan (above). [36] It is necessary however in the circumstances of this appeal, for the reasons raised by learned senior counsel for the husband, to consider whether, notwithstanding what appears to have been an error of approach by the trial Judge, adopting the correct approach could or would have produced a different result. [37] Ultimately, the fate of senior counsel for the husband's submissions in that regard depends upon whether, on balance, the trial Judge concluded that the overwhelming bulk of the $107 000 which he determined to be appropriate to be paid by way of interim property settlement would be consumed by the payment of debts or other reasonable expenses. Realistically, unless senior counsel for the husband's proposition can be seen to have substance, the wife's challenge to the order for interim spousal maintenance would appear entitled to success on the basis that the approach taken by the trial Judge involved an error of principle. ... [44] The evidence before the trial Judge was untested and, sensibly, there is no complaint that such was the case. In our view, it would be illogical to conclude that his Honour made the order he did for interim property settlement by reference to what he clearly accepted to be two categories of capital need, but would have considered that such capital remained available to the husband for his own support when considering the claim for interim spousal maintenance. ... [46] On balance, notwithstanding the trial Judge's approach to the topic, we are not persuaded that this challenge to his decision should be upheld, or that leave to maintain such challenge should be granted. Although it is perhaps unnecessary to say more, we note the practical effect of the trial Judge's interim property settlement order. Unlike interim spousal maintenance, at least $80 000 of the $107 000 awarded to the husband by way of interim property settlement would be likely to be "added back" on the final hearing of the parties' financial disputes, (see Farnell & Farnell (1996) FLC 92-681 and Chorn & Hopkins (2004) FLC 93-204) as would the value at the date of trial of the furniture which the husband said he intended to purchase for approximately $14 000. It would be curious against that background if the husband was required to meet what the trial Judge accepted to be his reasonable weekly needs out of monies, which he would not have, which were likely to be substantially added back at the final hearing of financial proceedings between the parties in circumstances where his Honour found that the husband could not otherwise support himself.": Oates & Crest [2008] FamCAFC 29.
Add-back?: "[167] The husband proposes that the sum of $200,000 received by the wife pursuant to the Order of 16 November 2012 be treated as a partial property settlement and, therefore, added back as an asset of the wife’s. The court is asked by the wife, who has spent all of the money, to treat the sum as maintenance. ... [177] Making an adjustment to the sum of $106,644 to account for what it believes is the extent of the wife’s unreasonable expenditure, the court has come to the view that a further $6,000 to $7,000 of the $200,000 should not be characterised as maintenance. Therefore, half of the $200,000 paid to the wife shall be taken to be maintenance and the other half partial property settlement. [178] Having arrived at that conclusion as to characterisation, the court does not intend to add back against the wife the amount not characterised as maintenance. Rather, it will be taken into account in the court’s consideration of what is just and equitable under s 75(2)(n). ... [290] The court now turns to the provisions which it is required to consider under subs 75(2) to arrive at a maintenance order which is proper. Those matters (in equivalently lettered paragraphs) are as follows: ... m)Pursuant to s 75(2)(n), the court is required to take into account the effect of any property settlement order on both the payer and the payee of an order for maintenance. The Orders for property settlement which the court proposes to make under s 79 are as set out above. As a result of those orders, the wife will receive net assets in the sum of $3,144,269. The court takes that outcome into account and, in particular, notes that a 10% adjustment was made to the contribution-based entitlement in favour of the wife, which adjustment arose from an analysis of relevant matters under s 75(2), including but not limited to the wife’s comparatively low earning capacity. ...": Masoud v Masoud [2013] FamCA 763.
Second bite of the cherry - post final property orders
" ... [15] The husband opposes the wife’s application for spousal maintenance essentially on the following grounds: ... he believed that the final property settlement where he agreed to repay the debts of the marriage of $25,000, was in lieu of spousal maintenance because he did not obtain legal advice on the effects of that agreement; ... [87] Regarding s 75(2)(n) of the Act, the parties’ property settlement was concluded in February 2012. The former matrimonial home was sold and after payment of expenses and the mortgage there was nothing remaining. The husband has continued to pay the outstanding debt of the marriage which now amounts to $16,438. The husband has asserted in his written material that he believed that the final property orders made by consent were in lieu of spousal maintenance because he was not legally represented. The husband did not pursue this in the hearing before me and in the absence of evidence about this I make no finding on this point. However, I take into account the effect of the settlement, which is the debt assumed by the husband.": Payne & Geller [2014] FamCA 114.
parties choice of assets in property split - financial need arising from split manufactured? - effect on moving on
"[180] Section 75(2)(n) refers the court to the terms of the property order. Each of the parties achieved what they ultimately wanted to divide in a very modest list of assets but the wife took the bulk of the non-superannuation assets. She has had the benefit of those assets by purchasing the home. The husband may have built on his superannuation but otherwise, his assets have come from his efforts and those of Ms Hand. [181] Section 75(2)(o) requires the court to take into account other matters without being precise as to what that means. One of those matters will be that the court can take into account that less than full coverage of the wife’s present expenditure will leave her exposed to risks of having to sell her house and renting a property. It will leave her exposed to what she said had already been a problem of not being able to care for herself properly. However, those problems will have to be faced in a different environment when the husband ultimately retires in any event. ... [215] In many cases these days, parties move on with their lives and create second families. That issue raises the question of whether or not there are priorities as between families relating to support obligations. What happens, as here, where the legal title is held to all of the property by Ms Hand? Is it also appropriate to take into account the vastly different lifestyles which, in the case of the husband, include expensive private school fees and clothing for the children of his relationship with Ms Hand because he owes them a legal duty of support and care? [216] From an historical perspective, prior to the commencement of the Family Law Act, there were maintenance provisions in most states around Australia. For example, in Tidswell v Tidswell (No 2) [1958] VR 601; [1959] ALR 49, Herring CJ said that if a respondent remarried, he must be taken to have “anticipated” the “double burden” of supporting his second family and also “making some provision” for his former family. “Some provision” does not appear to have been defined. In other decisions such as McOmish v McOmish [1968] VR 524; [1969] ALR 80 the Victorian Supreme Court side stepped the issue by saying that it could take into account the likelihood of the second wife getting or having work and income to “lighten” the husband’s obligation to pay maintenance for his first family but the view was clear that the “encumbrance” was carried forward.[217] Section 75(2)(d) and (e) of the Act now make that previous approach untenable because the court must take into account commitments of the husband necessary to enable him to support not only himself but others to whom he owes a duty by that second marriage. [218] To the extent there is assistance from the matrimonial causes cases, it lies in the fact that the court can examine whether the second marriage of the financial circumstances arising from it, were undertaken to avoid the “encumbrance”. [220] In In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816 (DJM) the Full Court dealt with a case where the husband had been a high-earning management consultant who, upon the devise of his marriage, reduced his activities and became an academic earning substantially less than he had been. On the basis of the differing legislation language, the court distinguished between child support obligations and spousal maintenance obligations. At 85,271, the court said that spousal maintenance was governed by a test of what was proper having regard to the reasonably ability of the paying spouse to meet the needs of the other. The court said: A spouse is only required to support the other spouse to the extent that he or she is reasonably able to do so. [221] It could, said the court in DJM, be reasonable not to expect an estranged spouse to work the extra hours (and similar impositions) so as to provide spousal maintenance. The Full Court however then added that it was a question of what was reasonable in the circumstances. In DJM, the trial judge did not accept the husband’s bona fides. Here, I would not make a similar finding because, as already mentioned, the husband’s working life and second family have not (until now) prejudiced the wife’s entitlement to support. [222] The respective capital entitlements of the parties are relevant to a spousal maintenance claim because s 75(2)(b) says so. However, those are matters to be taken into account. [223] There is nothing specifically in the relevant sections that provides for spousal maintenance to be paid out of capital. On order which takes the effect of altering property interests must be seen as a property order rather than maintenance (see In the Marriage of J T and M L Collins (1977) 3 Fam LR 11,424; (1977) FLC 90-286). [224] Orders that may be made (as s 74(1) says) are those which are “proper for the provision of maintenance”. Section 80 to which I have already referred addresses the general powers of the court but it says nothing more than the court has power to make “any other order which it thinks it is necessary to make to do justice”. It is conceivable and perhaps not unusual, to see an order for the sale of property to satisfy an order for maintenance but in this case, that would be difficult by virtue of the ownership at law of the properties of Ms Hand. To be first able to make an order for spousal maintenance where someone only has property interests is feasible but only if the capital was not being used productively. [225] An argument raised by the husband in final submissions was that the “high water mark” for the proposition that one should draw on capital was the Full Court decision in Maroney and Maroney [2009] FamCAFC 45. That however is distinguishable on the basis that it was a case involving interim spousal maintenance. In interim maintenance cases, any final hearing can adjust any inequity caused by such an order. [226] Whilst the wife’s case as put by her counsel was highly critical of the husband because he had the assets in the name of Ms Hand and had earned substantial income over the years, it did not address how any proposed orders could be satisfied if they were to be paid from capital. Having said that, I reject any suggestion that there is no obligation to pay spousal maintenance in the event that someone has no income but plenty of capital. If for example, there were idle or non-income producing assets which were realisable, an order for sale could be made to meet those obligations. This issue in reality, focuses on earning capacity. In In the Marriage of W T and J F Beck (No 2) (1983) 48 ALR 470; 8 Fam LR 1017; (1983) FLC 91-318, the Full Court (Evart CJ, Emery SJ and Hase J) dealt with an argument about a woman who had a life interest in property which she gave up when she married the second husband. In considering the words “earning capacity”, the Full Court said: A spouse who has assets which are not income-producing but which could be used for that purpose has a capacity to earn the amount which those assets reasonably invested or utilised would produce…ability to pay has a similar meaning and must be judged in the light of all the circumstances, mental and physical resources, money at his disposal, capital position and current necessary expenditure. The absence of a regular income may be important but not decisive…ability to earn means capacity to work and earn but also any other means by which the respondent either does or could obtain income (citations omitted). [227] The discretionary nature of the assessment of the husband’s earning capacity must focus on all the circumstances but it cannot be a de facto or second property settlement (because s 79 has been excluded by the parties’ 2000 settlement) nor can it be “palm tree justice” (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 257; 9 ALR 551 at 561; 1 Fam LR 11,297 at 11,306). In respect of the latter, four justices of the High Court of Australia reminded the court that notwithstanding the wide discretion, it must be exercised in accordance with legal principles. Those principles are reflected in the relevant sections of the Act. For example, spousal maintenance is not payable as of right; it only arises if the applicant establishes an inability to adequately support herself and then the second limb of the test becomes the focus. ...": Bodilly & Hand [2019] FamCA 210.
Is wife required to draw on capital assets?
"Assuming all of the above to be accurate, it can be seen that the wife would have a need for spouse maintenance following the making of the orders proposed for property settlement. Her weekly need is quantified at $664 per week. With respect to the issue of the wife’s ability to generate income through the capital value of assets in her name, specifically the Suburb B property, and how this may influence the Court’s decision as to the quantum of spouse maintenance that she might require, it is apt to note that this issue has been the subject of consideration in prior decisions of the court. It is uncontroversial that in making an order for spouse maintenance the court is to have regard to any orders made or proposed to be made under s 79. To this end, s 75(2)(n) states: (2)The matters so to be taken into account are: … (n)the terms of any order made or proposed to be made under s 79 in relation to: (i)the properties of the parties; … In In the Marriage of Bevan (1995) FLC 92–600 (“In the Marriage of Bevan”) the Full Court considered the interrelationship between ss 74 and s 75(2)(n) for the purpose of arriving at an order for spouse maintenance that was “proper”. Their Honours Nicholson CJ, Lindenmayer and McGovern JJ held at [81,979]: In the present case it is clear that his Honour did not pay regard to the terms of the order which he proposed to make under s 79 and thus fell into error. See alsoPastrikos and Pastrikos (1980) FLC 90–897 at 75,654;Anast and Anastopoulos (1982) FLC 91–201 at 77,061;Little and Little (1990) FLC 92–147 at 78,020. In finding that the trial judge erred in failing to consider proposed s 79 orders when determining a maintenance claim, the Full Court allowed the appeal on that point and proceeded to exercise its discretion to re-determine the matter. In doing so their Honours examined, inter alia, the level of income which might be generated by the parties, following the property settlement, by virtue of their changed capital asset positions. The following was said at 81,980: If one first takes the changed position of the husband into account as a result of the property settlement, he will have a capital asset of $100,000, which will be depleted somewhat by legal costs, as will of course the sums received by the wife. There is no evidence before us as to these costs but, doing the best we can, it seems not unreasonable to ascribe $25,000 to each side in this regard. The husband will thus be left with an asset of $75,000, which at 5%, will return him about $72 per week. However, he is presently living in the matrimonial home rent free, so that it follows that he will be liable for at least that weekly sum and possibly more for rent, so that his financial position will be worsened somewhat. Nevertheless, we are satisfied upon the basis of his Honour’s findings, that he would still be capable of paying maintenance of more than $100 per week, should he be required to do so. The wife on the other hand will have an asset of $155,000, after making a deduction for costs and this will return her at 5% an income of approximately $155 per week, which, when added to her existing income amounts to $379 per week. According to his Honour’s findings, her needs were at least $409 per week. Upon a strict mathematical basis this would appear to justify an award of $30 per week. It was put to us, on behalf of the husband, that such a calculation does not make any allowance for the depletion by the wife of her capital by the application of part of it to her own support. However, we do not think that the law requires that a wife should deplete an already comparatively meagre capital sum, to enable a much higher earning husband to avoid his obligation to maintain a former spouse who is in financial circumstances such as those in which she finds herself. She may well wish to apply all or part of that sum to the purchase of new premises and we do not think that she should be prevented from doing so should she desire it. With respect to the method used to calculate how income might be derived from the capital value of the parties’ assets, I can find no authority which cavils with the approach taken by the Full Court in In the Marriage of Bevan. In Mitchell &Mitchell (1995) FLC 92–601 (“Mitchell”), the Full Court considered, inter alia, how the amount that a wife was to receive under s 79 orders impacted on her claim for spouse maintenance. The following comments were made at 81,995: The days are long gone when it is necessary for an applicant for maintenance to use up all of her assets and capital in order to satisfy the requirement that she is unable to support herself “adequately”. Where the line is to be drawn will depend upon the circumstances of individual cases. It appears to us to be beyond controversy that the amount which the wife in this case is to receive from the property order would not disqualify her from obtaining maintenance. In Line & Line (1997) FLC 92–729 (“Line”), the Full Court expanded upon the comments made in Mitchell and said as follows at [4.87]: 4.87Counsel for the wife further submitted that the wife should not necessarily be forced to draw upon her property settlement moneys to provide for her support. In support of this submission he relied upon some dicta of the Full Court in Mitchell & Mitchell (1995) FLC 92–601 at 81,994 and following. In relation to that, all we would say is that every case depends upon its own facts, and that whilst a spouse is certainly not obliged to exhaust his or her property entitlement in order to establish a need for maintenance, it does not follow that a spouse in all circumstances is entitled to retain his or her entire property settlement proceeds intact and call upon the other spouse to fully support him or her. Nor is a spouse who receives a lump sum of money by way of property order necessarily entitled to earmark all of those funds for the purchase of a house or some other capital expenditure, and again seek to depend entirely on the other spouse for weekly support in the form of maintenance payments. It is a question of balance and reasonableness in each case, and in many cases it is certainly appropriate, in assessing the needs of the spouse claiming maintenance, to make some allowance on the income side for potential interest earned upon all or part of the capital coming to that spouse from the property orders. The Full Court’s comments in Mitchell were also considered in Pearce & Pearce [2003] FamCA 194 (“Pearce”) in an appeal from a decision of the then Federal Magistrates Court. In his analysis of what was required to produce a just order, Warnick J emphasised the need to examine the financial situation of both parties. His Honour said at [14]: 14.As is clear from the passage quoted from Mitchell (above) “where the line is to be drawn will depend upon circumstances of individual cases”. It follows that in deciding what significance to attach to the presence of a capital sum available to an applicant for maintenance, it will be necessary to examine the overall financial circumstances of both parties and to compare them in a meaningful way to discern the justice of the order to be made. In this case, as can be seen in these reasons, both parties will leave the marriage with substantial assets and superannuation. The husband will also retain valuable resources. In the circumstances of this case I consider it is appropriate to look at the wife’s available resources after accommodating herself in a property of comparable value to that of the husband. It is not a case where I consider it would be appropriate to consider all of the wife’s available assets as an investment fund to be applied for her support.": Ziska v Ziska [2013] FamCA 789; BC201352854.
[B] Relationship between Property Settlement, Child Support, Child Maintenance and Spousal Maintenance
"Section 75(2) serves many masters. It contains matters to be considered in both s 74 (spousal maintenance) and s 79 (alteration of property) proceedings. It contains matters relevant to the capacity of the payer to make maintenance payments, and to the needs of the payee to receive them. It contains matters which are relevant to comparing the situation of the parties when deciding what an appropriate adjustment of property interests should be. But its provisions must be read as ancillary to the power being exercised in each case. The maintenance power is to be found within the confines of ss 72 and 74, the property power within the confines of s 79 sub-ss (1) and (2). It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of "the commitments of each of the parties that are necessary to enable the party to support...a child...that the party has a duty to maintain" has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet. By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children. Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act. There is, however, an overlap between the various sections. In order to avoid "double dipping", s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order: "any payments...made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent...to the carer entitled to child support...for the benefit of the child." As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future. Each relevant area of legislation requires different considerations. The obligation to maintain children under Part VII of the Family Law Act is, like the obligation to provide child support under the Child Support (Assessment) Act, an obligation which has priority over all commitments of a parent other than commitments necessary to enable the parent to support himself or herself or any other child or other person that parent has a duty to maintain and is not of a lower priority than a duty of a parent to maintain any other child or any other person. Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance. Spousal maintenance is ultimately governed by the provisions of ss 72 and 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant's own self-support. In this case, the wife's duty to maintain her own children was only a duty to make an equitable contribution towards their support. The extent of that equitable contribution had not been evaluated by the trial Judge but could probably be said to have been non-existent having regard to the vast amount of wealth available to the husband. On that analysis, even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to enable the wife to support her children, it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife. It certainly could not be seen as an element of her self-support. In our view, we must conclude that his Honour erred when taking into account what his Honour described as "the obligation to maintain the children pursuant to s 75(2)(d)". In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself.": Stein v Stein [2000] FamCA 102, [48]-[57].
> "47. In determining the quantum of spousal maintenance, his Honour was obliged to take into account under s 75(2)(na) not only child support which a parent is providing, but child support which a parent might be liable to provide in the future. 48. Section 75(2) serves many masters. It contains matters to be considered in both s 74 (spousal maintenance) and s 79 (alteration of property) proceedings. It contains matters relevant to the capacity of the payer to make maintenance payments, and to the needs of the payee to receive them. It contains matters which are relevant to comparing the situation of the parties when deciding what an appropriate adjustment of property interests should be. But its provisions must be read as ancillary to the power being exercised in each case. The maintenance power is to be found within the confines of ss 72 and 74, the property power within the confines of s 79 sub-ss (1) and (2). 49. It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of ``the commitments of each of the parties that are necessary to enable the party to support... a child... that the party has a duty to maintain'' has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet. 50. By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children. 51. Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act. 52. There is, however, an overlap between the various sections. In order to avoid ``double dipping'', s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order: ``any payments... made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent... to the carer entitled to child support... for the benefit of the child.'' As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future. 53. Each relevant area of legislation requires different considerations. The obligation to maintain children under Part VII of the Family Law Act is, like the obligation to provide child support under the Child Support (Assessment) Act, an obligation which has priority over all commitments of a parent other than commitments necessary to enable the parent to support himself or herself or any other child or other person that parent has a duty to maintain and is not of a lower priority than a duty of a parent to maintain any other child or any other person. 54. Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance. 55. Spousal maintenance is ultimately governed by the provisions of ss 72 and 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant's own self-support. 56. In this case, the wife's duty to maintain her own children was only a duty to make an equitable contribution towards their support. The extent of that equitable contribution had not been evaluated by the trial Judge but could probably be said to have been non-existent having regard to the vast amount of wealth available to the husband. On that analysis, even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to enable the wife to support her children, it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife. It certainly could not be seen as an element of her self-support. 57. In our view, we must conclude that his Honour erred when taking into account what his Honour described as ``the obligation to maintain the children pursuant to s 75(2)(d)''. In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself.": Miller v Miller [2007] FamCA 423.
Double dipping:
> "As to the relevance or otherwise of the expenses of the children, the tension is between the fact that the application is for spousal maintenance (and not for support for the children per se) and the requirements of s 75(2)(d) of the Act. That paragraph provides that in considering spousal maintenance the court shall take into account: … (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and … The difficulty is often where to draw the line, and that is evidenced in the authorities. However, the strongest statements are those made by the Full Court in Stein & Stein (2000) FLC 93-004. There the trial judge made an order for interim spousal maintenance of $1,500 per week. The husband appealed raising one issue, namely whether the costs of supporting the parties’ children should be taken into account in assessing the wife’s needs for maintenance. The Full Court reviewed a number of authorities and then said this about the relevant legislation: 49. It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of the commitments of each of the parties that are necessary to enable the party to support...a child...that the party has a duty to maintain has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet. … 51. Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act. 52. There is, however, an overlap between the various sections. In order to avoid "double dipping", s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order: any payments...made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent...to the carer entitled to child support...for the benefit of the child. As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future. … 54. Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance. Ultimately on the facts in that case the Full Court found that the trial judge erred in taking into account in determining the claim for interim spousal maintenance the cost of support of the children of the parties pursuant to s 75(2)(d) of the Act. Their Honours were of the view (at [57]) that: … In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself. It needs to be said though that in subsequent decisions this case has been distinguished on the factual basis that “the husband’s wealth [in the order of $20,000,000] meant that he would be called on to bear the entire cost of meeting the reasonable needs of the children” and thus it was clearly “erroneous” to take “into account in the context of the wife’s spousal maintenance claim the expenses of those children” (Drysdale & Drysdale [2011] FamCAFC 85 at [36]). Thus, in Drysdale, Coleman J, sitting as the Full Court found on the facts of that case that there was no impediment to the court having regard to “commitments” of the wife that were “necessary to enable” her to support herself and a child who she had “a duty to maintain”. In this case, although there is no such factual distinction to be drawn, it was still necessary for the trial judge to carefully consider what (if any) costs of support of the children should be taken into account in assessing the needs of the wife. His Honour though did not do this; his Honour without any express consideration, took into account all of the expenses of the children in fixing the needs of the wife, and thus he has erred.": Padnall & Padnall [2014] FamCAFC 145, [47]-[51].
> "In Stein & Stein (2000) FLC 93-004, the Full Court held that the power of the Court to make orders for spousal maintenance is not to be confused with the power of the Court to make orders for the support of children ... Thus, the necessary expenses of the wife for the purpose of her application for spousal maintenance are confined to those applicable to her own support.": Crichton & Crichton [2018] FamCA 1075, [32]-[33].
> "The wife also sought “$2,000.00 per year towards J’s yearly holiday”. I have already included an allowance of $20.00 per week for holidays in the schedule of expenses incurred by the wife in maintaining J (which schedule, I have found, represents his proper needs whilst he is with the wife). Ms Johns submitted, and I accept, that to make a further allowance for holidays for J would amount to “double dipping”. In any event, I am satisfied that the quantum of child support that I have ordered is fair and reasonable, and appropriate to enable (or assist) the wife to meet J’s proper needs. I would add that, in my opinion, an allowance of $2,000.00 per year for a holiday for J is excessive, and no evidence was presented to support the specific amount claimed.": AR & AL [2004] FMCAFam 597, [114].
> property settlement and child maintenance: "Section 66K requires a court to consider a variety of matters in determining the contribution to be made by the parent or parents. They include the objects of the legislation. They include the income, earning capacity, property and financial resources of the parties. A court must consider the commitments of those parents necessary for their own support. It must take into account the direct and indirect costs of the caring parent including any income and earning capacity foregone by virtue of the caring role. Having found that the wife has the caring responsibility, the wife’s lost opportunity becomes relevant in deciding whether to divide the financial obligation equally but so too does any property settlement division in which there is disparity between the parents. It would be inappropriate to “double dip”.": Jamine & Jamine & Anor (No 2) [2011] FamCA 843, [198].
> Hodges & Rose [2014] FamCA 430, [165].
[B.A] Intersection between Child Maintenance and Child Support
"To put it simply, the difference between child support and child maintenance is that child support is financial support for children under the age of 18 whereas child maintenance is financial support for adult children over the age of 18. When it comes to child support, parents have the option to put a private agreement in place. However, if an amicable agreement cannot be made, either party can apply to the Department of Human Services (Child Support) via Services Australia for an administrative assessment to determine the amount of support payable. This assessment takes a number of factors into account, including the adjusted taxable income of both parents, the general costs associated with care for the child as well as the time each parent spends in the caregiver role. In contrast, child maintenance is paid when the child support legislation is no longer applicable due to the child being over the age of 18, but there is still a need for ongoing financial support. When a court orders child maintenance to be paid, typically it is because they have found that the financial support is necessary for the adult child to complete their schooling, or because the adult child has a disability or illness which requires care. It is worth noting that applications for court-ordered maintenance can also be made if a child has acquired a mental or physical disability after turning 18.": 'What is the Difference Between Child Support and Child Maintenance?' (Emerson Family Law, Webpage) <https://emfl.com.au/the-difference-between-child-support-and-child-maintenance-our-child-support-lawyers-explain/>, archived at <https://archive.md/tAzos>.
Maintenance Liability under CS Scheme: "The plaintiff submitted that the rights and duties respecting maintenance of children are now found in the Family Law Act 1975 (Cth) and are not rights and duties derived from the [Child Support] Assessment Act or the [Child Support] Registration and Collection Act. It was submitted that the Assessment Act and the Registration and Collection Act fixed the extent of, or varied the extent of, rights and duties which were to be found in s 66C of the Family Law Act. That section provides that, subject to Div 7 of Pt VII of that Act, "[t]he parents of a child have … the primary duty to maintain the child". No doubt it is right to say, as the plaintiff submitted, that under English common law a parent owed no duty to maintain a child that was a duty enforceable by court action[61]. But, in England, statute intervened in that regard as early as the first Poor Law. That obliged parents, on pain of penalty, to maintain their poor children[62]. So, too, in Australia, legislation in one form or another has, for many years, obliged one or both parents of a child to provide some maintenance for the child[63]. And often, such legislation has provided for the curial determination of the amount that was to be paid as maintenance[64]. It may be doubted, however, that s 66C of the Family Law Act, or the other provisions of subdiv B of Div 7 of Pt VII of that Act which set out "statements of objects and principles relevant to the making of child maintenance orders"[65], can be understood as creating a duty, the terms or content of which are different from, or wider than, the particular obligations which arise under the other provisions of the Family Law Act which deal with maintenance of children and orders made under that Act. [61] Mortimore v Wright (1840) 6 M & W 482 [151 ER 502]; Shelton v Springett (1851) 11 CB 452 [138 ER 549]; Bazeley v Forder (1868) LR 3 QB 559 at 565; Coldingham Parish Council v Smith [1918] 2 KB 90 at 96‑97; National Assistance Board v Wilkinson [1952] 2 QB 648 at 657. Cf the position under the common law of Scotland noted in Coldingham Parish Council v Smith [1918] 2 KB 90 at 97. [62] The Poor Relief Act 1601 (UK), s 7 (43 Eliz c 2). [63] Wives Act 1840 (NSW) (4 Vict No 5). [64] See, for example, Wives Act 1840, s 7. [65] Family Law Act, s 66A(a). If orders for the maintenance of children are made under the Family Law Act, those orders may give rise to a registrable maintenance liability under the Registration and Collection Act[66]. The Registrar's exercise of the power to register either a liability of that kind, or any other form of registrable maintenance liability, does not constitute the exercise of the judicial power of the Commonwealth. It is an entirely administrative act which requires the Registrar to decide whether the statutory criteria for registration are met. Very many administrative tasks for which legislation provides require decisions of that kind. In the end, it appeared that the weight of the plaintiff's argument did not rest on this aspect of the Registration and Collection Act. Rather, the plaintiff's submissions focused more upon the powers of the Registrar under the Assessment Act than upon the Registrar's duty to register certain kinds of liability under the Registration and Collection Act. [66] s 17. It is, therefore, necessary to notice some further aspects of the Assessment Act. Of those, there is one to which reference has already been made but which is of particular importance. Section 79 of the Assessment Act provides that an amount of child support under the Act, which is due and payable by a liable parent to a carer, is a debt due and payable by the liable parent to the carer. It may be sued for and recovered in a court. What is important for the purposes of the present inquiry is, first, that the Registrar can take no step to enforce an assessment made under the Act – that is a matter for those who have the benefit or burden of the assessment and it is to be done by recourse to the courts in the same way as any other debt is enforced. There is not that capacity (so often found when judicial power is exercised) to make a decision enforceable by execution[67]. Secondly, the assessment creates and quantifies the debt. It does not determine a question about the existence of any right or obligation[68]. It is the factum on which other provisions of the Assessment Act and the Registration and Collection Act operate, thereby creating new rights and new obligations which are to govern the future[69]. [67] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 268 per Deane, Dawson, Gaudron and McHugh JJ. See also Federal Commissioner of Taxation v Munro (1926) 38 CLR 153 at 176 per Isaacs J; Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 198‑199 per Latham CJ. [68] R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361 at 374 per Kitto J. [69] Tasmanian Breweries (1970) 123 CLR 361 at 378 per Kitto J. An administrative assessment of child support under Pt 5 of the Assessment Act requires[70] the Registrar to "assess under [the Assessment Act] the annual rate of the child support payable by the liable parent to the carer entitled to the child support for the child for the days in the child support period that starts on the day the application was made". This assessment requires the application of relevant formulae. The basic formula[71] requires the multiplication of a "Child support percentage" (fixed by s 37 according to the number of children) and what is called the "Adjusted income amount". The adjusted income amount is determined by reference to the amount of the liable parent's taxable income for the previous year of income, adjusted[72] to take account of some other amounts – exempt foreign income, rental property loss and reportable fringe benefits total – amounts which, it might be thought, would increase the liable parent's capacity to pay child support. [70] s 31(2). [71] s 36. [72] s 38A. The Assessment Act provides for some modifications of the basic formula in certain cases[73]. It provides for cases in which the care of children is shared or divided between parents[74], for cases where there are two liable parents[75], for cases where there are two or more carers entitled to child support[76], and for cases where care of the child is modified or affected by a court order or parenting plan[77]. The detail of those provisions is not important. What is important is that all of them require the application of relevant formulae. [73] Pt 5, Div 2, subdivs C and D (ss 42-46). [74] Pt 5, Div 2, subdiv E (ss 47-49). [75] Pt 5, Div 2, subdiv F (ss 50-52). [76] Pt 5, Div 2, subdiv G (ss 53-54). [77] Pt 5, Div 2, subdiv H (ss 54A-54B). None of the provisions requiring administrative assessment of child support permit, let alone require, the Registrar to make any decision other than one attributing the circumstances disclosed by the application to one or other of the various statutory classes we have just mentioned, followed by a mathematical calculation of the monetary consequences that the Assessment Act prescribes. And because "the Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter"[78] there is no requirement for the Registrar to engage in any processes of fact finding[79]. [78] s 29(1). [79] R v Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617 at 627 per Mason J. The Registrar may make a departure determination on the application of a liable parent or carer only if satisfied of certain matters[80]. They are[81] that, in the special circumstances of the case, the capacity of either parent of the child to provide financial support for the child is significantly reduced for one of several specified reasons[82], or the costs of maintaining the child are significantly affected by one of several matters[83], or the application of the provisions of the Act for dealing with administrative assessments "would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child"[84], again, for one or other reason identified in the Act. [80] Departure determinations initiated in this way are regulated by Pt 6A, Div 2 (ss 98B‑98JA). [81] ss 98C and 117(2). [82] s 117(2)(a). [83] s 117(2)(b). [84] s 117(2)(c). Similarly, the Registrar may initiate the making of a departure determination under Pt 6A[85] if, among other things, he or she is satisfied that the application of the provisions relating to administrative assessment "would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, earning capacity, property and financial resources of either parent"[86]. [85] Departure determinations initiated by the Registrar are regulated by Pt 6A, Div 3 (ss 98K‑98R). [86] s 98L(1)(a). Obviously, the provisions governing both kinds of departure determination, with their reference to what would be "unjust and inequitable" require the making of a judgment about which opinions may differ in a particular case. And because the circumstances that may touch a decision about what would be unjust and inequitable may vary so widely, provision is made for the Registrar to refuse to make a departure determination, whether initiated by a liable parent or carer or by the Registrar, where "the issues involved are too complex to be dealt with" under Pt 6A[87]. In such a case, the Registrar may recommend that application be made to a court having jurisdiction under the Act for an order under Div 4 of Pt 7. [87] ss 98E and 98R. Part 7 of the Assessment Act (ss 99‑146) deals with the jurisdiction of courts under the Act. In particular, provision is made[88] for applications to a court for a declaration about the applicability of the administrative assessment provisions. Provision is made[89] for what are called "appeals" against incorrect administrative assessments and[90] for orders for departure from administrative assessment. (The reference to "appeal", although similarly used in other contexts[91], may mislead. The proceeding which is so described is the first application of judicial power; it is an exercise of original, not appellate jurisdiction.) An order by a court for departure from an administrative assessment may be made on the grounds on which the Registrar may make a departure determination[92]. The other provisions of Pt 7 of the Assessment Act are not immediately relevant to the present question. [88] Pt 7, Div 2 (ss 106-109). [89] Pt 7, Div 3 (ss 110-113). [90] Pt 7, Div 4 (ss 114-120). [91] For example, Administrative Appeals Tribunal Act 1975 (Cth), s 44. [92] s 117. Finally, and no less importantly, it is necessary to notice the provisions made for objection to the Registrar's assessment of child support, whether by way of administrative assessment or departure determination. Part 6B of the Act (ss 98W‑98ZJ) provides for objections to and internal reconsideration of decisions of the Registrar, including those decisions that are reviewable by a court having jurisdiction under the Act. The decisions reviewable by a court include decisions to accept or not accept an application for administrative assessment[93], decisions as to the particulars of an administrative assessment[94] and decisions to make or refuse to make a departure determination, whether initiated by the liable parent or carer, or by the Registrar[95]. A person may not appeal to a court against the particulars of an administrative assessment unless the person has objected under s 98X, and the objection has been disallowed or allowed only in part[96]. Similarly, an application for a declaration about an administrative assessment may be made only if the objection procedure has first been exhausted[97]. [93] s 98X(1)(a) and (b). [94] s 98X(1)(c). [95] s 98X(1)(d). [96] s 110(1A). [97] ss 106(1A), 106A(1A), 107(1A). Several points emerge from an examination of these features of the Assessment Act. First, as mentioned at the outset, the Registrar's assessment, whether as an administrative assessment or as a departure determination, is the factum by reference to which the statute creates rights for the future which then are to be enforced by resort to the courts; the assessment does not adjudge existing rights. Secondly, the Registrar's assessment, again whether as an administrative assessment or as a departure determination, is not final. It is open to the processes of objection and then "appeal" to a court. Thirdly, so far as administrative assessments are concerned, the statutory processes are wholly administrative. So far as departure determinations are concerned, the Registrar may make such a determination, but need not if the issues are "too complex". If the Registrar does make a departure determination, the party dissatisfied can object and if still dissatisfied go to a court; if the Registrar does not make such a determination, again the party dissatisfied can object and then go to court. In either event the Court will decide the question afresh, without regard to what the Registrar has done. Neither the Registration and Collection Act nor the Assessment Act vests the judicial power of the Commonwealth in the Registrar.": Luton v Lessels [2002] HCA 13, [64]-[77] (Gaudron & Hayne JJ).
[B.B] s 66 E Family Law Act 1975
Child maintenance order not to be made etc. if application for administrative assessment of child support could be made : s 66E Family Law Act 1975 (Cth).
"Section 66E of the Family Law Act 1975 (Cth) provides that, irrespective of whether an application for administrative assessment of child support has been made in relation to X or not, the Court must not make a child maintenance order if an application could properly be made under the Child Support (Assessment) Act 1989 (Cth) for a parent to be assessed in respect of the contribution to meeting X’s financial support. Thus, whilst I cannot make such an order today, I also specifically note that, during his cross-examination, the father’s evidence was that he would meet all of X’s fees for her to attend her current school for this year. No doubt such payment would assist the mother as it would alleviate the impost of school fees on her financial resources. Whilst made, I have little doubt in concluding that the father’s offer to meet all of X’s school fees this year would not be seen by him as extinguishing his parental obligation to financially support X – as he has no doubt done since she started to live with him on an alternate week basis in mid-December 2020.": Elder v Hinh [2021] FamCA 87, [67].
Parents resident overseas? Australian citizen child: "Having observed that s 66E of the Act prevents the Court from making a maintenance order for a child if an application for administrative assessment of child support could properly be made under the Assessment Act, her Honour noted that the wife had not made such an application to the Child Support Agency and that there was no impediment to her taking that course, with the result that there was no jurisdiction reposed in the Court to make the orders sought by her. ... Before turning to the grounds it is appropriate to consider the legislation governing the Court’s jurisdiction to make child maintenance orders that the wife seeks to invoke. Child support in Australia is governed by the Assessment Act and is largely an administrative process. It is common ground that the wife has not made an application for child support under the Assessment Act. Part VII Division 7 of the Act deals with child maintenance. Section 66E(1) prevents a court from making an order under Part VII if “an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child…”. Section 66E(2) provides for subsection (1) to have effect whether or not an application for administrative assessment of child support has been made. Thus it can be seen that jurisdiction of the Court to hear and determine the wife’s application depends upon her establishing that an application could not properly be made for child support under the Assessment Act. The wife contends that there is no basis on which she could apply for child support under the child support legislation and thus the Court has jurisdiction to entertain her application. It thus becomes necessary to consider the relevant applicable child support legislation. We now turn to the provisions of the Assessment Act which govern the jurisdiction of the Registrar to accept an application. In this case the ability to make an application is governed by s 24, which relevantly provides: ... In this case, the child fulfils the criteria in s 24(1). He is an “eligible child”, is under the age of 18 and is not a member of a couple. Although not present in Australia, he appears to be an Australian citizen. The question of whether he is ordinarily resident in Australia is the subject of some dispute. But his citizenship of or residence in Australia is not required to found jurisdiction as the mother is a resident of Sri Lanka, which is a “reciprocating jurisdiction” under the Assessment Act (see reg 3 of the Child Support (Assessment) Regulations 1989 (Cth) and Schedule 2 of the Child Support (Registration and Collection) Regulations 1988 (Cth)). ... As we have earlier recorded, the wife contends that the husband is not resident in Australia. She contended for this position before Judicial Registrar Johnston and before her Honour. She continues to make that submission on appeal. She contends that as both she and the husband are not resident in Australia but rather are resident in Sri Lanka, she cannot apply for child support under the Assessment Act. The complex sections of the child support legislation to which we have referred are not easy to interpret; however, the effect of their interplay, although not easy to interpret, is that if both the payee parent and the payer parent are not residents of Australia, even if both are living in a reciprocating jurisdiction, the Child Support Registrar could not properly accept an application for an assessment of child support even though the child is an Australian citizen. This conclusion is fortified by reference to the Explanatory Memorandum accompanying the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth), which introduced the current version of s 29A into the Assessment Act, among other amendments. The Explanatory Memorandum says at page 37: One parent to reside in Australia In several provisions, the need for one parent to reside, or continue to reside, in Australia is being clarified. Some of the provisions currently envisage that both parents may live overseas – this is not the intended policy. Such cases should not be dealt with under Australian child support law. We note that if the wife were to be correct in her contention that both parents were not resident (as defined) in Australia, she would be nevertheless be able to invoke the jurisdiction under the Act to make orders for child maintenance. This is because s 69E(1) of the Act confers jurisdiction on the Court in various circumstances including where the child or a party is an Australian citizen.": Peters & Peters & Ors [2012] FamCAFC 105, [10], [17]-[22], [27]-[30].
Child habitually resident overseas with one parent, forum non conveniens: "The respondent seeks maintenance for the child of the parties. If “an application could properly be made” by the respondent mother for child support under the Child Support (Assessment) Act 1989 (Cth) (“the Child Support Act”), the Court may not make a child maintenance order: see s 66E of the Family Law Act. Country B has been designated as a “reciprocating jurisdiction” for the purpose of the child support scheme in Australia: see r 10 and Sch 2 of the Child Support (Registration and Collection) Regulations 2018 (Cth). The respondent may apply for child support under the Child Support Act as the child is an Australian Citizen (see s 24(1)(b) of the Child Support Act). The application for child support must be “given to the [Child Support] Registrar” by an “overseas authority” (s 29B(1)(a) of the Child Support Act). The definition of “overseas authority” is set out in s 4 of the Child Support Act as follows: overseas authority means a judicial or administrative authority of a reciprocating jurisdiction that is responsible for giving effect to an international maintenance arrangement. There is no “overseas authority” identified on the Services Australia website (the agency that now has responsibility for child support within Australia) or within the Child Support Regulations, with respect to Country B. Country B does not appear to be a party to the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance, and thus has no central authority for the purpose of that Convention. Accordingly, submissions from the parties and the Australian Child Support Registrar were sought as to whether there is an “overseas authority” (within the meaning of the term used in the child support legislation) in Country B, and if so, the identity of that authority (or the relevant authority for the area in which the respondent resides if there is more than one authority in Country B). The Child Support Registrar’s submissions went no further than supposition as to what “appears” to be the relevant authority, saying merely: 6. The Registrar confirms that, for residents of [Country B], payees can contact their local court that deals with child or spousal maintenance. It appears that the ‘overseas authority’ relevant here is the Family Court, or the District Court, in the […] region. The respondent should make inquiries with these courts. 7. Once the respondent has identified the relevant court in her region, she can complete the form found here, and request the overseas authority to complete page 11 and forward the document to Services Australia (see page 2). … 10. The Registrar notes that further detail in response to the questions asked by the Court possibly raise questions of the interpretation of a foreign law, which will generally require expert evidence. The Registrar will, if the Court so directs, cause this evidence to be obtained. However, if the above responses are sufficient, the Registrar would be grateful if the Court can advise accordingly. (Child Support Registrar’s Written Submissions, dated 20 March 2024) It appears from these submissions that the Child Support Registrar takes the view that determining the identity of the relevant “overseas authority” that is “responsible for giving effect to an international maintenance arrangement” is a question to be determined by the law in Country B. It is entirely unclear how the Child Support Registrar determines whether an application form has been “given to the [Child Support] Registrar” by an “overseas authority” as required by s 29B(1)(a) of the Child Support Act. In their Written Submissions dated 20 March 2024, the Child Support Registrar submitted (in a footnote) that “In the event [further evidence] is required, the [Child Support] Registrar anticipates that consultation with various stakeholders will be required.” The parties were provided a copy of the Child Support Registrar’s Written Submissions and invited to make submissions in reply to the Child Support Registrar’s response, on the basis that it appears the mother can make a Child Support Application through an authority in Country B. The parties did not provide any submissions in reply. On the material currently before the Court, it appears that the mother can apply for child support using the form available on the internet and lodge it with the court in Country B and that court may give it to the Australian Child Support Registrar. The mother has not disputed this claim. I am therefore unable to conclude that there is not an “overseas authority” as contemplated by s 29B(1)(a) of the Child Support Act, on the material before me. In these circumstances it is appropriate to summarily dismiss the application for child maintenance made by the mother. CONCLUSION When the circumstances of this case are viewed as a whole it is clear that, even taking the father’s case at its highest, the child is now habitually resident in Country B. As s 111CD of the Act prevents the father from pursuing parenting proceedings with respect to the child in the Australian Courts in the circumstances of this case, it is appropriate that his application be dismissed. Just as s 111CD of the Act prevents the father from obtaining parenting orders with respect to the child whilst the child remains habitually resident in Country B, it similarly prevents the mother from obtaining parenting orders. The Country B Courts are seized of jurisdiction, and have already exercised that jurisdiction. The dispute must be litigated in the courts in Country B, not in Australia. As the mother may apply for a child support assessment (by lodging an application with the overseas authority in Country B) there is no power to make a child maintenance order.": Echolls & Rinna [2024] FedCFamC1F 275, [35]-[45].
Orders for payment of private schooling fees in context of parenting orders, where application dealt only with parenting orders and not child support issues - Held, matter for child support [211]: "During the final hearing, I referred the practitioners to the matter of Licata & Buxton [2019] FCCA [3181] (‘Licata & Buxton’), a decision of Judge Kelly that contained a helpful summary of various Full Court and Family Court authorities on choice of school disputes. I directed counsel to refer me to a list of authorities on the extent of my power (or lack thereof) to compel a parent to pay fees for a school they disagreed to send the child to in proceedings only dealing with parenting orders and not dealing with child support issues. Counsel for the Mother sent in submissions on 28 September 2022 that contained simply: With respect to the power of the Court to Order Private Schooling and the cost of same as a parenting order when the parents don’t consent to private schooling, no relevant authorities have been found to support such power of the court. Counsel for the Father sent in submissions on 29 September 2022. Those submissions were: With respect to the power of the Court to make an Order that the Mother contribute to private school fees - not that this remains in issue given the Father's amended position[2] - counsel refers His Honour to: [2] Amended in final address on day four of the hearing. 1. Love v Henderson (1996) FLC 92-653, per Kay J; particularly: “It is common, and indeed this case represents the normal situation, for the Court to require a party to meet the costs of transporting the child to or from access. In this case, the mother is responsible for the air fares to bring the children to Melbourne. In one sense, that is a child support consideration, because s 117 specifically makes reference to the high costs involved in enabling a parent to have access to a child. It would not be unreasonable, in my view, not outside power, for the Court to impose other conditions on access, which would of their nature involve economic expenditure, or the provision of goods and services which are capable of being acquired by economic expenditure, so that, for instance if one party owned a beach house, if the custodial parent owned a beach house, the Court could order that parent to make the house available for an access period for the non-custodial parent.” … (and) [ellipses in original] “Under s 64, in proceedings in relation to the access to a child, I may make such order as I consider proper and I must regard the welfare of the child as the paramount consideration. In my view this is the dominant section. It gives me almost unbridled powers to make orders which will promote the welfare of the child. Where the legislation does not otherwise allow for the provision of financial support to an access parent, in my view, I can come back to the broad powers contained ins 64 to find the necessary power ...” 2. Stewart & Stewart [2017] FamCAFC 67 per Bryant CJ, Aldridge & Kent JJ; particularly: [l7] “However, a fundamental difficulty with this contention is, as will shortly be demonstrated, that at no point in the proceedings below did the mother seek or advance orders having the effect that the mother would solely bear this liability eliminating any recourse by the mother to seek contribution from the father via the child support agency.” ... (and) [l9] “Whilst without the benefit of full argument on a point not specifically raised by any grounds of the appeal we do not express a concluded view upon it, our preliminary view as expressed during the hearing is that it is difficult to see how orders for the mother to be solely responsible for private school fees could be characterised as a "child maintenance order ... against, or in favour of [the father]" within the meaning of s 66E(l).” [Notation not in original] In Licata & Buxton at [107]-[115] Judge Kelly discussed and summarised the authorities and it is convenient to recite those principles which I apply in this case: [107] There is no legal presumption that favours a child’s primary carer choosing the relevant school that the child attends: Re G, Children’s Schooling (Re G); Low & Chapman. Consequently, there is no onus of proof cast on either party in the determination of the application. [108] The day-to-day reality of where a child does reside predominantly with one parent is, however, of relevance. In general, it will commonly be in a child’s best interests to attend school which is close to his or her predominant place of residence: Bilz & Breugelman; Re G. However, to state a general principle in that form necessarily invites attention to the anterior questions: what is the child’s predominant place of residence? Why is it in a child’s best interests concerning attendance at a school which, although close to one residence, is distant from the other? [109] The parents’ interests in securing an arrangement that is convenient for them is a matter that is appropriate to take into account: Eden & Eden-Proust. This is because, while the interests of the child are required to be the paramount consideration, s 60CA does not provide that those interests are the sole consideration: AMS v AIF; Eden & Eden-Proust. It follows that some regard should be had to the relative inconvenience to each of the parents with respect to matters such as any necessary transport arrangements: Eden & Eden-Proust. [110] For example, in Low & Chapman, Monahan J observed that to enrol a child at a school which was located at a place mid-point between the parties’ residences was perhaps ‘an obvious option’ where the parties live some distance apart. I did not understand His Honour to be suggesting any more than that such an option may be an obvious point for consideration alongside any other suitable options. [111] While it will ordinarily be of importance to consider the effect on the resident parent, this does not mean that the convenience of the non-resident parent is ignored: Bilz & Breugelman. Again, it may be added that the distinction between a resident and non-resident parent becomes diluted where the parties have agreed upon a week about parenting arrangement, particularly one that has been on foot and to which the parties have adhered to for some years. [112] The views of the children may be a relevant but usually not a determinative consideration: s 60CC(3)(a) Bilz & Breugelman; Re G. The child’s views on schooling may be of lesser weight if the child is of a young age: Stevens & McLaren. [113] The process of evaluating competing school proposals should not entail an assessment of the relative merits of the schools preferred by the parties, at least in circumstances where those schools are prima facie satisfactory: Bilz & Breugelman. The location of the school to the children’s residence remains an important factor: Re G. [114] The court may be assisted in the resolution of a schooling dispute by the opinions of an expert: Stevens & McLaren. By s 60CD(2) the court may ‘inform itself of views expressed by a child’ by a number of means, including a report given to the court by a family consultant under s 62G(2) or, subject to the Rules of Court, ‘by such other means as the court thinks appropriate’: Bondelmonte. [115] Competing views have been expressed as to the relevance of the parties’ agreement as to how schooling should be implemented. In Eden & Eden-Proust, Thackray J indicated that the existence of an agreement between parties would be an important factor. In Re G, the parties’ prior agreement on the issue was held not to carry much weight. Because I have determined that E School, a government school, is in the best interests of the children in all the circumstances, it is unnecessary for me to determine the extent of my power to order payment of substantial private school fees in a parenting application where there is not a child support application before me. The Father’s counsel contended that on a parenting application (not a child support application) I have the power to order the permanent payment of substantial school fees. The Mother’s counsel contended that I do not have power to order payment of private school fees; but that I do have power to order payment of government school fees. Both parents sought, in different ways, that educational expenses be shared equally and I will so order. Such order will not apply to before or after school care. ... Further to paragraph 96, the manner of sharing relatively minor expenses agitates the parents and that agitation impacts on the children. The impact upon the children of the parent’s conflict is out of all proportion to the sums of money involved. Each parent asserted that their annual taxable income was approximately $150,000. I was not addressed about whether either party could claim a credit against child support assessments and there is no live child support application before me and it is unclear to me whether either parent had contemplated that matter. So, I do not make any finding or any order in regard to that consequence of the orders that each party seeks in regard to school fees. Absent consent, there are no shortcuts to bypass or circumvent the complexities of the Child Support Registration and Assessment Acts. Unfortunately, that issue will remain one for the child support authorities, review processes and law, if the parents can’t agree.": Umaru & Maletta (No 2) [2023] FedCFamC2F 478, [91]-[96], [211].
[C] Child Support - Administrative Assessment
Antecedents of the conception of a child (except by artificial conception procedure or surrogacy) are not a relevant factor as to whether child covered by child support scheme - child born out of liaison between prostitute mother and client: Lilley & Logan [2009] FMCAfam 868 <https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FMCAfam/2009/868.html>, archived at <https://archive.is/fEHPG>.
> Court noted however, that question of whether client may be entitled to damages against the mother or brothel may be a possibility and a matter for a different Court: [11]-[13]: "Once conception occurs and a child is born, a child is entitled to the support of the parents. The amount of support is determined by a child support assessment under the Child Support Scheme. The antecedents of the conception do not appear to me to destroy a child’s entitlement under the Child Support Scheme and the Family Law Act 1975. For these reasons I find that the child is properly covered by the Child Support Scheme and properly the subject of a child support assessment. Whether or not the applicant has an independent cause of action against the proprietors of the brothel or escort service concerned and/or the mother, pursuant to any of the commercial arrangements that he refers to is not a matter that I have to determine in this application which deals solely with the application of the Child Support Scheme to the particular child. To the extent he has any rights to damages, his assessment for child support may be relevant in those independent actions, when assessing the amount of any damages."
> See also discussion in, 'Children and the reach of the Child Support Scheme' (Hutchinson Legal, 8 February 2010) <https://www.hutchinsonlegal.com.au/resources/children-and-the-reach-of-the-child-support-scheme>, archived at <https://archive.is/QA35W>.
> see also, Fiona Hudson, 'A prostitute gave birth, and the accidental dad's in court' (Herald Sun, 22 August 2009) <https://www.heraldsun.com.au/news/a-prostitute-gave-birth-and-the-accidental-dads-in-court/news-story/50bd88e64a070b5c3614edd77eee92ed>, archived at <https://archive.is/50dTv>.
> see also, presumption of parentage, s 29(2) CS Act.
Child Support - Private Schooling:
> DSS: Change of Assessment - Administrative Review - Departure Order: see '2.6.9 Reason 3 - high costs of caring for, educating or training the child in the manner expected by the parents' (DSS Child Support Guide) <https://guides.dss.gov.au/child-support-guide/2/6/9>: "... Where a parent agreed to the child attending a private school they will be liable to contribute to the fees to the extent that they have the financial capacity. Where a parent has not agreed to the child attending a private school they will not be liable to contribute to the fees unless there are reasons relating to the child's welfare that mean that the child should attend a private school (and the costs would then relate to the child's special needs - see Reason 2 (2.6.8)). In deciding whether the reason is established the Registrar will consider the type of education intended by both parents for the child, rather than any particular school intended by the parents (Wild v Ballard (1997) FLC 92-771). The Registrar will also consider the circumstances at the time of separation. If the child was attending a particular private school, or was participating in a particular extracurricular activity, then this element will usually be established. If not, evidence of the parents' expectation would need to be provided, for example, the payment of fees, evidence of joint enrolment, contribution towards a scholarship fund to pay private school fees. The parents' expectation can be created at any time, not just during the period that the parents lived together. If the parents had an expectation that the child should attend a particular type of primary school, the Registrar will not presume that the same expectation automatically applies to a similar type of secondary school. When considering the parents' expectations, the Registrar will take into account all relevant evidence. In some cases, evidence may exist that clearly indicates that the parents jointly intended to educate their child in the private school system. However, if more recent evidence indicates that the parents' expectations have changed, the older evidence may be irrelevant. For example, prior to separation, the parents enrol their child in a private school and that evidence is provided to the Registrar in support of an application for a change under Reason 3. The other parent responds to the application and provides a copy of a parenting plan that the parents entered into after separation. The parenting plan clearly states that the child will be educated at a public school, thereby providing more recent evidence about the parents' expectations regarding schooling. In this instance, the reason would not be established."
Exchange of emails - agreement as to private schooling in addition to private schooling - assessment upheld: CXW22 v CXX22 [2023] FedCFamC2G 580, [74]-[87].
Grounds for Departure from DSS Administrative Assessment - Private Schooling: Jing Zhi Wong
> See case for discussion of all statutory criteria: "Departure determinations are made under Part 6A of the Child Support (Assessment) Act 1989 (“the Act”). In that Part, section 98C provides that, for a departure determination to be made, the Registrar must be satisfied that at least one of the grounds set out in the law exists and if so, must also be satisfied that the departure determination made is just and equitable and is otherwise proper. The grounds to be considered relate to the payment of private school fees for the children and to the income, property or financial resources of each parent. IS THERE A GROUND FOR DEPARTURE? School fees The relevant ground in the Act is in subparagraph 117(b)(i). The ground exists if: in the special circumstances of the case, the costs of maintaining the child are significantly affected … because the child is being cared for, educated or trained in the manner that was expected by his or her parents… In 2015, both children were undertaking secondary education at private schools in [State 1]: [Child 2] at [one] College and [Child 1] at [another] College. Mr Murphy provided invoices showing that the fees for 2015 for [Child 2] were $23,720 and for [Child 1], $23,940. The total of just under $48,000 is clearly a cost which significantly affects the cost of maintaining [Child 2] and [Child 1]. The question is whether this was the manner of education expected by both parents. It is significant that the specific word in the relevant statute is “expected”. That word does not have the same meaning as “agreed” or “intended”, both of which appear in the evidence relating to the issue. Furthermore, the test goes to the question of a past expectation: Mee v Ferguson.[1] [1] (1986) 84 FLR 179 In this case, Mr Murphy and Mrs Murphy separated when the children were in grades 1 and 2 respectively, each at a private school. Evidently, the children have continued to be schooled privately since then. Early in the decision process, a Child Support Agency officer recorded a file note of a conversation with Mrs Murphy’s representative, her father, [Mr A].[2] The note relevantly reads: Discussed income and schooling briefly. Both children have always been in private education and there is mutual intent. [2] File note of 28 April 2015, page 41 of the papers. Mrs Murphy herself attached a typewritten page[3] to the standard form in which she provided the Registrar with a response to Mr Murphy’s application. That page included the following: He insisted that the children go to private schools. [3] Page 57 of the papers. Mr Murphy conceded during the original decision process that he had not discussed with Mrs Murphy the choice of secondary schooling for the children. The senior case officer, considering those circumstances, declined to find that Mr Murphy and Mrs Murphy had expected private secondary education for the children and held that the related ground for departure did not exist. I take a different view. In my view, children who attend a private primary school are, in general, much more likely than not to go on to attend a private secondary school. At the time at which enrolment at secondary schools was taking place, the children were effectively in the sole care of Mr Murphy. Aware that Mr Murphy “insisted” that the children be privately educated, in the absence of any discussion with him on the topic, Mrs Murphy could only reasonably have expected that [Child 2] and [Child 1] would be going to a private secondary school. I find that the ground for departure set out in subparagraph 117(b)(i) exists.": Murphy and Murphy (Child support) [2016] AATA 2001, [12]-[22].
> See case - mother made to contribute in circumstances she received a large payout in property settlement: "On 5 September 2023 Mr Rendell lodged an application with Child Support seeking a change of assessment. Although several grounds were cited, ultimately the concern is Reason 3 in relation to the children’s private schooling costs. Prior to Mr Rendell’s application he was covering the tuition fees and compulsory school levies and this remains the case. ... The legislative framework 12. Section 98B enables a liable parent, or carer entitled to child support, who is of the view that special circumstances exist, to ask Child Support to make a determination departing from the provisions of the Act governing the administrative assessment of child support (a departure determination, also known as a change of assessment decision). 13. Section 98C empowers the Registrar to make a departure determination if satisfied that: (1) one or more grounds for departure referred to in subsection 117(2) exist; (2) it would be just and equitable as regards the child, the liable parent and the carer entitled to child support; and (3) it would be otherwise proper. Are there grounds for departure? 14. As indicated, Mr Rendell applied for a change of assessment on 5 September 2023 seeking a departure determination in part under Reason 3, which concerns the children’s private education costs. Subparagraph 117(2)(b)(ii) – Reason 3 15. Subparagraph 117(2)(b)(ii) provides a ground for departure where, in the special circumstances of a case, the costs of maintaining a child are significantly affected because the child is being educated in the manner that was expected by their parents. 16. The term ‘special circumstances’ is not defined in the Act. In Gyselman v Gyselman (1992) FLC 92-279 the Full Family Court indicated that, for there to be special circumstances, the facts of the case must establish something which is special or out of the ordinary. 17. It is well established that child support payable under a Part 5 assessment does not cover the compulsory costs of private schooling that are over and above those ordinarily incurred in the public education system. As children’s textbooks and associated costs are typically also incurred in public schooling, they are ordinarily excluded. However, tuition fees and compulsory school levies represent charges not incurred in public schooling. 18. A joint expectation at some point should not be understood as akin to entering a contract from which there is no exit clause. Apart from the fact the relevant provision is not couched in contractual terms, or in terms of an agreement between parents, it is clear parents can have the same expectation without ever having discussed the subject of the expectation. Further, it has never been suggested that a parent cannot change a prior expectation about private education where their financial resources are not adequate. In this regard, Riethmuller J noted in Dobbins & Devlin & Anor [2014] FCCA 1274 (at paragraph 43): The simplistic argument of the mother that it is not open to a parent to change their expectations with respect to their child’s education simply due to financial reasons cannot be correct. Throughout life people change their expectations both with respect to their own lives and their children as a result of the resources available to them. 19. I think this passage has to be understood with circumspection. Where a parent has expected their child to be privately educated, there would need to be clear evidence both that their financial position has materially altered and that this was the cause of their changed view. 20. In my view an expectation that a child will attend private schooling involves a positive or active attitude by a parent that this will occur. It amounts to an anticipation typically associated with active steps to bring this about, or an active acquiescence in the other parent taking the requisite steps. Regarding education, the active steps a parent may make may include seeking out suitable schools, being placed on a waiting list, signing enrolment forms and paying school fees. 21. In the present matter, the available documentation shows the parties signed an enrolment application form on 23 February 2020 for [Child 2]’s kindergarten year at [School 1] in 2021. Documentation provided also shows the parties signed an enrolment application form on 14 April 2020 for [Child 1] to attend Year 7 at [School 2] in 2021. 22. I accept Mr Rendell’s uncontested evidence that [Child 1] attended kindergarten/primary school at [School 1] from 2012 or 2013 following a joint enrolment application and has accordingly been in the private schooling system for around 12 years. I also accept Mr Rendell’s evidence that he and Miss Ashby both attended school presentations prior to deciding that [Child 1] should attend [School 1]. 23. I accept Miss Ashby probably had no particular preference regarding the nature of the children’s education and I consider Mr Rendell was probably the driving force in this regard. That said, Miss Ashby was a signatory to enrolment forms for both children in 2020 in a context where [Child 1] had already been in private schooling for some seven or eight years. I am satisfied in this context that Miss Ashby participated in the process and had a continuing expectation at the time that both children would be privately educated. 24. I am satisfied from school invoices Mr Rendell has provided that [Child 1]’s [School 2] school fees for 2023 and 2024 total $3,818 and $3,993 respectively. [School 1] school invoices reveal the fees for [Child 2] for 2023 and 2024 are $2,180 (with an ‘early bird discount’) and $2,380 respectively. The documentation provided shows Mr Rendell is current with his payments. 25. The combined school fees for 2023 and 2024 are therefore $5,998 and $6,373 respectively. As the fees are significant and are not taken into consideration in the Part 5 assessment, I consider they give rise to special circumstances. Further, as there was a mutual expectation that the children be privately educated, I am satisfied there are grounds for departure under Reason 3. 26. Due to the particular circumstances of this case, I think it is apposite to consider Miss Ashby’s financial resources under just and equitable considerations rather than attempt to first determine objectively whether she altered those expectations according to her changed financial position. ... 43. Ultimately, I consider it is just and equitable for Miss Ashby to pay an equal share of the children’s private schooling costs. In summary, although Mr Rendell does have a capacity to meet the costs himself, Miss Ashby did secure a significant financial resource from the parties’ property settlement in October 2021 (around $1,243,000 after capital gains tax). 44. Following the reasonable purchase of a home in Tasmania (for around $320,000), Miss Ashby retained ample funds to contribute to the children’s education. Although Miss Ashby’s savings have significantly reduced following the purchase of a rental property, that choice should be considered for child support purposes in the context of a parent’s obligations explained in section 3. In particular, section 3 anticipates that a parent will arrange their financial resources in a way that enables them to address the primary obligation to meet their children’s costs. 45. Mr Rendell indicated that, were a departure determination made, he would accept as appropriate a start date coinciding with his change of assessment application (5 September 2023). As to an end date, Mr Rendell does not have any pressing issue with that adopted by the objections officer save for the fact a further change of assessment application would be required as that date approached if [Child 2] continues to be privately schooled. 46. I consider it fair to commence a departure determination from when Mr Rendell lodged his application as Miss Ashby was entitled to rely on the prior assessment in place. As [Child 1] will turn 18 in March 2026 and will have finished Year 12 at the end of 2026, he will cease to be an eligible child in either March 2026 or at the close of the 2026 school year if either parent applies for an extension of the child support assessment. Either way, I think it is appropriate at this point to set an end date according to when [Child 1] ceases to be an eligible child as this gives the parties some stability in the meantime. 47. I am satisfied the considerations outlined balance the children’s costs both with the parties’ respective duties under the child support law as parents and with their capacities to contribute to those costs in a way that is just and equitable.": Ashby and Rendell (Child support) [2024] ARTA 211, [2], [12]-[26], [43]-[47].
> "21. The change of assessment application the subject of the Tribunal’s consideration is an application by Ms Skyes dated 9 May 2022 seeking a departure determination on the basis that there are extra costs of caring for, educating or training the children in the way both parties intended. 22. Subparagraph 117(2)(b)(ii) of the Act – commonly referred to as ‘Reason 3’ – provides as a ground for departure: (b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected: (ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents; … 23. The child support assessment in its usual form is intended to cover the costs of raising children which are common to all parents, for example, public school fees, camps, uniforms and extracurricular activities. It is not intended to cover additional expenses such as private school fees, which are not common. Where parents have a mutual expectation that a child is to be privately educated, an adjustment to the child support assessment may be required: Mee v Ferguson (1986) FLC 91–716 (Mee v Ferguson); Wild v Ballard (1997) FLC 92 771 (Wild v Ballard). 24. The principles that emerged from the consideration of the Full Court of the Family Court in Mee v Ferguson can be summarised as follows: (a) where there has been a mutual expectation of the parents that the child attend a private school, that parent is ‘liable to contribute to the fees involved so long and to the extent that he or she has a reasonable financial capacity to continue to do so’; and (b) where there has been no such expectation, a parent is not liable to contribute to those expenses unless there are reasons relating to the child’s welfare which dictate attendance at the school rather than a non-private school. Then the parent is required to contribute to the extent that he or she has a reasonable financial capacity to do so. 25. Although that case was decided prior to the Act, the reasoning has been applied to child support cases: Lightfoot v Hampson (1996) FLC 92 663 and Wild v Ballard. 26. What falls for consideration is: (1) whether there was an expectation by the parents that the child or children would attend private schooling; and (2) If so, the quantum of the school fees and whether the parents have the financial capacity to pay the associated fees. Mr Skyes stated that he unknowingly signed a contract for [School 1] for [Child 2] that he thought was just for a scholarship and that he never otherwise agreed for [Child 2] to attend private school. As discussed with Mr Skyes at hearing, and as noted by the Child Support objections officer in their decision, the issue of whether there was an expectation by the parents that [Child 2] would attend private schooling, and in particular [School 1], has previously been determined in previous change of assessment decisions including on review of a previous change of assessment application by this Tribunal (differently constituted) in a decision dated 26 October 2021. Mr Skyes had review rights in relation to that decision. Mr Skyes told the Tribunal that he sought advice in relation to those rights and based on that advice did not pursue a review of that decision. However, he did not realise the decision would continue to impact future applications. As discussed with Mr Skyes, it is not the role of the Tribunal to provide advice and it is a matter for Mr Skyes whether he now pursues review of the 26 October 2021 decision, noting that any such application to the court now would require an extension of time within which to lodge an apply. Notably in the 26 October 2021 decision, the Tribunal found that: … by signing the enrolment contract he (Mr Skyes) acknowledged that the school would enrol [Child 2] and that [Child 2] would thereafter be educated at the school. He acknowledged that the school would charge fees for [Child 2]’s attendance at the school, that it would determine from time to time. No reference whatsoever is made within the enrolment contract to a scholarship. Mr Skyes’ evidence to the Tribunal, to the effect that by signing the enrolment contract he was merely assisting in the process of providing [Child 2] an opportunity to be awarded a scholarship by the school and thereby enable Ms Skyes to realise her expectation of having [Child 2] in the school is simply implausible. The Tribunal continued on to conclude that a ground for departure based upon Reason 3 existed. On one view, Mr Skyes had a right to seek review of the 26 October 2021 decision and, having failed to do so, failing a review decision by the court to the contrary, the conclusion by the Tribunal as previously constituted that there was an expectation by Ms Skyes and Mr Skyes that [Child 2] would attend private schooling at [School 1] is conclusive. However, the Federal Magistrates Court decision of Gelber & Child Support Registrar & Anor (SSAT Appeal) [2012] FMCAfam 45 and the Federal Circuit Court of Australia decision of Tan & Tan (SSAT Appeal) and Tan v Child Support Registrar & Anor [2013] FCCA 123 concluded that findings of fact by a Tribunal making an administrative determination, as opposed to a court making a judicial determination, are not conclusive. The Tribunal therefore considered afresh whether there was an expectation by the Mr Skyes and Ms Skyes that [Child 2] would attend private schooling, and in particular [School 1]. 30. Mr Skyes confirmed at hearing that he agreed that he signed an enrolment contract for [Child 2] at [School 1], however he did not understand that he, in signing that document, agreed to or expected [Child 2] to be educated at that school; rather, he was simply supporting [Child 2] applying for a scholarship at the school. 31. Ms Skyes’ position remained that Mr Skyes signed and entered into the enrolment contract with [School 1] in respect of [Child 2] and that it was his expectation that she would be privately educated at that school. 32. In Oliver v Oliver [2021] FCCA 965, the father signed the enrolment form but did not make a commitment to pay school fees. On appeal the Federal Circuit of Australia agreed with the Tribunal’s approach that the father’s agreement to pay school fees was not a requirement for the ground to be established and that rather what is required is that: (1) there are special circumstances in the case; (2) the children are being educated in the manner expected by the parties; and (3) the costs of maintaining the children are significantly affected as a consequence of that. 33. The legislation does not require an agreement to a child attending private schooling, or an agreement to paying the costs of that schooling. It is not in dispute that Mr Skyes and Ms Skyes signed an enrolment contract for [Child 2]’s attendance at [School 1]. In signing the enrolment contract, even if for the purpose of supporting a scholarship application, demonstrates an expectation of attendance at that school. In the Tribunal’s view, it is illogical to conclude that a parent did not expect a child’s education to occur at a school for which they have signed an enrolment contract, whether or not there was also an expectation of or application for a scholarship towards the costs of that education. The Tribunal therefore concludes that [Child 2] in attending [School 1] is ‘being educated in the manner expected by the parties’. The Tribunal therefore then next considered the quantum of the school fees from 30 June 2022. 35. The evidence before Child Support in relation to [School 1] 2022 Fees (Exhibit 1, page 266) for Semester 2 for [Child 2] was as follows: Tuition Fee $ 5,300.50 Resource Levy $ 1,035.00 Mobile Device Levy $ 275.00 Sub-total $ 6,610.50 Less Fee Concession $ 2,650.00 Less [specified] Scholarship $ 2,595.00 Total $ 1,365.50 Ms Skyes provided the Tribunal with an [School 1] 2023 Fee Estimate (Exhibit B, page 21) showing that fees were estimated at $5,147 calculated as follows: Tuition Fee $11,582.00 Resource Levy $ 2,152.00 Mobile Device Levy $ 575.00 Camp Charge $ 2,100.00 P&F Subs $ 30.00 Sub-total $16,439.00 Less Fee Concession $ 5,791.00 Less [specified] Scholarship $ 5,501.00 Total $ 5,147.00 37. $1,365.50 for the 6 months from 30 June 2022 and $5,147 for the 12 months of 2023 are of a level that the costs of maintaining [Child 2] are significantly affected. The Tribunal is satisfied that the costs of [Child 2] attending [School 1] are greater than attending a government education facility and, in the context of the income of the parents (which will be explored in detail later in these Reasons), are expenses that are out of the ordinary. The Tribunal is satisfied that in the special circumstances of the case, the costs of educating [Child 2] in accordance with the mutual expectation of the parents are significantly affected because of private school fees at [School 1]. As a result, the Tribunal concludes that a ground for departure under subparagraph 117(2)(b)(ii) of the Act exists as regards [Child 2]. Consideration of the parents’ capacity to contribute to these costs and what is just and equitable in the circumstances will be considered later in these Reasons.": Skyes and Skyes (Child support) [2023] AATA 2148, [21]-[37].
> "24. The evidence before the Tribunal shows that Mr Donelan’ liability for child support is decreased on account of an amount representative of 12.32% contribution towards private school fees by Ms Rodgers. Ms Rodgers disagrees with the annual decrease attributed as her contributions towards school fees (Reason 3). Mr Donelan also disagrees and considers the contribution towards private school fees based on their respective gross income is unfair and that Ms Rodgers’ earning capacity should be regarded in lieu of actual earnings and, further stated that he has made financial contributions to the children’s benefit since separation (Reason 3 and Reason 5). 25. Although there are a few grounds put forward as reason for departing from the administrative formula (namely, Reasons 3 and 5), the Tribunal is only required to establish one ground for the application to change an assessment to be considered. Accordingly, for this application, the Tribunal has considered the legislative grounds corresponding to subparagraph 117(2)(b)(ii) of the Assessment Act, commonly referred to by Child Support as Reason 3: (b) that in the special circumstances of the case the costs of maintaining the child are significantly affected: … (ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents. 26. Put simply, a Reason 3 departure ground is established if, in the special circumstances of the case, the costs of maintaining the children are significantly affected because they are being educated in the manner that was expected by the parents. 27. In this matter it is common ground that the children would be educated privately at [School 1]; however, Ms Rodgers contends the arrangement to educate the children in that manner was qualified by Mr Donelan solely meeting the tuition fees. Although Ms Rodgers raised the issue that Mr Donelan can afford to pay the costs associated with educating the children privately, that in itself, is not a reason for imposing the full liability of school fees to one parent. It is relevant to note the principle that emerged from the case of Mee v Ferguson[1] where the Full Court of the Family Court found that where a parent agreed to the child attending a private school, that parent is liable to contribute to the fees so long and to the extent that he or she has a reasonable financial capacity to do so. Therefore, the question whether, or to what extent, the parents may be able to contribute towards tuition fees is relevant to a consideration as to whether it is just and equitable to make a departure. This issue is discussed later in these Reasons. [1] (1986) FLC 91-716 28. At this juncture, what is important in establishing whether there is a ground to depart under Reason 3 is whether it was expected by the parents the children would be educated privately. Over time a person may change their expectations for their own lives and their children as a result of the resources available to them. However, for present purposes, the Tribunal must determine whether their respective expectation of private education had changed at the time of the application. This is a question of fact, and turns on the evidence. 29. The evidence in this matter reveals a [School 1] parental agreement signed by both parents on 26 February 2019 prior to their separation. At the hearing Ms Rodgers spoke of the mutual intention for their children to attend [School 1] from preparatory entry, being the school Mr Donelan was educated at, and valuing their continued enrolment and involvement in the same school. Ms Rodgers stated that she would love it for the children to continue at [School 1] until their youngest ([Child 3]) finishes senior school but stated that if she has to contribute towards school fees, it would not be possible going forward. Mr Donelan agreed with Ms Rodgers’ statements concerning their mutual intention and the value in their children being educated at [School 1] and further stated that a mutual responsibility for school fees between them would ensure focus on their respective financial circumstances that would ultimately benefit the children. 30. Putting to one side the capacity to meet tuition fees, the Tribunal is satisfied that the actions of both parents are consistent with the conclusion that the children’s attendance at [School 1] is in the manner of education which was expected by the parents both prior to and after separation and that this expectation continues, and so finds. 31. Documents in evidence establish that the tuition fees and levies for the children totalled about $34,120 for the 2021 school year, $38,042 for the 2022 school year and $45,364 for the 2023 school year. Those figures were not disputed by either parent. Mr Donelan has paid in full the 2021 and 2022 fees directly to [School 1] and from March 2023, Mr Donelan has entered into an agreement to pay monthly instalments of $500 and has paid approximately $5,000 of the 2023 school fees as at the date of the hearing. Instalment payments to the school for 2023 is evidenced by the bank statements in folios B31 to B40. 32. At the hearing, Mr Donelan stated he would not be paying any travel (bus) fees and any travel-related expense charged by the school ought to be paid by Ms Rodgers. 33. Ms Rodgers informed the Tribunal that she recently received an invoice from [School 1] dated June 2023 for payment of about $20,000 which she believes to be half of the 2023 school fees that are outstanding after hearing Mr Donelan’ evidence that he has only paid about $5,000 to date. Ms Rodgers said she is awaiting further information from the school’s administration in regards to that June invoice; however, she suspected it to have been issued to her following Mr Donelan’ direction that the school issue an invoice for half of the remaining 2023 school fees to her. Ms Rodgers said the June 2023 invoice is the first invoice the school has ever issued to her directly and she was surprised by it and is unable to pay it. 34. In response to Mr Donelan’ statement regarding school bus fees, Ms Rodgers stated that the school travel costs are her responsibility and she would address that issue directly with the school. 35. The Tribunal accepts Ms Rodgers’ evidence that she did not make any commitment to Mr Donelan to contribute towards the school tuition fees that, however, is not a requirement for this ground of departure. As stated above, what is required is firstly, that there are special circumstances in this case, secondly, that the children are being educated in the manner expected by their parents and, lastly, that the costs of maintaining the children are significantly affected as a consequence of that. By virtue of the fact that the children are being educated at [School 1], where the combined fees for their education is around $38,000 for 2022 and $46,500 for 2023, the Tribunal is satisfied that there are special circumstances in this case. Further, as already determined the Tribunal is satisfied that both parents expected the children to be educated at [School 1] and, it is clear that as a consequence of their being educated at that school, the costs of maintaining the children are significantly affected. Therefore, the Tribunal finds the ground for departure set out in subparagraph 117(2)(b)(ii) of the Assessment Act has been made out. 36. Subparagraph 98C(1)(b)(i) of the Assessment Act is satisfied if “one, or more than one” of the grounds for departure are established. Having found one ground for departure established, it is not necessary to determine whether any of the other grounds relied upon by the parties have been met. As noted above, the issues raised by the parties in respect of the other grounds will be fully considered when determining whether it would be just and equitable to make a departure determination. ... 53. In considering the financial circumstances for both parents, the Tribunal is satisfied that it is just and equitable to apportion the cost of private school fees between the parents according to their respective capacity based on the average adjusted taxable income and their declared non-discretionary expenses. ": Rodgers and Donelan (Child support) [2023] AATA 2957, [24]-[36], [53].
> "The Act provides as a ground for departure (subparagraph 117(2)(b)(ii)): (b) that, in the special circumstances of the case, the costs of maintaining the child are significantly affected: … (ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents; … The words “in the special circumstances of the case” are not defined in the legislation. Whilst it is not possible to define with precision the meaning of that term, it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. In Gyselman and Gyselman (1992) FLC 92-279, it was held that “special circumstances” were “facts peculiar to the particular case which set it apart from other cases”. The tribunal will consider whether the private school fees give rise to special circumstances having regard to the manner of education expected by the parents. At the time of separation [Child 2] was enrolled in [the School], a private catholic secondary school. His enrolment application, which was signed by both parents in June 2017, provided for him to commence his secondary schooling in Year 7 in 2019. [Child 2] commenced in Year 7 in 2019 and is now undertaking Year 8 at the college. Mr Gagliardi submitted that he did not agree to contribute to the cost of [Child 2]’s education at that school as there were other schools providing similar education that were less expensive. He stated that it has been the choice of Mrs Gagliardi alone to send [Child 2] to that particular school, even though he had also signed the enrolment application. In order for Mrs Gagliardi’s application for a departure from the administrative assessment of child support to proceed, the threshold question for the tribunal is whether [Child 2] is being educated in the manner that was expected by the parents. The child support legislation does not expressly enquire into parents’ desire or preference, or even, expressly, intention. The relevant departure ground is established if, in the special circumstances of the case, the costs of maintaining the child or children are significantly affected because they are being educated in the manner that was expected by the parents: that is, what did the parents expect? The question whether, or to what extent, the parents may be able to contribute towards those costs is relevant to a consideration as to whether it is just and equitable to make a departure. This issue is discussed later in these Reasons. [Child 2] was enrolled in [the School] prior to the parents’ separation in October of 2017. The tribunal notes that correspondence from Mr Gagliardi’s solicitors indicated that the parents had been separated under one roof for nine years prior to that time. It is not necessary to determine when the parents separated but, rather, whether they expected to be educated in the manner in which he is now being educated. [The School] is a catholic secondary school. Mr Gagliardi submitted that there were cheaper catholic secondary schools that he would not object to [Child 2] attending. Mrs Gagliardi noted, and Mr Gagliardi accepted, that their daughters were also educated at private, catholic secondary schools, although Mr Gagliardi submitted that the daughter’s school was cheaper. The tribunal finds that, by signing the enrolment form for [the School], the parents each expected that [Child 2] would be educated in a private, catholic secondary school. Mr Gagliardi submitted that he withdrew his support for [Child 2] to be educated at [the School] when he became aware that the parents were to separate. It would, he submitted, now be unaffordable for [Child 2] to be educated at that school. Having regard to the available evidence, the tribunal finds that, whilst Mr Gagliardi may be dissatisfied with the notion of ongoing contribution to [Child 2]’s school fees for his attendance at a private catholic secondary school, that is nonetheless the manner of education that each of the parents “expected” for [Child 2]. Mrs Gagliardi produced the CSA documents which established that the amount of the compulsory tuition fees and levies for [Child 2] at [the School] in 2019 and 2020 were about $12,000 per annum. The factual correctness of the calculation of the compulsory school fees and levies for [Child 2], as set out in the objection decision, was not disputed by either parent. The tribunal accepts that tuition fees of that magnitude would fall into the category of costs which parents would not have to expend in the education of a child in the public system. The tribunal is satisfied that the costs of educating [Child 2] are of such a magnitude as to significantly affect the costs of maintaining him, and that special circumstances exist as those fees are not taken into account in the administrative assessment. The tribunal is therefore satisfied that the cost of [Child 2]’s education provides a ground to depart from the administrative assessment.": Gagliardi and Gagliardi (Child support) [2020] AATA 4391, [9]-[15].
> Cowie and Brelsford (Child support) [2019] AATA 258.
> Salter and Salter (Child support) [2018] AATA 1725.
> Bestall and Thorn (Child support) [2023] AATA 278.
> ** Ashely and Christy (Child support) [2018] AATA 4590: "With respect to the later Family Dispute Resolution document dated 19 September 2014, [Mr A] submitted that the intention of that document was to qualify the parents’ earlier agreement regarding [Child 1’s] education, specifically recording the parents mutual intention that [Child 1] should attend [Primary School 1] in [Town 2] for years 7 and 8, and thereafter, attend either [School 2], [School 3], or the school identified in the Family Dispute Resolution document by the acronym “[School 4] (boarding school)”. ... .In his submissions on behalf of Mr Ashely, [Mr A] acknowledged Mr Ashely’s acceptance of liability for half the cost of [Child 1’s] tuition fees at [Primary School 1], [Town 2] for term 2, 2016 to term 2, 2017 inclusive. According to the fees schedule provided by Mr Ashely (see Exhibit A, pages A51 and A52), the relevant tuition and other compulsory fees for that period amounted to $2,037, and Mr Ashely’s half share of those costs would have been $1,018.50. 139. However, as [Primary School 1] is a private primary school, it is open for the Tribunal to find Mr Ashely’s expectation was that [Child 1] receive a private school education from primary school term 2, 2016 onward. The Tribunal so finds. ... 148.Adding Mr Ashely’s contribution to [Child 1’s] tuition and boarding fees at [School 1], assessed at $18,462 on the basis of the equivalent fees charged by [School 2] as set out above, to his contribution to [Child 1’s] fees at [School 2] from term 3, 2017 to term 4, 2018, and adjusting for the fee contributions made by Mr Ashely in October and November 2017 of $3,718.75, ($18,462 + $17,263.50 - $3,718.75 = $32,006.75) a total adjusted contribution of $32,007 (rounded up) results. 149.The Tribunal therefore finds that Mr Ashely’s contribution to [Child 1’s] private school tuition fees at [School 1] for term 2 in 2016 to term 2 in 2017, plus his adjusted contribution to [Child 1’s] tuition and boarding fees at [School 2] for term 3 in 2017 to term 4 in 2018 is $32,007, and his contribution to [Child 1’s] special needs [specialist] costs is $2,962, a combined total of $34,969. ... 151.The Tribunal is satisfied both parents have significant incomes, financial resources and property available to them and the capacity to raise funds. In Mr Ashely’s case, the Tribunal is satisfied that varying his adjusted taxable income from that which is used in the administrative assessment to $95,000 and determining his liability to contribute to half of [Child 1’s] [specialist] special needs and private education costs as set out above will not cause him or his family undue financial hardship, nor will Ms Christy’s financial circumstances be adversely affected so far as her entitlement to pensions and other benefits is concerned, and generally. 152.The Tribunal intends varying the adjusted taxable income of Mr Ashely to $95,000 for the period 1 July 2017 to 31 October 2019. The Tribunal also intends increasing Mr Ashely’s annual rate of child support by $21,424 for the period 1 July 2017 to 30 June 2018 in consideration of his contributions to [Child 1’s] [specialist] costs ($2,962) and his [School 1] private school tuition and boarding fees for term 2 in 2016 to term 2, 2017 ($18,462), and for the period 1 July 2018 to 30 June 2019, by $13,545 in consideration of his contribution to [Child 1’s] [School 2] tuition and boarding fees for term 3, 2017 to term 4, 2018, in the expectation that the parents will be able to reach agreement regarding the payment of [Child 1’s] private education costs for the balance of his secondary education, absent which, a fresh application for a change of assessment can be made to the Department."
> Perkins and Perkins (Child support) [2022] AATA 3066: "Before the Tribunal can consider whether or not Reason 3 is established it must form a view that the child is being educated in the manner expected by the parents. The established case law says that this relates to the type of education (e.g. private or public) that was expected, not the choice of individual school [Wild and Ballard (1997) FLC 92-771]. In this case, the parents did agree to the child’s attendance at a Catholic School. They have both accepted the offer of a place at [College 1] and committed to being jointly liable for the fees. An invoice dated 22 February 2022 show the total fees for all components of the education, including resource and sporting fees, to be $4,935 in 2022. This expense would significantly add to the cost of raising the child if it were not already being shared equally by the parents.Ms Perkins argues that the child support payable by Mr Perkins should be increased to take account of all of the other expenses of the child’s education, which have been borne by her. The child support assessment in its usual form is intended to cover all costs that are common to raising children, regardless of the manner of their education. This includes things like school uniforms, school transport, electronic devices and computers, excursions, sport, and a degree of extra-curricular activity. While Ms Perkins has raised issues in relation to these ancillary costs that she is incurring, under the law it is only private school tuition fees which fall outside those usual costs and which can be considered under Reason 3. None of the other expenses raised by Ms Perkins such as laptops and uniforms would be for consideration under Reason 3. As the only costs which can be considered are already shared between the parents, the Tribunal cannot find that this ground to change the child support assessment is established ... Mr Perkins has no child support outstanding. The Tribunal is satisfied that he has a capacity to pay child support at least commensurate with the current administrative assessment, plus half the private school fees. The fact that he is making no payments in respect of rent or mortgage, and is able to continue to draw his usual wage from [Company 1] regardless of how much work he does, no doubt ensures this capacity.".
> ** special needs, court made remarks expecting husband to pay for private school at some point: Gingham & Gingham [2007] FMCAFam 254. [44]-[67]: "The applicant mother asserted that the child did not fit into the general public schooling system due to his special needs. She said that he struggled every day and the government schooling system was simply unable to cater for him. The mother asserted that a private school such as [B] School catered for a large number of boys like her son and also had a centre for managing academic potentially gifted education, which suited [X]’s special needs. The applicant said that [B] School was the only all boys school within a suitable demographic location that provides all the support facilities that [X] needs. The applicant further asserts that by late 2002 it was clearly evident that the government schooling system was unable to cope with [X]’s special needs. It is for that reason that the applicant seeks to compel the respondent father to pay for private education at a school such as [B] School. On the other hand, the respondent father says that no medical practitioner has specifically said why [X] needs to attend a private boys school and he does not admit that [B] School provides a curriculum which is able to accommodate [X]’s special needs nor that it is the only school that can do so. I am prepared, on the basis of the admissible evidence before the court to conclude that [X] does have special needs. However, that is not all that has to be proved to justify the making of the departure order. The applicant must demonstrate “special circumstances”. I am prepared to accept that special circumstances are demonstrated in the present case notwithstanding the vague meaning that has been accorded that term. Here the court is confronted with a case where a child has a diagnosed medical condition that requires additional help, a father who is in receipt of a large income and a mother who is bankrupt. In my view, each of those factors taken either individually or together constitute special circumstances sufficient to satisfy the primary or threshold consideration in each of the categories mentioned in s.117(2) of the CSA Act. It must also be proved that those special needs significantly affect the cost of maintaining the child. That can only be proved in the present case if it is accepted that [X]’s needs can only be met in a private school as opposed to in the state school system. It is in that respect that the evidence is unfortunately very lacking. The applicant has convinced herself that only a private school such as [B] School can offer [X] the education he needs and which accommodates his special needs. There is, however, no evidence to support that belief however well intentioned and honestly held it may be. In particular there is no evidence from [B] School itself which supports a finding that that school as opposed to any other, provides facilities which properly cater for [X]’s special needs, being his learning difficulties and behavioural difficulties. The applicant has obtained information which suggests that the [B] School has a program for gifted students as well as for students with attention deficit disorder. There is no evidence that [X] fulfils the criteria of being a gifted student. Nor is there any evidence that the program offered at [B] School (whatever that program may be, because it was not put into evidence) deals with [X]’s special needs. There is also no evidence from the teaching staff from [P] School that [X] cannot be properly educated at that school, nor that the school cannot cope with his special needs. It has invested additional resources into the education of [X] and has provided him with additional assistance. His most recent report reflects an improvement in his performance in his schooling. The absence of evidence, as opposed to assertion from the applicant, that the present school cannot cope with [X]’s needs, and that a private school can, compels the conclusion that a ground for departure is not established. Further there was no evidence that a private school education, as opposed to a state school education, was required to meet the child’s special needs. Indeed, at [P] School, where the child is currently attending, he has been afforded additional help in the form of a teacher’s aide and learning support teacher. There is no evidence that any additional facilities would be made available at a private school. I therefore conclude that the ground referred to in s.117(2)(b)(i)(B) is not made out on the evidence produced to the court. So far as s.117(2)(b)(ii) is concerned, evidence was given by each of the applicant and the respondent about their intentions regarding the education of [X]. Further, evidence was given by Ms D, in support of the applicant. In F & S [2003] FMCAfam Bryant CFM (as her Honour then was) considered whether a father should be ordered to pay private school costs. Her Honour observed that the question of the payment of school fees was dealt with by the Full Court of the Family Court in Mee & Ferguson (1986) FLC 91-716. Her Honour said, at para [15] that the principles that emerge from that case in relation to school fees can be summarised as follows: a) Where the non-custodian has agreed to the child attending a private school, that person is liable to contribute to the fees so long and to the extent that he or she has a reasonable financial capacity to continue to do so; b) Where the non-custodian has not agreed to the child attending such a school, he or she is not liable to contribute to those expenses unless there are reasons relating to the child’s welfare which dictated tendance at the school rather than a non-private school. Then the non-custodian is required to contribute to the extent that he or she has a reasonable financial capacity to do so; and c) The mere fact that a non-custodian can afford the fees or is a wealthy person is not in itself a reason for imposing that liability. Her Honour observed that although Mee & Ferguson was decided prior to the introduction of the CSA Act the reasoning has been applied to Child Support cases. Her Honour’s summary of the principles is no more than a reiteration of the judgment of the court at p.75,201. In the present case, it is asserted on behalf of the applicant that an agreement was made to the child [X] attending a private school. In that regard the applicant relies on a conversation held on Christmas Day 1998 at which the respondent allegedly stated to persons present including Ms D that [X] would be attending [B] School. Ms D gave evidence before me, which I accept. She swore an affidavit in which she stated that the respondent instructed his wife to enrol their son at the school to ensure that he would achieve a place. Although the conversation took place in a social context I am satisfied that it occurred as the applicant and Ms D contend. The respondent accepted in his evidence that he would have attended the social gathering at which the alleged conversation took place. He also recalls there being a conversation on schooling (T106). Prior to the social gathering the applicant and respondent attended a presentation by a number of private schools at the Brisbane Entertainment Centre. This supports a conclusion that the applicant and the respondent have turned their minds to the education of their son and at least on a preliminary basis had formed the intention that he be educated at a private school. At T106 the respondent father says that he does not recall an agreement about [B] School but does remember discussing that he would like for [X] to go to a private school “ultimately” or “potentially”. He says there was certainly no time line as part of the discussions. The respondent accepted at T106 that [X] would eventually go to a private school. This is consistent with the parent’s expectations, and indeed with the respondent father’s own background. Though he (and the applicant mother) were educated at secondary level at a government school, the respondent father has completed significant tertiary education at a private institution. Given his high levels of income, which I will shortly discuss, I have little difficulty in concluding that the respondent father expected that his son would eventually attend a private school. Unfortunately there is little particularity in the applicant’s evidence about when the child was to commence schooling at [B] School. The evidence in this regard was very non specific. There was no evidence of an agreement, for example, that the child would have all of his education at a private school, or that he would start private school at a certain age. The evidence concerning the discussion in 1998 was equally susceptible to the interpretation that the child would attend a private school for all of his education, both primary and secondary, as it was that he would attend a private school for his high school education. However, s.117(2)(b)(ii) of the CSA Act does not require that there be an agreement between the parents but rather evidence of the parent’s expectations that the child be privately educated. I am satisfied that in this case both parents had the expectation that their son [X] would be attending a private school. However, I can not accept that such expectation extended to [X] attending a private school for his primary education. Therefore I am not satisfied that the ground referred to in s.117(2)(b)(ii) of the CSA Act is made out in this case. I therefore conclude that no ground for departure mentioned in s.117(2) exists in the present case, at this point in time. The mother’s application must, therefore, be dismissed. I should, however, deal with other matters argued by the parties in case a different review is taken of my conclusions elsewhere. If there was evidence that the child could only be satisfactorily accommodated in private school education then I would make a departure order in the present case. I am required, before doing so, to consider whether such an order would be just and equitable. Section 117(4) of the CSA Act requires me to have regard to a number of factors in making that determination. The first of those factors is the nature of the duty of a parent to maintain a child, as stated in s.3 of the CSA Act. Aspects of the statutory scheme where considered by the High Court in Luton v Lessels (2001) FLC 98-015. In that case, Gaudron and Hayne JJ said (at page 95,659): “The Assessments Act records that “parents of a child have the primary duty to maintain the child”. This duty is said, by the Assessment Act, a) to be not of lower priority than the duty of the parent to maintain any other child or another person; b) to have priority over all commitments of the parent other than commitments necessary to enable the parent to support himself or herself and any other child or another person the parent has a duty to maintain; c) to be not affected by the duty of any other person to maintain the child or any entitlement the child or another person may have to an income tested pension, allowance or benefit… The principle object of the Assessment Act is said to be “to ensure that children receive a proper level of financial support from their parents”.” In the same case Gleeson J said at page 95,653: “It may be observed that, although the legislation is enacted in furtherance of a clearly defined public policy, it creates a distinctly person liability. The natural and moral obligation of the parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt, calculated in accordance with the Assessment Act, owing by a parent to a carer of the child.” Thus, if [X]’s needs justified the provision of a private school education, the nature of his father’s duty to maintain him mandates the provision of such education provided the father could afford to do so. Similarly, if the needs of the child require the provision of such education, again it should be provided. Much effort was spent in the present case by both parties in exploring the earning capacity and financial resources of the other. The applicant is a bankrupt, and is not presently working. As a result of property settlement proceedings brought in the Family Court of Australia, the applicant received a modest sum of money. Cross examination of the applicant was intending to show that she has greater financial resources than she has disclosed, by reference to her riding a valuable horse, taking that horse in a float, competing in various equestrian events, and presumably feeding and housing the horse. In my view, none of these attacks upon the applicant succeeded. The applicant offered a plausible explanation as to the ownership of the horse (her sister), the provision of the horse float (by Mr and Mrs A), and the circumstances by which she was able to travel to and from equestrian events such as that in Victoria. It was put to the applicant that the arrangements with her sister, who was said to be the owner of the horse, were a sham. However, the respondent led no evidence to establish that proposition. Having not gained any concessions from the applicant in cross examination, and leading no positive evidence to contradict it, leaves me with a clear impression that the applicant’s financial resources are not greater than those than she has disclosed. The applicant herself embarked upon a crusade to uncover evidence of further income and assets which her former husband was thought to have owned. Multiple subpoenae were issued to this end. No doubt some of the applicant’s concerns regarding the financial position of her former husband stemmed from the animosity between the applicant and the respondent’s current partner, Ms K. The applicant is convinced that the respondent and Ms K intermingle their finances and that assets owned by Ms K are paid for using money from the respondent. Again these attacks failed to prove what they set out to. However, I was satisfied, having regard to the applicant’s skilful cross examination of the respondent that the respondent would, if orders were so made, have the financial capacity to meet the cost of private school education for his son, despite his protestations that he is unable to afford to do so. The applicant demonstrated that the respondent’s taxable income in the 2005/2006 financial year was in the order of $277,000.00. She also demonstrated that his financial statement was inaccurate in so far as it claimed that superannuation was deducted on a weekly basis in the amount of $403.00. This amount was in fact paid by the respondent’s employer over and above his income. The amount of superannuation was in fact $348.00 per week, and the respondent accepted the error in this regard (at T57-8). This demonstrates that the respondent would have an additional $15,000.00 – $20,000.00 per annum available to him beyond that asserted in his financial statement. Further, in his financial statement the respondent claims to pay $1,000.00 per week to his solicitors in payment of outstanding legal expenses. However, the outstanding legal expenses would be fully discharged, at this repayment rate, by the present time. It is fair to say that the respondent would have incurred additional legal expenses pertaining to these proceedings but one would still expect that the respondent would have up to $4,000.00 per month available to him following the discharge of his obligation to his solicitors. It is unnecessary to delve any further into the financial affairs of the respondent. By combination of the two amounts just identified I am satisfied that the respondent would have the financial capacity to pay private school education for his son. Two observations should be made. The first is that merely because the respondent is able to afford the fees is not of itself a reason for imposing that liability (see F & S, supra). However, having concluded that the respondent has probably agreed, and certainly expects, his son to undertake private schooling at least at the secondary level, in my view this does not present an obstacle to an order being made in the future that such education be funded by the respondent father. The second observation that should be made is this. It is unfortunate that the respondent has chosen to expend large sums in legal fees, including in this litigation, when those monies could more usefully have been spent on caring for and educating his son. The respondent gave evidence that the property settlement proceedings with the applicant (that lasted five days in the Family Court) have set him back considerably, from a financial perspective, and he wishes to accumulate assets in the future. However the respondent’s obligations as a parent to maintain his child (which in my view includes properly educating that child) must take priority over that ambition. As the High Court made clear in Luton v Lessels, supra, the priority of the child’s proper maintenance is of a higher order than commitments of the respondent other than those necessary to enable him to support himself. If one accepts the respondent’s evidence that he and Ms K do not support each other, but rather keep their finances separate, then the evidence plainly demonstrates that with his spare financial capacity, the respondent could meet the necessary private education expenses for his son. Finally, I would conclude that it would be otherwise proper to make an order that the respondent pay for the private education costs of his son, if evidence sufficient to satisfy s.117(1)(b) was adduced. This is because the respondent would have financial capacity to pay for that education and he and the applicant expect that such education be provided to their son. Although it is a matter for another day (which hopefully will not result in further litigation) I observe that, having concluded that both parents expect that [X] will receive a private education at some stage of his life, and given the father’s financial capacity to provide that education, one would expect that from grade 8 [X] would receive that private education and that the father will pay for it, in addition to his other child support obligations. That is, provided the father’s financial position does not markedly deteriorate, I would expect that the father would pay for all of the child’s private education expenses, over and above his child support assessment, once the child reaches high school. I am of the view that the applicant mother brought these proceedings in good faith and with a view to providing the best possible outcome for her son. Unfortunately, the evidence does not support making the orders that she seeks. In the circumstances the orders I make are as follows: a) That the application filed 24 May 2006 be dismissed."
> Farthing & Robinson [2016] FCCA 2851 - discussion of scholarship exam, and any intent that could be inferred.
> Shaw & Shaw [2010] FMCAFam 1535, [26], [32], [43], [119]-[121]: "With respect to education, there is no dispute factually between these parties that the children of their relationship have, to date, all attended expensive private schools. One of the particularly important and germane issues in this regard, however, harks back to s.4 and the objects, that “children share in changes in the standard of living of both of their parents”, whether or not they are living with both or either of them. ... Annexure ‘A’ to Ms Shaw’s affidavit filed in Court today is an email from X to her father, reading in part: Dad, Mum has just showed me the email you sent her about you not going to be paying my school fees. This is not fair. You have paid for all your children to go to private schools – W, Y, V, and Z – and now you’re saying you’re not going to pay for me. Dad, this is not fair. It goes on to relate a number of other matters before indicating: And you’re probably going to send back an email saying that you have no money. What a load of crap. You just got 200,000 from mum and you gave (omitted) 50,000. She isn’t even part of the family and you could be spending that on my school fees. ... What is also not seriously challenged, and which would appear to be borne out by the material which I have read and considered in these proceedings, is that following the sale of that property and the receipt of funds by each of the parents, that: a) The parties then commenced to reside in rental accommodation at (omitted), paying rental of about $1200 per week; b) all of the children who were then under the age of 18 years continued to attend private schools with school fees in excess of $20,000 and at times $30,000 per year each; and c) Following sale and the distribution of those funds and until the time that the parents separated and certainly by the time they reached property adjustment proceedings before the Federal Magistrates Court in Sydney (in December 2009), Mr Shaw’s funds had been substantially, if not completely, eroded. Again, there does not appear to be any serious challenge on the material before me that this was largely accounted for through meeting fees and expenses which, as is suggested in submissions, the parties cannot now afford and which, it would appear as far back as 2006, if not earlier, they could not afford. ... I hasten to remind both parents that, in fact, the financial contribution that will be made by Mr Shaw on an annual basis is in excess of $15,000. This represents $15,000 of the $22-25,000 of fees for X. If continuing X in such private school education is a matter of such high priority and importance for Ms Shaw then she should contribute to it from her resources. I am satisfied Mr Shaw has no greater capacity to do so that he is presently. Accordingly, I am satisfied that the application under ss.123 to 125 and incorporating s.141 for payment of a lump sum of child support must also fail."
> Slattery & Slattery (No 2) [2007] FamCA 709.
> **Jewish faith, jewish school, importance of orthodox Jewish faith - no real agreement between parties, but court considered it acceptable for child to attend private schooling: "The law The provisions of section 117 of the Child Support (Assessment) Act empower a court to make an order for departure from administrative assessment in special circumstances. In considering a departure application, the court must follow the three steps as described in Gyselman & Gyselman (1992) FLC 92-279. The court must be satisfied that in the special circumstances of the case, one or more of the grounds of departure in section 117(2) exists. If a ground for departure is established, the court must be satisfied that it would be: i) just and equitable as regards the child and parties to make a departure order; and ii) otherwise proper to make a particular order. Under this Division, in order to determine these two matters, the court must consider the objects of the Act, the proper needs of the children and any income or assets of the children, the income earning capacity, property and financial resources of each parents and their commitments necessary to support themselves or other relevant dependents, and finally whether any hardship would be cause to either the child or the parents by making or refusing to make the order. In determining whether it's proper to make an order, the court must consider whether the parent is in receipt of a pension and accordingly to what extent the community should be responsible for meeting the costs of children." The question of payment of school fees was dealt with by the Full Court of the Family Court in Mee v Ferguson (1986) FLC 91-716. The principles that emerged from the case in relation to school fees can be summarised as follows: a) where the non-custodian has agreed to the child attending a private school, that person is liable to contribute to the fees so long and to the extent that he or she has a reasonable financial capacity to continue to do so; b) where the non-custodian has not agreed to the child attending such a school, he or she is not liable to contribute to those expenses unless there are reasons relating to the child's welfare which dictate attendance at the school rather than a non-private school. Then the non-custodian is required to contribute to the extent that he or she has a reasonable financial capacity to do so; and c) the mere fact that a non-custodian can afford the fees or is a wealthy person is not in itself a reason for imposing that liability. Although Mee v Ferguson was decided prior to the introduction of the Child Support (Assessment) Act, the reasoning has been applied to child support cases [see Lightfoot v Hampson (1996) FLC 92 663 and Wild v Ballard (1997) FLC 92 771]. ... Both parties observe the orthodox Jewish faith and they and their extended families keep a Kosher home, observe Jewish religious days and strictly observe the Sabbath. The parties had originally considered another school as a possible school for R, although there is disagreement as to when she would have commenced. B R is a more religious school, celebrates all Jewish religious holidays and R would be mixing with other children whose parents keep a Kosher home. The mother asserts that she would not contemplate R attending a state primary school. The father would prefer R to attend B R but asserts that it cannot be afforded by the parties and that the other primary school offers an acceptable alternative. He concedes that the parties contemplated other schools when they were together but contends that he made no commitment during R's primary school years because he did not consider that it could be afforded. The father contends that the other primary school offers an acceptable alternative. Whilst it is a state school, because it is located in an area in which many Jewish people live, the school is sensitive to cultural issues and has many Jewish students attending and other religious teaching which is not available at the school can be obtained through lessons at the synagogue at weekends. When there was discussion about R originally attending another school, the mother conceded that she was made aware by the school that the father had told them that he could not pay the fees. ... There was no dispute between the parties about R's expenses and no real issue taken about them. As far as the departure application itself was concerned, the focus was on the father's taxable income and the payment of school fees. The fees for R between prep and year 12 at the moment amount to a sum of $7380 per annum for fees in prep and $13,120 per annum in year 12. The total cost with uniforms and books is anticipated in her prep year to be $8019 per annum. One half of that sum is $4009.50 or $77 per week. Even allowing for repayment of legal fees, the father has a present capacity to pay that sum. This is not a case which fits neatly into the principles that emerge from Mee v Ferguson in relation to school fees. It is not a case where the non-custodian has agreed to R attending a private school. In fact, he has not agreed. However, notwithstanding what the Full Court said in Mee v Ferguson as to the first of the principles which was on agreement for the child to attend a particular school, "agreement" is not in fact the word that is used in the Act. What section 117(2)(b)(ii) says is: Because the child is being cared for, educated or trained in the manner that was expected by his or her parents. There can be, in my view, an expectation imputed in this case to the parents that R would have a religious upbringing. That is consistent, in a sense, with the evidence of the father which was that in a perfect world he would like R to continue at B R. His objection is it could not be afforded, and I have found that not to be the case. It could also be said, in my view, that this case falls within the second identified principle in Mee v Ferguson, that there are reasons relating to the child's welfare which dictate attendance at this school rather than at a non-private school. Whilst there is no reason, insofar as R's particular needs or education is concerned, why she could not attend a state school, there is no doubt, on the evidence, that B R provides an appropriate environment for children whose parents wish them to live an orthodox Jewish life. All of the evidence in this case supports that the parties and their extended families wish R to grow up in that environment and that the only real way that that can occur in an educational sense is by her attending B R.I am satisfied for the Reasons that I have indicated that there is a capacity shown by the father on the available financial material put forward by him to meet his share of R's school expenses and for the Reasons that I have expressed, in my view this is an appropriate case in which he should do so. I have taken into account that the fees will increase as R grows up and proceeds through the school. However, the father has available to him property from which he could obtain a better return than he is currently receiving and it is available to him if necessary to alter the manner in which those assets are held to produce a better return. The Act requires that I have regard not only to income but also to earning capacity. If he sold the two flats which are used for investment purposes at the present time for $500,000, after deduction of the mortgage, he would have about $430,000 left. After deduction of capital gains tax, he would have about $365,000. A four per cent return would yield him $14,600 per annum. After tax he would still have close to $8000 per annum and allow his capital to remain intact. Whilst that is not significantly higher than the return he is presently getting, in the context of what he would have to find to contribute to school fees, it is an amount which would enable him to meet his share of the school fees, even in the years in which they will be greater than they are now. I am therefore satisfied that he can contribute to one half of the fees and that the attendance of R at B R is, in fact, compatible with the lifestyle and observances of both the mother and father and is something that was expected in R's education and upbringing. The mother seeks that the father pay one half of the costs for R. In my view, it is appropriate to pay one half and it would not be appropriate for him to be responsible for the entirety of those fees. As I have indicated, I doubt that the mother can meet her share of the fees from her own resources but she has obviously been able to borrow sums from her parents to enable her to meet other expenses and she makes this application in the knowledge that she will have to fund one half of the fees. As it is clear to me that she cannot do that from her own income, I infer that she has resources available to her from her parents to meet her share of the fees." F & S [2003] FMCAFam 531, [11]-[18], [25]-[31].
Private schooling, income increased, no other relevant factor, departure application dismissed: "[55] The situation in relation to the children remains unchanged in that they are attending a private school, the needs of the children remain unchanged particularly in relation to B, the wife’s circumstances have not changed in that she continues to remain unemployed, whereas the husband’s circumstances have changed considerably in the sense that his income has increased. [56] I am not satisfied that the husband has established that there are any special circumstances, and I dismiss his application for departure from the administrative assessment.": Porter & Porter (No 2) [2022] FedCFamC1F 244.
[C-A] Child Support - Enforceable Maintenance Liability - Statutory Framework
See generally, purpose of child support scheme: Jim Kay and Child Support Registrar [2015] AATA 429, [64] et seq <https://jade.io/article/397683>.
Employer Withholding: "69. Payment of an enforceable maintenance liability may come about in various ways. It may come about by way of direct payment to the payee[76] or to a third person.[77] In those instances, a payment in a form, other than money, by the payer or a transfer of property or right by the payer may be taken to be an amount paid in complete or partial settlement of an amount payable under an enforceable maintenance liability. It will only be taken to be such, though, “if both the payer and the payee of an enforceable maintenance agreement so intend.”[78] The amount of the payment that is taken to have been made in this way may be an amount agreed between the payer and the payee or, if there is no agreement, an amount determined by the Registrar.[79] 70. More commonly payment is made by way of the Registrar. Although payment of an enforceable maintenance liability may be made by voluntary payment arrangements with the Registrar,[80] the general way in which an enforceable maintenance liability is collected by the Registrar is by deduction from the salary or wages of the person liable to pay the amount (payer). That deduction, known as an “employer withholding”, is made under the authority of Part IV of the CSRC Act but it is subject to certain qualifications. One qualification, for example, occurs if the payer elects that the employer withholding is not to apply in relation to the liability, the Registrar may decide that the employer withholding does not apply in relation to the liability but only if satisfied that the payer is likely to make timely payments to him or her under the liability.[81] Section 47 imposes duties on the employer to forward the deducted amounts to the Child Support Registrar and to provide details relating to it. Once payment is made, the Registrar must deal with that payment in the manner specified under Part V of the CSRC Act.": Jim Kay and Child Support Registrar [2015] AATA 429 <https://jade.io/article/397683>.
Debt Recovery by payee to enforce payment of child support: Jim Kay and Child Support Registrar [2015] AATA 429, [71] et seq <https://jade.io/article/397683>.
Refund of wrongly deducted funds / garnished funds, referred to in Harrdine v The Commonwealth of Australia (Child Support Agency) [2018] SADC 144, [223] et seq, in relation to claim for damages for distress aggravated by Agency wrongly deducting funds from plaintiff. The Court stated: "In particular, it was plainly within the power of the Agency to call the evidence as according to Ms Berry the relevant officers would be readily identifiable via their login codes, and it would be a simple matter for the Commonwealth to identify which officer had the responsibility for managing the file or managing the relevant officers at the relevant time, only some 3 to 4 years prior to trial. Further, no explanation was proffered as to why they were not called, and indeed Mr O’Leary counsel for the Agency objected when his only witness Ms Berry was asked why the relevant officers were not being called. Ms Berry responded that she did not know why. The absent officer or officers were both entirely in the Agency’s ‘camp’, and plainly integral to the decisions that were taken. In all the circumstances, the court finds that there has been no explanation for the failure to call the evidence, that it is plainly relevant to the issues, and the evidence plainly sits within the Agency’s ‘camp’ and that absent any rational attempt at an explanation to the contrary the Agency is in a position to call it. In the circumstances the court concludes that a legitimate inference arises that the uncalled evidence would not have assisted the Agency’s case. Doing the best the court can in the absence of anyone, or any records, that can explain the Agency’s motivation for the actions taken, the court has carefully considered the totality of the evidence in assessing the reasons for its actions. The court has regard to Ms Berry’s evidence as to the Agency’s proprietary management system CUBA which she said maintained a primary record of all relevant contact with the parties to the Child Support matter in question, and which such system required and prompted staff to obtain the relevant information and inferentially follow the required procedures at each step of the way. The court assesses in that light the failure to follow the required policies and in doing that the failure to take the simplest and most obvious steps to give notice to Mr Harradine and to check that actual arrears were owing, together with the Agency’s actions to ignore filed information as to Mr Harradine’s actual address and contact details, and ignore the plain inference from the file that private payments had been regular and continuing, and that as Mr Harradine had no notice of a change and was hence likely to be continuing to pay, hence it was highly likely that that no monies were owing. It those circumstances, the court concludes that the decision to proceed to garnishee his wages anyway was at least in reckless disregard of its duty per s 3(1)(a) of the Act to only collect and pay monies that the person is question is liable to pay, its own policies designed to prevent the wrongful garnishing of wages and any interest that Mr Harradine had in that not occurring. If the Agency has a duty to a person whose wages it proposes to garnishee to (a) give them notice prior to doing so as required by its cited policy to that effect, (b) check that monies are actually owing prior to garnisheeing the wages as required by its cited policy to that effect, (c) exhibit reasonable care in the course of exercising their statutory power or (d) not act in reckless disregard of the interests of the person whose wages are to be taken to not have monies they don’t owe wrongly deducted, then it plainly breached all of those duties. As at 23 October 2014, Mr Harradine for the reasons discussed earlier, was under considerable personal, emotional, legal and financial pressure. He was in considerable debt, with all his credit cards at their limit and with pressing bills. When he discovered that approximately half his wages had been garnisheed, he suffered a dramatic reaction in the manifestation of marked distress totally out of proportion to the severity of the stressor, as evidenced by all the symptoms he cited including shock, fear, bewilderment and gastrointestinal reflux requiring medical and psychological attendances and the prescription of medication. These reactions were indeed totally out of proportion to the objective stressor, the wrongful deduction of monies by the Child Support Agency which could objectively be presumed to be rectified in the immediate future, as in fact they were. The court is accordingly satisfied on the basis of the evidence, in particular Dr Loukas’ evidence together with that of Mr Harradine and DSM-5, that Mr Harradine plainly suffered a marked aggravation of his adjustment disorder as a result of the Agency’s actions in deducting the monies in question in the circumstances in question. The aggravated disorder primarily manifested itself in terms of greatly heightened distress rather than any seriously debilitating levels of functional impairment. The court is satisfied that the aggravation of his condition and this severely heightened distress continued over the ensuing two weeks, whereupon upon the refund of the wrongly deducted funds the distress ameliorated such that by the end of the third week, Mr Harradine returned to his pre-aggravated state. ... The court finds in the particular matter before this court concerning Mr Harradine, that the Agency in garnisheeing Mr Harradine’s wages in circumstances where all agree there was no outstanding liability, acted in reckless disregard of the obligation inherent in the objects of the Child Support (Registration and Collection) Act 1988 (“Collection Act”) per section 3(1)(a) to only act in relation to monies which a parent is legally liable to provide, in reckless disregard of its own policy requiring a series of steps be taken to ensure that a person be given notice of proposed garnisheeing of their wages, in reckless disregard of its own policy requiring it ensure the debt is correct before taking enforcement action, and in reckless disregard of any interest Mr Harradine may have in these obligations and policies being adhered to and in not having his monies taken when in fact no liability existed. ... Here, the statutory scheme is primarily designed to support children by ensuring that liabilities for child support are satisfied. On the other hand, central to the statutory process are the persons who are plainly contemplated to be those from whom such payments are to be extracted, and the statute’s objects specifically limit it’s operation to monies that are legally owed by those persons. A further consideration is that the statute provides a process where a person’s property can be forcibly taken from them, but that process plainly operates within a democratic society predicated on a system of private property governed by the rule of law. It is not beyond argument that a statutory process for the taking of private property might impose some kind of duty on those taking the private property to the persons whose property is to be taken. It might be to take reasonable care, it might be to adhere to the specified statutory and procedural safeguards, it might be to not act with reckless disregard to the property rights of persons who are plainly not liable pursuant to the legislation. Whilst ordinarily this court would have no hesitation in proceeding to determine all these issues, the court is also aware that there is no appeal from this decision, it being a review of a minor civil action, and that these issues are of great significance to both the Agency and others who are or may be affected by the Agency’s actions in the future. Accordingly they are deserving of determination by the Supreme Court who can deliver a binding precedent. For that reason the court, having determined that the trial miscarried before the magistrate and conducted a full rehearing, and having found the relevant facts as earlier set out, has determined that it is appropriate per Section 38(9) of the Magistrates Court Act (1991) to refer to the Full Court for determination two issues of law, (a) the applicable elements of the rule in Wilkinson v Downton, but perhaps more importantly (b) the scope and extent of the Agency’s duty pursuant to the Collection Act, if any, to persons from whom they garnishee wages.": [215]-[223],[224], [227]-[229].
[C-B] Binding Child Support Agreement
"[51] A binding child support agreement gives both parties certainty. They enter into these agreements knowing what their obligations are regardless of a change in fortunes of one or both parties for better or worse.": Rake & Rake [2018] FCCA 3181.
"liability to pay child support pursuant to any administrative assessment of child support payable by the husband prior to the date hereof, and the provisions of the Binding Child Support Agreement are intended to replace any such administrative assessment.": O B2.4 in Richards v Richards [2013] FamCA 1083.
Services Australia
Binding Child Support Agreement <https://www.servicesaustralia.gov.au/binding-child-support-agreement>.
Forms <https://www.servicesaustralia.gov.au/sites/default/files/2025-06/cs1666-2506en-f.pdf>.
What is a BCSA
TEMPLATE, Family Law Book: <https://thefamilylawbook.com.au/wp-content/uploads/2021/09/bindingcsagreet.doc>.
BCSA v Financial Agreement, implement financial agreement as BCSA: "Under an administrative assessment, the liable parent is liable to pay child support for the daily rate worked out in accordance with the assessment under Pt 5. This is due and payable 30 days after notice of the assessment is given to the liable parent, and thereafter on the seventh day of each following calendar month (s 78). If unpaid, this amount becomes a debt due and payable by the liable parent to a carer, and may be sued for and recovered in courts with jurisdiction for the recovery of such debts or a court having jurisdiction under the Assessment Act (s 79). In contrast, Pt 6 of the Assessment Act allows the parents of a child to agree between themselves the child support payable for a child under a child support agreement. Under the statutory scheme, to be a child support agreement, an agreement must be a “binding child support agreement” or a “limited child support agreement” (s 81). A binding child support agreement is defined in s 80C: (1) An agreement is a binding child support agreement if: (a) the agreement is binding on the parties to the agreement in accordance with subsection (2); and (b) the agreement complies with subsection 81(2). (2) For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if: (a) the agreement is in writing; and (b) the agreement is signed by the parties to the agreement; and (c) the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters: (i) the effect of the agreement on the rights of that party; (ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and (d) the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and (e) the agreement has not been terminated under section 80D; and (f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party. Note: For the manner in which the contents of a binding child support agreement may be proved, see section 48 of the Evidence Act 1995. A limited child support agreement is defined in s 80E(1): 80E Making limited child support agreements (1) An agreement is a limited child support agreement if: (a) it is in writing; and (b) it is signed by the parties to the agreement; and (c) it complies with subsection 81(2); and (d) either: (i) it meets the conditions in subsection (2), (3) or (4), as the case requires, (assuming the agreement is accepted by the Registrar); or (ii) it has been accepted by the Registrar under section 98U. Note: In addition to the requirements in this section, there must be an administrative assessment in force in relation to the child in respect of whom the agreement is made (see subsection 92(3)). … Importantly, s 84(5) provides that nothing in Pt 6 of the Assessment Act is taken to prevent the same document being both a child support agreement and a “parenting plan”, a “maintenance agreement or financial agreement under the Family Law Act 1975”, or “a Part VIIIAB financial agreement”. An agreement under s 90UD of the Family Law Act 1975 (Cth) is a Pt VIIIAB financial agreement. Once an application is made to the Registrar for acceptance of a child support agreement, the Registrar must accept the agreement if it has been properly made (s 92(1)). An application is properly made if it is in the manner specified by the Registrar (ss 89 and 150A) and the relevant agreement is a child support agreement (s 88). Pursuant to s 93(1), the acceptance of an agreement, where child support is not already payable for a child, has the same effect as the acceptance by the Registrar of an application for an administrative assessment of the child under Pt 4 and means that child support is payable for the child by the liable parent from the day on which the application for acceptance was made. Where a child support agreement has been accepted by the Registrar and provides for periodic payment of amounts of child support, the provisions have effect, for the purposes of Pt 5 and s 142, as if they were an order made by consent by a Court under Div 4 of Pt 7 of the Assessment Act (s 95(2)). Div 4 of Pt 7 provides for a Court to make “departure orders”, namely orders departing from the provisions of the Assessment Act in relation to an administrative assessment of child support of a child. The practical effect of this is that s 35C provides that any administrative assessment under Pt 5 of the Assessment Act is subject to departure orders or “any provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent” (see also s 66(8)). ... The legislative history to Pt 6 of the Assessment Act provides important context in understanding the concept of a binding child support agreement under the statutory scheme. ... The Ministerial Taskforce also noted that the Registrar had no discretion to refuse to register a child support agreement that has been made in the proper form (p 211) and, as such recommended that the Registrar be given such a discretion where one or both parties had not certified as to having received legal advice (recommendation 17.2). Significantly, however, the 2006 Amendment Act did not introduce such a discretion. Rather it introduced the concept of a “limited child support agreement” where one or both parties had not received legal advice (see [22] above). .... Against this background, and with respect to the primary judge, it is important to identify some key elements of the statutory scheme and important distinctions between financial agreements under the Family Law Act and child support agreements under the Assessment Act, which key elements were overlooked in the primary judge’s analysis. First, s 92 of the Assessment Act provides that the Registrar must accept a child support agreement if it has been properly made, which requires the application to meet the formal requirement in s 89 and to meet the description of a “child support agreement” (s 88). An application for acceptance of a child support agreement can be made by only one parent of a child. Furthermore, the ambit of the Registrar’s statutory task in deciding whether or not to accept a child support agreement is governed by s 91 of the Assessment Act (emphasis added): In determining whether an agreement made in relation to a child is an agreement referred to in paragraph 88(a), the Registrar may act on the basis of the application made to the Registrar for acceptance of the agreement, the documents accompanying the application and the agreement itself, and is not required to conduct any inquiries or investigations into the matter. This manifests a clear legislative intention that the Registrar is not required to consider whether both parties had a specific intention to enter into a binding child support agreement under the Assessment Act in determining whether an agreement meets the statutory test for a binding child support agreement. This would be contrary to the Registrar’s power under s 91 to act on the application by one party alone with no notice to the other party until the agreement is accepted (see s 96), and that the Registrar is “not required to conduct any inquiries or investigations into the matter”. Importantly, these provisions pre-dated the enactment of the 2006 Amendment Act, which did not contain the safeguards concerning independent legal advice, and were not commented on by the Ministerial Taskforce. This can be contrasted with the Family Law Act, where the binding status of a financial agreement for the purposes of that Act only becomes relevant for the purposes of that Act if a party to the agreement seeks to invoke a provision of Pts VIII or VVIIAB which is ousted by a binding financial agreement. A binding financial agreement does not need to be registered for the Court to make orders under s 90KA(c) or 90UN(c) that a binding financial agreement is enforceable (see s 105(2A) of the Family Law Act). Secondly, the Assessment Act essentially creates a binary choice between administrative assessments and child support agreements as to the administrative process for assessing the liability and amount for child support of a liable parent. The introduction of the requirements for independent legal advice for a binding child support agreement, as demonstrated by the legislative history above, was to introduce further protection for parents entering into agreements which meet the description of a child support agreement. It was not intended to create a new legal requirement that both parties must have had the intention specifically to enter into a binding child support agreement. In contrast, a financial agreement made under the Family Law Act, but which is not binding under ss 90G or 90UN, is still a financial agreement within the terms of other sections of the Act (for instance ss 90B or 90C) and may be relevant to the exercise of the Court’s discretion to make certain orders under that Act (see Senior at [96] per May J, citing Woodland at [37]-[39] per Finn, May and O’Reilly JJ). In this sense, the operation of the Family Law Act does not create a binary choice between a binding financial agreement and another form of administrative process for assessing liability for spousal maintenance or interests in property. Rather, s 90G and 90UJ essentially oust the jurisdiction of the Court to make certain types of orders if a financial agreement is binding for the purposes of the Family Law Act. This is to be contrasted with the position of a liable parent under the Assessment Act, who will be liable for child support payments under either an administrative assessment or a child support agreement (subject to a Registrar’s determination under Pt 6A subsequent to an administrative assessment or a court order). The Assessment Act does not empower the Registrar to take into account a child support agreement in making an administrative assessment under Pts 4 and 5 which does not meet the requisite definition of a binding child support agreement or limited child support agreement under Pt 6. Indeed, this would also be contrary to the statutory scheme. Where an agreement does not meet the description of a child support agreement in s 81, it has no legal operation or effect for the purpose of the Assessment Act. Thirdly, as described by Le Poer Trench J in Pascot v Pascot [2011] FamCA 945 at [19] (referring to Senior), to find an agreement is a binding financial agreement under the Family Law Act is essentially a three-step process, namely: (a) Is there an agreement (contract) between the parties? (b) Is there an agreement which qualifies as a “financial agreement”? In this case that requires compliance with s 90C of the Act. (c) Is the “financial agreement” binding on the parties and the court as set out in s 71A(1)? To qualify for that description the financial agreement must comply with s 90G. For a particular agreement to fall within the definition of a “financial agreement” under ss 90B to 90D and ss 90UB to 90UD of the Family Law Act under step (b), each requires that the “agreement is expressed to be made under this section” (see, for example, s 90B(2)(b)). It was in this context, in considering an agreement which had been expressed to be under the wrong section of the Family Law Act, that the Court in Senior found that the doctrine of rectification could apply to financial agreements where it was the common intention of the parties that it was intended to be a financial agreement under a particular section. The Court held that the strict compliance test pronounced by Black v Black [2008] FamCAFC 7; 38 Fam LR 503, which required a financial agreement correctly to identify the relevant section to fall within the statutory definition, only applied to binding agreements under s 90G (see also s 90G(1A) which was introduced in response to Black v Black). Otherwise, the common intention of the parties could overcome the mere technical error through application of common law and equitable principles concerning rectification. In contrast, the legislative process for finding that an agreement is a child support agreement which is acceptable under s 92 of the Assessment Act involves only two steps, namely: (a) Is there an agreement (a contract)? (b) Is there a child support agreement (i.e., either a binding child support agreement or limited child support agreement)? With respect, the primary judge has incorrectly sought to rely upon the references to general principles of contract and equity in Senior to impute a requirement that the parties not only had to have an intention to enter into a binding agreement (as required by general principles of contract law), but also under step (b) required a common intention to enter into a binding child support agreement (primary judgment at [131] and [134]). In particular, her Honour has failed to recognise that there is no requirement equivalent to the Family Law Act for a child support agreement to express that it is made under a particular provision of the Assessment Act. Indeed, s 84(5) provides that the same document may be both a child support agreement and a financial agreement under the Family Law Act. Fourthly, in contrast with the consequences of a finding that a financial agreement is binding under ss 90G or 90UJ of the Family Law Act (namely that the Court’s jurisdiction is ousted in certain respects), the importance of the Registrar accepting a child support agreement extends beyond the enforceability of certain provisions of the Assessment Act. In particular, once a child support agreement is accepted, the Registrar must complete a “notional assessment”, using the provisions of Pt 5 for an administrative assessment, of the annual child support payable by a liable parent under the Act as if a child support agreement had not been accepted (see Pt 7A). This notional assessment was introduced by the 2006 reforms and is conducted to enable the entitlement to Family Tax Benefit Part A (FTB Part A) for both parents, which in part relies upon the concept of maintenance income, to be accurately calculated. Prior to the 2006 reforms, each parent’s split of FTB Part A was worked out on the basis of the agreement the parents made between themselves. To protect government revenue, Centrelink would only approve such an agreement if the amount or value was equal to or more than the amount of liability that would result if there had been an administrative assessment. This was found to discourage parents from making agreements, particularly agreements which provided for non-periodic payments of child support, such as a lump sum payment (see EM to 2006 Amendment Bill at p 152). ... In support of this reasoning the Father submits that s 84(1)(a) provides that a child support agreement can include provisions that child support be paid in periodic amounts. Where a child support agreement includes a provision for the periodic payment of child support, it is said that pursuant to s 95(2)(a) of the Assessment Act, that provision has effect for the purposes of Pt 5 and s 142 as if they were orders of the Court. Once a child support agreement is accepted by the Registrar, due to the interaction of the relevant sections, it is said that the provisions for the payment of child support periodically becomes the “administrative assessment” (“administrative assessment” being defined in s 5 as an assessment under Pt 5). When it is understood that any provision for periodic child support in a child support agreement becomes an administrative assessment, or if there is no such periodic provision that upon registration of the agreement the Registrar must make an administrative assessment under the formula, it is said the import of the additional requirements in s 84(1)(d) and (e) is identified. Indeed, the significance of this, it is submitted, is that the acceptance and registration of a BCSA causes the creation of an administrative assessment (either in terms of a specific provision in the agreement, or in accordance with the formula). ... As to purpose, as the Registrar correctly submits, the mischief to which s 84(6) is directed may be characterised as requiring that an agreement containing a non-periodic payment, which is expressed to reduce an administrative assessment, also provide for how it will do so. If a payment, which is in some sense “non-periodic”, is not expressed to reduce an administrative assessment (and so not within the definition) – say, because there is no administrative assessment already in place, then there is no need for it to state how it would do so. Rather, the provision will likely fall within s 84(f) and require the party to make the payment without a reduction to their administrative assessment as part of the registrable BCSA. Alternatively, it will not form part of the BCSA registrable by the Registrar, and will have effect (or not) according to its terms: see ss 84(3) and 84(4).": Child Support Registrar v AFS19 [2021] FCAFC 207, [6]-[12], [18], [24]-[38] (Griffiths J), [86], [92] (Lee J).
> Query effect of overlaps of provisions for payment in BCSA, BFA and Consent Orders of court.
> Summary: "The Full Federal Court examined the legislative scheme for child support agreements in Child Support Registrar v AFS19 [2021] FCAFC 207. The observations of the Court in that matter are highly instructive and relevant to the resolution of this review. The Court observed that the child support scheme provided for either an administrative assessment of child support through the use of a statutory formula in Part 5 of the Act, or through the use of consent arrangements in Part 6 of the Act. Part 6 allows for parents and non-parent carers to agree between themselves the child support payable for a child, and to formalise this in a child support agreement: see [48]-[49]. Griffiths J examined the legislative history of Part 6 of the Act and noted that a proposal to introduce discretion to refuse to register a child support agreement had specifically not been adopted in amendments to the legislation, but instead provision was made for limited child support agreements and binding child support agreements, the latter with the safeguard of requiring legal advice to be obtained and certified. The Court (through Lee J) observed that a binding child support agreement was a statutory creation for a specific purpose and its operation was closely regulated by the Act. Importantly, the Court made it clear that the contemplated role of the Registrar is not to conduct inquiries, but rather on the basis of the documents provided, to assess whether the agreement has the characteristics identified by Part 6 of the Act. The Full Court found error in the approach of the primary judge in that case who considered that principles of law and equity applied when deciding if a child support agreement was binding on the parties. Griffiths J observed that the legislative process for finding that an agreement is a child support agreement which is acceptable under section 92 of the Act involved two steps: whether there is an agreement or contract and whether it is a child support agreement.": Draper and Holloway (Child support) [2022] AATA 1698, [17]-[22].
Implement Financial Agreement as BCSA: Jantz and Pether (Child support) [2022] AATA 633.
What is NOT a BCSA
Non-compliance with s 85 Assessment Act - not eligible carer: "[13] Neither party identified what I have ultimately determined to be a fatal flaw in both of their applications, being that the agreement was not in fact a binding child support agreement. ... [18] Section 85 was inserted into the Act in 2018 pursuant to the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 (Cth). This amendment arose following the decision of the Full Court in Masters v Cheyne [2016] FamCAFC 255 (“Masters & Cheyne”). In that case, the parties entered into a binding child support agreement for the mother to be paid child support in circumstances where the children were living primarily with the mother. By the time of the hearing, the one remaining child under 18 years was living with the father six nights each week and the mother one night. However, as a result of amendments to the Act made subsequent to the parties entering into the agreement, the father was required to continue paying child support to the mother. [19] At the time of the agreement in Masters & Cheyne, s 12(2)(b) of the Act provided that child support terminates if the person entitled to child support ceases to be an “eligible carer”1. However, the amended s 12(2AA), applicable at the time of the proceedings provided that the agreement would only terminate if, both parents ceased to be eligible carers. [20] The trial judge in Masters & Cheyne dealt with this seeming inequity by finding that there were exceptional circumstances and that the father would suffer hardship if the agreement were not set aside. Although, I note that the Full Court ultimately allowed the appeal by the mother in that matter on the basis that it was not open for the Court to find hardship. [21] Subsequently, s 85(1) was introduced to prevent this situation from occurring in future. ... [22] Unfortunately, the agreement in this case included the following clause at 8(b): In the event that [Ms Goff] [the mother] ceases to be an eligible career in respect of the child, then, with the exception of any arrears owing to [Ms Goff] as at that date, the parties hereby agree that: (iii)non-periodic maintenance payable pursuant to this Agreement shall remain payable by [Mr Conley] [the father]; (emphasis added) [23] Nonetheless, neither party was aware there was an issue with the agreement until the mother sought to register it with Services Australia in late 2023, so it could be enforced. The mother’s evidence is that at that time she was informed that it could not be accepted because of clause eight. [24] Despite this, counsel for the mother argued the issue could be cured by the court making orders directing the parties to severe that clause from the agreement so it would be accepted by Services Australia. In essence it was argued this would be a machinery order to give effect to clause 11, which required the parties to do all things necessary to give effect to the agreement, including the execution of a further agreement in like terms if required by the child support registrar. [25] However, in my view, the removal of the offending clause would not render it an agreement in “like terms” but would constitute a variation to the agreement and s 80CA of the Act makes it clear that it is not possible to vary a binding child support agreement. [26] Counsel for the mother also sought to argue that the agreement was enforceable pursuant to s 85(2) because it “otherwise complied with the legislative requirements” for the agreement to be binding. However, no authority was provided to support this submission, which is in clear contradiction to a plain reading of s 85(1) of the Act. ... [27] The inclusion of clause 8 in the agreement means that the agreement does not comply with s 85 of the Act and is therefore, not a binding child support agreement. [28] As there is no binding financial agreement, it can neither be set aside or enforced and both applications before the court must fail. [29] This is most unfortunate where the intention of the parties was clearly to enter into a binding child support agreement in the terms set out in the agreement, each party believed it was binding, and the father only ceased paying because he asserts that he could not afford to make the payments. [30] It is also unfortunate given the father appears to have had more than sufficient funds to continue to pay the child support in that agreement. In this regard, I firstly note that X ceased attending private school at the start of 2023, reducing the father’s commitment by some $30,000 per year. Secondly, the father’s own evidence was that after he ceased paying child support he lent his other daughter almost $60,000 (a loan he ultimately forgave), bought X a car she could not yet legally drive, continued to pay for his sports membership (and for sports trips to other exclusive locations), continued to pay fees for multiple investments, travelled overseas, and sent approximately $16,000 to his new wife’s family in Country B. [31] Nonetheless, for all of the aforementioned reasons all applications in this matter will be dismissed.": Conley & Goff [2024] FedCFamC2F 1332.
Agreements made before amendments introducing BCSA and LCSA: "[1] This is an application, as amended, filed by the wife on 16 February 2012. She seeks orders by way of enforcement of the Child Support Agreement (“the agreement”) entered into by the parties on 17 May 2007. [2] The agreement was entered into prior to the introduction of the amendments to the Child Support (Assessment) Act 1989 (Cth) which provided for binding child support agreements and limited child support agreements. Whilst not in the form required of a binding financial agreement in accordance with the transitional provisions, the agreement is treated as if it was a binding child support agreement. The agreement, which relates to child support other than in the form of periodic cash payments, has been registered for the purposes of enforcement as an order under Part VII of the Family Law Act 1975 (Cth).": Trotter & Payne [2012] FamCA 144.
Date of Effect of BCSA
"Section 23 of the Child Support (Assessment) Regulations 2018 provides: 23 Date of making of application etc. (1) An application for administrative assessment or for the acceptance of a child support agreement is to be taken to have been made on the day on which the application is received in an office of the Human Services Department. ... Having regard to the wording of the letter from [Ms A], the Tribunal finds that an application in relation to the acceptance of the agreement was received in writing by Child Support on 3 May 2022. For the sake of completeness, the Tribunal also noted Mr Frobisher’s submission that in speaking to a Child Support officer on 5 May 2022 about the agreement, he made an oral application for the agreement to be accepted. The Child Support papers do not contain evidence that Mr Frobisher spoke to an officer on 5 May 2022. The objections officer noted that the attempt to speak to Mr Frobisher was unsuccessful. The file note dated 5 May 2022 refers to an ‘inbound call’ and an unsuccessful attempt to call Mr Frobisher about ‘agreements’ at 8:29 am. Mr Frobisher’s evidence is that he rang Child Support on the 131 number at 7:58 am and again at 8:43 am as his solicitor had informed him the agreement had been forwarded to Child Support and he wanted to ensure it had been received and nothing else was required. Mr Frobisher thinks the call at 7:58 am went unanswered, so he rang back at 8:43 am and he spoke to a man who confirmed the documents were received and he would receive a confirmation email to say the agreement was accepted. Immediately after the hearing Mr Frobisher provided call logs from his mobile phone which confirm his oral evidence. Mr Frobisher does not recollect receiving a call from Child Support at 8:29 am. His second call to 131272 lasted 8 minutes and 31 seconds. The Tribunal is satisfied that Mr Frobisher had no reason to ring Child Support on 5 May 2022 other than to ensure the binding child support agreement was implemented and that this constituted a verbal application for acceptance. Despite a lack of corroborating evidence in the papers, the Tribunal is satisfied that Mr Frobisher made a verbal application for the agreement to be accepted on 5 May 2022. This is a moot point, as it was made two days after the written application was made. The Tribunal finds that the written application for acceptance of the agreement was not made to Child Support within 28 days after the day it was signed. In accordance with paragraph 34B(2)(d) of the Act, the date from which the binding child support agreement applies is the day on which the application was made to the Registrar for acceptance of the agreement. The Tribunal has found that the date on which the application was made to the Registrar was 3 May 2022.": Frobisher and Elford (Child support) [2022] AATA 4009.
28 day period to register lapsed, effective date being date of application for acceptance: "5. The statutory provision relevant to this review is section 34B(2)(d) of the Child Support (Assessment) Act 1989, (the Act). This section provides, relevantly, that, with respect to an application for acceptance of a binding child-support agreement made more than 28 days after the day on which the agreement was signed, the child-support period starts on the day on which the application was made to the Registrar for acceptance of the agreement. The issues which arise in this case are: · the issue in this case is the determination of the effective date of commencement of [Child 1]’s enrolment at [School 1] at [Suburb 1], [State 1] ([School 1]) in accordance with the meaning of the words “the commencement of [Child 1]’s enrolment” as used in clause 13 of the Binding Child-Support Agreement attached to consent orders made in the Family Court of Australia at [City 1] on [date] August 2016 (the Agreement), the subject of Mr Macksville’s application to the Registrar on 11 December 2017, before the Tribunal at pages 44 to 59 of Exhibit 1. ... 7. Both parties accepted that Mr Macksville’s application for acceptance of the Agreement was made to the Registrar on 11 December 2017. ... 10. On 9 August 2016, the parties reached agreement as to the terms of a Binding Child-Support Agreement dealing with, amongst other issues, [Child 1]’s schooling arrangements, agreeing, relevantly, that he should attend [School 1] from the commencement of year 5 in 2018 until the completion for secondary education. ... 23. The Tribunal therefore finds that by completing, signing and returning [School 1]’s Acceptance Form and paying the $2,800 Enrolment Fee, Mr Macksville had commenced and completed the process of having [Child 1]’s name placed on a list of students “enrolled” to commence as a year 5 Day Boy at [School 1] in 2018, and that , accordingly the words used in Clause 13 of the Agreement should be construed to mean that the commencement of [Child 1]’s enrolment at [School 1] was effected when Mr Macksville returned the school’s Acceptance Form and paid the non-refundable Enrolment Fee in or about the early part of August 2016. 24. As Mr Macksville did not apply to the Registrar for Acceptance of the Binding Child-Support Agreement until 11 December 2017, more than 28 days after the Agreement came into existence, the effective date for acceptance of the Agreement Is 11 December 2017, and the effective date for the purpose of application of the provisions of Clause 13 of the Agreement Is 11 December 2017. 25. As the Tribunal has reached to the same conclusion as the objections officer in the decision under review, the Tribunal affirms that decision.": Macksville and Macksville (Child support) [2018] AATA 4581
From time of registration, not when it is signed by the parties - process of applying to Registrar to have it accepted as BCSA:
> "The law relating to child support and binding child support agreements is detailed in the Child Support (Assessment) Act 1989 (the Act). Under Part 6 of the Act, section 92 explains when the Registrar must accept an application for acceptance of a binding child support agreement. If the Registrar is satisfied that an application has been properly made, the Registrar must accept the agreement. Section 88 sets out the application requirements of which there are two: · the agreement must be a child support agreement; and · it must comply with section 89. Section 89 of the Act relates to formal requirement for applications. It provides that an application for acceptance of an agreement by the Registrar must be made in a manner specified by the Registrar. It also notes that the Registrar may specify the manner in which an application may be made as provided for in section 150A of the Act. Section 150A of the Act provides that the Registrar may specify the manner in which an application required to be made under the Act is to be made or given. In this case the issue in dispute is that Mr Venables contends that he provided the signed binding child support agreement to the Child Support Agency on 3 January 2020 and that it should have been accepted by the Child Support Agency effective from 26 November 2019 that being the date that the binding child support agreement was signed by all parties or at least from 3 January 2020, the date when he provided the signed agreement to the Child Support Agency. Mr Venables stated that he was unaware that he needed to make an application for the binding child support agreement to be accepted. He assumed that once he provided the agreement to the Child Support Agency it would be accepted and registered. He did not know that he had to apply for the agreement’s acceptance. In addition, Mr Venables stated that he was unaware of the urgency to take action within 28 days of the day on which the agreement was signed. Ms Venables responded that from the start of the binding child support agreement process she was in close contact with her lawyer and her lawyer advised her that Mr Venables’ lawyer would be sending in the agreement but that it would not take effect until the Child Support Agency implemented it. The Tribunal carefully considered all of the information in the Child Support Agency papers and the evidence provided by both parents at the hearing. It is not in dispute that the parents agreed on the terms of a binding child support agreement and that they both signed the agreement. There is no dispute that the agreement was properly made as the legislation requires. The issue in dispute is the date from which the binding child support agreement applies. The Tribunal is satisfied that Mr Venables first made contact with the Child Support Agency about a binding child support agreement on 24 December 2019. On that occasion he sent through an unsigned agreement. There was a telephone discussion between an officer of the Child Support Agency and Mr Venables and the officer noted that he told Mr Venables that “once we receive the application it would be forwarded to the agreements team for vetting”. The Tribunal accepts that Mr Venables did not realise from that conversation that he needed to apply for the agreement to be accepted. Mr Venables told the Tribunal that he assumed when he sent through the signed binding agreement on 3 January 2020 that the Child Support Agency would know that he was seeking to have the agreement accepted. He agreed that he had no further communication with the Child Support Agency until he telephoned the Child Support Agency on 17 February 2020 to ask about the implementation of the agreement. The Tribunal agrees with the Child Support Agency that an application is required in relation to the acceptance of a binding child support agreement. Section 89 of the Act provides that the application for acceptance by the Registrar of an agreement must be made in the manner specified by the Registrar. Mr Venables agreed that he did not make a written application for acceptance of the agreement. The Tribunal finds that his application was verbal arising out of the telephone discussion about the agreement between Mr Venables and the Child Support Agency on 17 February 2020. There is no evidence of any earlier discussion between Mr Venables and the Child Support Agency about the agreement on or after he sent the signed agreement to the Child Support Agency on 3 January 2020 and Mr Venables did not suggest that there was. The Tribunal is satisfied that after 17 February 2020 the Child Support Agency considered the content of the agreement before accepting the agreement as properly made on 20 February 2020 and applying it from the date of verbal application: that being 17 February 2020. The Tribunal finds that date is consistent with section 34B of the Act which provides that in circumstances where the application for acceptance of the agreement is not made within 28 days after the day on which the agreement was signed, and none of the other provisions in that section apply, then the date from which the binding child support agreement applies is the day on which the application was made to the Registrar for acceptance of the agreement (paragraph 34B(2)(d) of the Act). The Tribunal has found that the date on which the application was made to the Registrar was 17 February 2020. Hence the Tribunal concludes that the decision to accept a binding child support agreement and apply it to the child support assessment from 17 February 2020 was correct.": Venables and Venables (Child support) [2021] AATA 2284, [12]-[24].
> BCSA signed 2018, AATA found that it was so made at the time, remitted matter back to Registrar to determine an application for an administrative assessment of child support re BCSA: "Having regard to the wording of the letter from [Law Firm 1], the Tribunal finds that an application in relation to the acceptance of the agreement was received in writing by Child Support on 11 October 2018. The Tribunal finds that the agreement was signed by Ms Stanley on 3 July 2018 and by Mr Bishop on 8 June 2018. Section 92 of the Act, as discussed in paragraph 8 of these Reasons, states that the Registrar must accept an application for acceptance of an agreement if the application is properly made. While subsections 92(3) and 92(5) of the Act provide for circumstances where an agreement must be refused, these provisions do not apply in this case. The Tribunal finds that the application for acceptance of the agreement was made in writing by Ms Stanley’s solicitor, who was an authorised representative at the time of making the application on 11 October 2018. It was not open to Child Support to refuse to accept the agreement in circumstances where an application was properly made. The Tribunal has found that the application to Child Support was properly made on 11 October 2018 and therefore the Child Support Registrar had no choice but to accept the agreement. The Tribunal further finds that the written application for acceptance of the agreement was not made to Child Support within 28 days after the day it was signed. The agreement was signed by Ms Stanley on 3 July 2018, after Mr Bishop signed the agreement on 8 June 2018. In accordance with paragraph 34B(2)(d) of the Act, the date from which the binding child support agreement applies is the day on which the application was made to the Registrar for acceptance of the agreement. The Tribunal has found that the date on which the application was made to the Registrar was 11 October 2018. Accordingly, the Tribunal finds that the application for acceptance of an agreement was made on 11 October 2018 and the Registrar must then determine whether an application for an administrative assessment of child support could be accepted from 11 October 2018.": Bishop and Stanley (Child support) [2023] AATA 4298, [17]-[21].
Series of BCSA registered: "Re-exercise of the discretion under s 136(2) of the Assessment Act The husband and the wife were married in 2010. They have three children: X, born in 2004; Y, born in 2010; and Z, born in 2013. Final separation occurred in March 2016. Later that month, litigation between the husband and the wife commenced. In October/November 2017, the husband and the wife commenced negotiations to finalise outstanding issues. A binding child support agreement formed part of the process. There was more than one version of the child support agreement. Before embarking on a detailed consideration of the relevant evidence and submissions – it is important to clarify the situation in relation to the operative binding child support agreement. Between November 2017 and March 2018, the parties entered into three separate agreements. The first agreement was dated 15 November 2017. It is contained at p.251 of the Appeal Book. That agreement was amended and the parties entered into a second agreement dated 12 February 2018. Certain handwritten changes were made to the second agreement. It is accepted between the parties that the handwritten changes were made and initialled on 1 March 2018. Hence, it is said throughout the record (including during the course of the trial and at the hearing of the appeal) that the third agreement was dated 1 March 2018 – even though the third agreement still bears the date on the front of 12 February 2018. The third agreement can be found from p.264 of the Appeal Book. The only agreement that was accepted by the Child Support Registrar is the third agreement. This is the only operative binding child support agreement between the husband and the wife. The third agreement was accepted (under s 92 of the Assessment Act) by the Child Support Registrar for registration on 3 April 2018. The Registrar has acted on the third agreement. In these reasons for judgment, I will refer to the agreement dated 1 March 2018 (accepted by the Child Support Registrar) as “the third agreement”. As can be seen from s 136 (below), the jurisdiction of the Court under s 136(2) to set aside an agreement – only arises in respect of an agreement that has been accepted by the Registrar. In this case, the jurisdiction of the Court only arises in respect of the third agreement.": Cao & Trong [2023] FedCFamC1A 40.
Services Australia, form CS1666, p 8: "Start date of your agreement If child support is already payable and the application for acceptance of the agreement is not received by Services Australia within 28 days of the agreement being signed by all parties (or within 90 days if the applicant lives overseas), the assessment will only be varied from the day we receive it. If child support is not already payable, we will give effect to the agreement from the day we received the application or the specified start day if this is after the date the application was received. Your child support will be based on your agreement until the agreement ends (subject to any suspension period)."
Bishop above signals that there is a distinction between the date on which BCSA takes effect, and the date on which administrative assessments re BCSA should start - unclear. But see:
Backdating of Child Support liability under agreement - judicial commentary
Weber & Lipson [2014] below.
"[158] In addition, I do not believe that I am authorised, in effect, to back date an application for an administrative assessment of child support to the date the parties separated. There is no child support assessment for the period from July 2010 until February 2011, accordingly there can be no departure from it.": Benson and Benson [2014] FCCA 1193.
"[106] Again, this may be an issue for another day and the final hearing of the matter, particularly whether special circumstances exist sufficient to justify a departure both from the child support agreement and potentially from any administrative assessment of child support. Until that hearing, given that it is likely that both parties acquiesced to [X] attending the school in question, it seems to me appropriate that both make a contribution to the payment of the fees involved.": Delany and Delany [2009] FMCAFam 438.
Not correct to backdate an assessment, matter of the execise of discretion in the circumstances: "39. The Tribunal declined to backdate its decision as to its varying the amount of child support (TD, [74]). It was “reluctant to cause an overpayment situation” to the Father. Its prospective variation of child support was “intended to provide some financial relief [to the Mother] … from her disproportionate contribution towards the children’s needs, in particular, towards X’s orthodontic treatment” (TD, [74]). ... 57. At Ground 7, the Father submitted that the Tribunal was in error because it could not be reasonably satisfied that the departure order was just and equitable as regards to the children, the liable parent and the carer entitled to child support: see: s. 98C(1)(b)(ii)(A). The Tribunal had regard to (as it had to) the matters set out in s. 117(4)(a)–(g). Looking back, as to what was just and equitable the Tribunal was entitled to have regard to past administrative assessments (as it did) which had resulted in the Mother (as the liable parent) paying a higher level of child support than would have been the case had the Father’s substantial “financial resources” (by way of the loan repayment) been brought to account in the administrative assessments: s. 117(4)(d). Looking forward, the Tribunal was entitled to consider (as it did) the children’s “proper needs” [s. 117(4)(d)] and, in the circumstances of this case, the Mother’s commitment to X’s orthodontic treatment costs of $7,338 to which the Father had not contributed (or committed to contribute). In addition, it was reasonable of the Tribunal, in its discretion as to what was just and equitable, not to backdate the decision (as it declined to do) in the Father’s favour thereby avoiding the situation of him having received an overpayment of child support. ... 87. In making a departure order that was “just and equitable”, the Tribunal had regard to the factors in s. 117(4)(a)–(g). It was entitled to have regard to the Father’s significant financial resources in addition to his income — $65,000 loan repayments in FY21–2022 —which had not been weighed in the administrative assessments: s. 117(4)(d). Under s. 117(4)(c) it was also entitled to consider the rate at which the Mother had paid child support since 1 January 2021. It was entitled to be robust in its assessment of the Father’s circumstances because of his non-disclosure: Agrippa. The Tribunal was also entitled to consider the children’s “proper needs” and, specifically, the future costs of X’s orthodontic treatment: s. 117(4)(b). The Tribunal properly considered whether it was appropriate to backdate the decision and, in the Father’s favour, decided not to backdate its decision so as not to create an overpayment situation for the Father.": DPH22 v DPI22 [2023] FedCFamC2G 933.
> but see, in this decision, reference to Agency backdating assessments to date of birth of child: Calafiore & Netia [2018] FamCAFC 220, [3].
"As is apparent from the proposed orders set out above, I find that it is appropriate to back date the departure order to the date upon which Ms Stirling filed her amended initiating application (being 14 December 2009). Until that time, Ms Stirling persisted with her attempts to rely on the Agreement, which attempts ultimately proved futile. In my opinion, she could have and should have sought to register the Agreement at a much earlier time. Had she done so, she could have sought an administrative assessment of child support and applied for a departure at a much earlier stage. She could also have applied for internal CSA reconsideration of decisions contained or necessarily reflected in the administrative assessment. If dissatisfied with such reconsideration, she could have applied to the Social Security Appeals Tribunals for an external review of the relevant decisions. That is not to say that Ms Stirling did not have the right to apply to this Court for a departure order on the basis of section 116(1)(b) of the Assessment Act. Clearly, she did have such a right, but failure to follow the more usual (and preferred) process seems to have led to both parties’ cases – as they relate to child support, at least – being less efficiently conducted than they could have been. I am not prepared to accede to Mr Dobson's request to order that the departure provisions have effect from the date of trial (or even 1 September 2010). I have found that there was merit in Ms Stirling's case for a departure order and, in my opinion, it should have been obvious to Mr Dobson and his advisers that he could not be successful in seeking to limit his child support obligations to the maximum rate payable under the child support scheme. When Ms Stirling eventually realised that the Agreement could not be registered and that other alternatives had to be found, Mr Dobson could have, and should have, reassessed his position in relation to what might be considered a just and equitable contribution on his part to the overall costs of maintaining the children. I am well aware that my orders will create "instant arrears" (as it were), in that the amount of child support that Mr Dobson has been paying since 14 December 2009 is significantly less than the amount that I have found that he should pay. In order to avoid costly and unproductive enforcement proceedings, however, I will record that Mr Dobson should be given credit for the following payments: a) I find that Mr Dobson has paid all the children's educational expenses (in the broadest sense). For this reason, I have ordered that Mr Dobson's obligation to pay notional school fees for the Dobson children should only commence in this calendar year (2011). b) Mr Dobson has paid child support in accordance with the two child support assessments issued on 14 August 2009 (one relating to the period from 13 July 2009 to 13 October 2009 the other relating to the period from 14 October 2009 to 12 October 2010). I do not know what child support Mr Dobson has paid since 12 October 2010. c) In addition to the child support referred to in (b) above, I have found that Mr Dobson was paying school (tuition) fees totalling $1088 per week, all other expenses relating to the children's education totalling $215 per week, and medical/dental and other health care expenses totalling $117 per week. In my opinion, any potential enforcement proceedings must also credit Mr Dobson with these payments from 14 December 2009 to 31 December 2010. I am satisfied, however, that Mr Dobson has the capacity to pay any "instant arrears" that may arise as a result of the orders to be made pursuant to these Reasons (after allowing credits for the amounts referred to in the preceding paragraph). ... I am satisfied that both Ms Stirling and Mr Dobson have conducted themselves appropriately as litigants. Mr Bartfeld urged the Court to have regard to the fact that Ms Stirling persevered with her original initiating application for longer than should have been the case. The fact of the matter is, however, that there was (to use Mr Brown’s description) "an enormous forensic conflict with respect to whose responsibility it was to register the Agreement". Further, Mr Bartfeld described the dispute in relation to the validity of the Agreement as "a technical and complex one". Regrettably, Mr Dobson's objections to Ms Stirling's reliance on the Agreement were raised comparatively late, and with minimal notice to Ms Stirling and her advisers.": Stirling & Dobson [2011] FMCAFam 52, [184]-[188]. [195].
** Arrears arising from delay in registration of BCSA
Expunge arrears and in any case, compliance with BCSA despite non-registration was exceptional circumstances for departure order: "[3] In addition to the parenting issues, I am also asked to determine a further issue between the parties as to the implementation of the Binding Child Support Agreement executed by them on 16 September 2013. ... [22] The father seeks orders in the terms of Exs A1, A5 and A6, which include:— ... That any arrears that have accumulated due to the current administrative assessment of child support as and from the commencement of the Binding Child Support Agreement on 16 September 2013 be discharged. ... [157] The parties entered into a Binding Child Support Agreement on 16 September 2013 (“the agreement“). A copy of the agreement is marked as Ex A4. Recital 2(j) of the agreement confirms that the parties intend the agreement to be registered with the Child Support Agency pursuant to the provisions of Pt VI of the Child Support Assessment Act 1989 (“The Assessment Act“). [158] Paragraph 3(b) of the agreement provides that the husband is liable to pay periodic child support at the rate of $1,200 per child per month, “the first such payment to occur on 31 October 2013 and then on the last day of each month thereafter (it being noted that the husband has already made the payment for the month of September)“. [159] Paragraph 3(i) of the agreement provides as follows:— The husband and the wife agree that the husband is liable to pay child support for the period from the date of the original assessment until the date of this agreement, with the total amount for this period being equal to the monies already paid for that period the effect that no arrears remain payable and no over-payment is created up to the date of this agreement. [160] It is evident from the clauses identified above that the intention of the agreement was that as and from 16 September 2013, being the date of the agreement, the agreement was to cover the field with respect to the father’s obligation to pay child support. Further, it is evident from para 3(i) of the agreement that it was intended that there would be no arrears or over-payments payable for the period up to the date of the agreement. [161] At the time the agreement was entered into both parties were represented. Annexure B to the agreement is a certificate provided by the mother’s then solicitor confirming that he had advised the mother as to the effect of the agreement on her rights and as to the advantages and disadvantages to her of making the agreement. [162] The husband deposes at para 33 of his affidavit filed 14 February 2014 that due to delays, the agreement was not lodged with the Child Support Agency until 4 November 2013. As the agreement was not registered with the Child Support Agency within 28 days of being signed, from the Agency’s perspective it did not take effect as and from 16 September 2013 (as was intended pursuant to para 3(b) of the agreement). Rather, the Child Support Agency implemented the terms of the agreement as from its date of registration on 4 November 2013. [163] As a result of the delay in registration, the Child Support Agency continued to calculate the father’s liability to pay child support in accordance with the assessments of child support for the periods 1 July 2013 to 7 October 2013 and 8 October 2013 to 3 November 2013, both dated 25 February 2014 (“the assessments“). Accordingly, notwithstanding the terms of the agreement, the Child Support Agency assessed the father as having a child support liability pursuant to the assessments for the period 16 September 2013 to 30 October 2013 inclusive. [164] The father’s evidence was that he had complied with the terms of the agreement which required him to make payments direct to the mother rather than to the Child Support Agency. [165] At para 34 of his trial affidavit filed 14 February 2014 the father deposes as to the correspondence passing between the parties’ solicitors regarding the arrears calculated by the Child Support Agency. Seemingly, those arrears could have been expunged by the mother forwarding a letter to the Child Support Agency confirming that pursuant to the terms of the agreement no arrears of child support were due and payable pursuant to the assessments. [166] The mother refused to provide such confirmation to the Agency. At the hearing it was submitted by the mother that the above interpretation of the agreement was not correct. The mother submitted that the correct interpretation of the agreement was that the father was liable to pay child support for the period 16 September 2013 to 30 September 2013, notwithstanding the terms of para 3(b) of the agreement as detailed above. I do not accept that submission. Paragraph 3(b) of the agreement clearly states that:— •The father has already made the payment for the month of September; and •The first payment due under the agreement is payable on 31 October 2013. [167] Accordingly, I am satisfied there is no basis for the mother’s claim that she is entitled to arrears of child support pursuant to the assessments for the period 16 September 2013 to 30 September 2013 inclusive. ... [176] It was said on behalf of the father that the fact that the parties had entered into a Binding Child Support Agreement and that the father had made payments to the mother pursuant to the terms of that agreement during a period when child support liability was continuing to accrue under the assessments was a special circumstance which justified a departure order. [177] In Gyselman & Gyselman (1992) FLC 92-279, the Full Court said at 79,065:— Section 117(2) sets out the grounds for departure for administrative assessment. Each of those grounds is prefaced by the words, “in the special circumstances of the case“. Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. In Savery’s case (page 77,897), Kay J adopting the view in Philippe & Philippe (1978) 90–433 at page 77,202 in a different context, said that “special circumstances“ were “facts peculiar to the particular case which set it apart from other cases“. The approach to the interpretation of the application of the particular grounds in s 117(2) must be guided by that qualification. [178] At the conclusion of the submissions on behalf of the father the mother sought an adjournment to enable her to consider the provisions of the Assessment Act relied upon by the father. Given that the mother was representing herself and having regard to the complexities of the legislation with respect to child support, I acceded to that application and the matter was listed for further hearing on 21 May 2014. That day the mother made submissions in response to the father’s submissions. [179] It was submitted by the mother that the father had not established that there were special circumstances which would justify a departure pursuant to the provisions of s 117(2) of the Assessment Act. [180] In support of that submission, the mother relied upon the fact that the father has failed to meet his obligations pursuant to the terms of the agreement since February 2014. [181] I reminded the mother that the focus of the father’s application was the arrears that have accrued under the assessments for the period 16 September 2013 to 4 November 2013, not arrears which may be payable pursuant to the agreement. During her evidence, the mother conceded that the father had met his obligations pursuant to the agreement for the months of October 2013 and November 2013, albeit that his payment was received late on 7 November 2013 and 2 December 2013 respectively. I confirmed to the mother that the orders sought by the father would not impinge upon the mother’s entitlement to enforce the terms of the agreement. [182] There is no application before me with respect to the allegations made by the mother during her submissions that the father has failed to comply with the terms of the agreement since February 2014. The father’s solicitor indicated to the court that the father denies that allegation. There is no evidence before the court in relation to that allegation and I am unable to make any findings in relation to the same. [183] The mother submitted that the orders I should make with respect to child support are as follows: •That the father pay amounts outstanding pursuant to the agreement. For the reasons identified above, I am not able to make orders as sought; •That the father be prohibited from offsetting periodic payments of child support against non-periodic payments of child support pursuant to paras 3(c) and 3(d) of the agreement. This order relates to the mother’s allegation that the father has not complied with the terms of the agreement. Again, for the reasons identified above, I will not make orders as sought; •That any arrears discharged be referable to the 2013 period when the parties were bound by the assessments. [184] In my view the existence of the agreement, that the father has made payments in accordance with the provisions of the agreement and the fact that notwithstanding those payments, the father has continued to accrue arrears of child support pursuant to the assessments (the operation of which was intended to cease upon the commencement of the agreement) give rise to a special circumstance which justifies the making of the departure order sought. [185] I am satisfied that the agreement entered into by the parties establishes a ground for departure pursuant to s 117(2)(c)(ii) of the Assessment Act. Further, I am satisfied that in the special circumstances of this case as identified above, that it is just and equitable and otherwise proper to make an order as sought by the father. Were a departure order not granted in this instance, the father would continue to have liabilities pursuant to both the agreement and the Assessment Act. Such a circumstance would give rise to a grave injustice to the father and was clearly not the intention of the parties as is confirmed at paras 3(b) and 3(i) of the agreement. [186] Accordingly, I will make orders as sought by the father the effect of which will be to ensure that there is no liability for child support pursuant to the assessments as and from the commencement of the operation of the agreement on 16 September 2013.": Weber & Lipson [2014] FamCA 390.
Arrears pending setting aside of BCSA: "[44] As previously indicated, the Agency’s acceptance of the agreement in question and its interpretation of the periodic payment clause have resulted in the husband accumulating a liability for a considerable amount of arrears. These arrears have continued to accumulate, given that he has been paying child support based on the provisional notional assessment. ... UNTIL FURTHER OR OTHER ORDER (3)The operation of the child support agreement made between the parties on 9 December 2008 be stayed and an injunction issue and the Registrar of the Child Support Agency be restrained from collecting all arrears and late payment fees of child support pursuant to the aforesaid agreement which has been registered with the Agency for collection.": Jeffrey and Yali [2009] FMCAFam 442.
Mathematical oversight in Consent Orders
"[12] In his affidavit evidence the father does not dispute that he had legal advice but does assert that the consequences of the orders were not properly explained. I conclude that none of the evidence going to the circumstances of the applicant father’s signing of the consent orders give rise to any concerns in my mind about whether he knew what he was doing or gives rise per se to the grounds of relief under s 136(2)(d) or otherwise. The evidence simply goes nowhere towards establishing undue influence, duress, unconscionability or anything of that nature. The real concern of the applicant father is what happened after the consent orders were made. [13] It seems quite clear that on 13 October 2003, notwithstanding the consent order, the mother lodged an application for administrative assessment of child support. The father was assessed at $21.67 per calendar month for the period October 2003 to July 2006. During this period the father remarried, lived in (country omitted) and then returned to Sydney. He worked for the periods when he was in Australia and, doing the best I can on his evidence, appears to have lived off his share of the property settlement when he was living in (country omitted). He accumulated some child support arrears in this period. In September 2006, he was assessed at $151.25 per calendar month. [14] On 20 December 2007, the mother registered the consent order with the Child Support Agency. The father says that as a result of this arrears of $18,717.50 were thereby created, in effect backdated to 13 October 2003. The applicant father is not saying, as I understand it, that he has not been credited for the period when he paid in accordance with the assessments. His complaint is that the effect of registration of the consent orders was that at the time when he was actually on top of his liability, indeed slightly ahead of it, a debit of $18,717.50 was entered into his account and, moreover, ever since then he has not been able to pay child support at $434.83 per calendar month in accordance with the consent order. [15] I record here a curious and possibly important gap in the evidence. Neither party adduced evidence to explain why when the maintenance liability was registered on 20 December 2007 the full amount of arrears was accepted rather than the nine-month period referred to in reg 28A of the Child Support (Registration and Collection) Regulations. It is possible — and I can only surmise this — that the Registrar at the time was satisfied that there were exceptional circumstances at the time. In this regard, I do not know, and after considering all the evidence, I must say I am not sure it makes a difference. [16] In any event, from the applicant father’s perspective, he says that the exceptional circumstances that led to hardship for him was being suddenly foisted with the child support liability arising under the consent order made 17 September 2003 as a result of its registration over four years later. [17] I observe at this stage, however, that the late registration only creates hardship if, having regard to his financial circumstances at all relevant times between 17 September 2003 and today, the original maintenance liability was not just and equitable under the circumstances. Hardship might be established, for example, if his financial circumstances at the time of making the order on 17 September 2003 significantly changed. Hence, the onus of proof was at all times on the applicant father to demonstrate the changes to his financial circumstances since 17 September 2003. [18] The respondent mother’s case is relatively simple. She asks that the applicant father’s application be dismissed. She says that the children, especially X, have special needs which have not changed. She explains the delay in registering the consent order as a registered maintenance liability by reference to advice she got from the Child Support Agency. She acknowledges that the applicant father was not in fact paying $100 per week as from the date of the order, but she says he was paying private health insurance, so she was not motivated to do anything. He then went to live in (country omitted). She challenges the evidence the applicant father gives about his financial circumstances at all relevant times. ... [33] In any event, it was incumbent on the applicant father to properly disclose his financial circumstances to the court and he has failed to do so.": Xu and Loun [2009] FMCAFam 1522.
Lump Sum Payments
"Where an agreement includes non-periodic provisions, subsection 84(6) of the Assessment Act states that the statement referred to in subparagraph 84(1)(d)(ii) must specify either: that the annual rate of child support payable under the administrative assessment is to be reduced by a specified amount that represents an annual value of the child support payable; or that the annual rate of child support payable under the administrative assessment is to be reduced by 100% or another specified percentage that is less than 100%. The Note to this subsection provides for non-periodic payment provisions to be taken to have effect as if they were a statement made by a court under section 125 in an order made under section 124 of the Assessment Act. Where an agreement provides for lump sum payment provisions, subsection 84(7) of the Assessment Act states that the provisions meet the requirements of the subsection if the agreement is a binding child support agreement; and administrative assessment in relation to the child in respect of whom the agreement is made, is in force immediately before the application for acceptance of the agreement is made; and the amount of the lump sum payment is specified in the agreement and equals or exceeds the annual rate of child support payable for the child under the administrative assessment. Subsection 84(8) of the Assessment Act states that an agreement that includes lump sum payment provisions may also state that the lump sum payment is to be credited against 100%, or another specified percentage that is less than 100%, of the amount payable under the liability. Section 80D of the Assessment Act deals with the termination of a binding child support agreement and states, at subsection 80D(1), that a binding child support agreement may be terminated only by: (a) a provision being included in a new binding child support agreement made by the parties to the previous agreement to the effect that the previous agreement is terminated; or (b) the parties to the previous agreement making a written agreement (a termination agreement): (i) that is binding on the parties in accordance with subsection (2); and (ii) to the effect that the agreement is terminated; or (c) a court order setting aside the previous agreement under section 136. Subsection 80D(2) of the Assessment Act provides that, for the purposes of subparagraph (1)(b)(i), an agreement is binding on the parties only if the agreement is in writing, is signed by the parties to the agreement and contains, in relation to each party, a statement to the effect that the party to whom the statement relates has been provided, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the effect of the agreement on the rights of the party and the advantages and disadvantages, at the time the advice was provided, to the party of making the agreement. The annexure must contain a certificate signed by the person providing the legal advice. The agreement must not have been set aside by a court under section 136 of the Assessment Act. And, after the agreement is signed, the original or a copy must be given to each party.": Huckle and Harl (Child support) [2018] AATA 4895, [18]-[22].
Sufficiency of Legal Advice Jing Zhi Wong
Registrar's decision to implement a financial agreement as BCSA: "The legal representative submits that the agreement is not a binding child support agreement as there was no intention between the parties to enter into a child support agreement. The Tribunal could find no requirement in the legislation or relevant case law requiring that there be a specific and expressed intention that an agreement be a binding child support agreement. The Tribunal had particular regard to the Federal Circuit Court case of Nettleship & Nettleship [2016] FCCA 2947, where the Court, in reviewing whether an agreement met the requirements in section 80C of the Assessment Act, looked to the “form and content” of the agreement in determining whether it complied with paragraphs 80C(2)(a) to (d). Nor was the Tribunal persuaded by the argument that the agreement was within the recitals only and not the operative part of the agreement, having regard to section 1 of the agreement which states that the “recitals to this agreement and schedules are incorporated in and form part of this agreement”. The legal representative further submitted that the agreement does not “conform with” the Assessment Act, in part because it does not refer to the Assessment Act. This is not a requirement set out in section 80C of the Assessment Act and subsection 84(5) of the Assessment Act expressly contemplates that an agreement can be both a binding child support agreement and a financial agreement under the Family Law Act. Finally the legal representative submitted that the required legal advice had not been given, as the legal advice given had been in relation to the Family Law Act. The Tribunal did not consider it appropriate to look behind the legal advice given, nor question the sufficiency of the legal advice provided to the parties about their respective rights and obligations, again having regard to the approach taken in the matter of Nettleship referred to above. The Department’s decision to register the agreement as a binding child support agreement and apply this agreement to the child support assessment from 13 March 2018 is legally correct and is affirmed.": Huckle and Harl (Child support) [2018] AATA 4895, [42]-[45].
Not for Court, in determining whether a contract is a BCSA, to read down its terms in guidance to Registrar:
"My conclusion is that the Agreement is to be accepted, and I will not offer any further direction as to whether or how clause 10 might be approached by the Registrar in giving effect to the Agreement under section 94. I regret that this approach is unhelpful to the Registrar and also to Mr Draper and Ms Holloway in terms of resolving this disagreement but it is necessarily so. I am mindful of the limited role of the Registrar in deciding whether or not to accept a child support agreement as described in Child Support Registrar v AFS19 , and conscious that it is that decision only that is under review. Certainly, it is not for me to take evidence and enquire into the underlying intentions of the parties in entering into the Agreement or to apply the provisions of the Agreement that provide for reading down and severability. I consider that the review function of the Tribunal concludes upon my finding that the Agreement is a binding child support agreement and the subject of an application for its acceptance with the result that it must therefore must be accepted by the Registrar.": Draper and Holloway (Child support) [2022] AATA 1698, [31]-[32].
Scope of BSCA - implication of terms nor permitted
"... [129] In relation to some of these items, Ms Nettleship submitted that Mr Nettleship’s agreement to pay after the signing of the Agreement could be inferred by his willingness to pay for them before the Agreement date. [130] In other words, she argues that Mr Nettleship’s actions in paying for these items prior to the agreement date implied his agreement to paying for them after the Agreement date. [131] Mr Nettleship argues that only those items specified in the Agreement, or to which he specifically agrees as extra-curricular activities, are covered by the Agreement. [132] The purposes of the introduction of Binding Child Support Agreements into the child support system were first to allow parents to opt out of the child support assessment regime, and then to define with certainty expenses for which each would be liable once a Binding Child Support Agreement came into existence. [133] In that sense, the Binding Child Support Agreement constitutes a “line in the sand” whose date of signing defines with precision the obligations of each party after that date. The obligations of the parties before that date are essentially obliterated by the signing of the Binding Child Support Agreement. [134] It seems to me that to allow the contractual concept of implied terms to be applied to Binding Child Support Agreements would be to negate the very reasons for the introduction of those Agreements into the child support system. [135] I have been unable to find any decisions in relation to whether the doctrine of implied terms of a contract applies to Binding Child Support Agreements in the reported cases of Australian courts. [136] For the reasons above, I find that it does not. [137] I therefore find that Mr Nettleship is only liable to contribute to those extracurricular expenses for which he explicitly agrees to pay. [138] That is, he is only liable to pay half of X and Y’s netball expenses, as, insofar as far as I can glean from the list provided by him and his evidence under cross-examination at trial, that is the only extra-curricular expense to which he has agreed to contribute. In addition, he is liable for those expenses only from April 2016, which is the date when he agreed to that expense.": Nettleship & Nettleship [2016] FCCA 2947.
Lacunae in BCSA made it such that one parent need not pay child support - requiring it be set aside for child support assessment and Departure Order to take effect
"Nothing contained in the child support agreement relieved the Child Support Agency of its obligation to make periodic assessments of child support. However, the effect of the agreement was that no matter the quantum of the assessment, the wife would not be obliged to pay child support to the husband because she had agreed to pay half of the school fees. Thus, there was in place an administrative assessment in relation to which a departure order could theoretically be made, albeit any such order would have no practical effect unless the child support agreement was first set aside (or the s 125 statement contained in the agreement was varied).": Jacks & Parker [2011] FamCAFC 34, [226].
Effect of spouse requiring payment of items not provided by BCSA or Financial Agreement, treatment of sums paid for items not contemplated by BCSA or Financial Agreement
Set-off: "[39] The Respondent made it clear to the Applicant well in advance of her paying the $7,500 towards the cost of 2015 tuition for the boys that he did not agree to the boys being enrolled for further tuition in 2015 or being responsible for any of the costs thereof. Nevertheless, knowing that, the Applicant unilaterally went ahead and enrolled them again and charged the cost of $7,500 to a credit card that she was aware the Respondent was, by his contractual arrangement with the bank, obliged to pay. The Respondent had no obligation to pay the cost of the tuition pursuant to the financial agreement and binding child support agreement. However, not being able to avoid paying the bank, the Respondent paid off the credit card liability that included the amount of $7,500. [40] As the Applicant had no right, pursuant to the Deed that governs their financial relationship, to require the Respondent to meet the expense, I am satisfied that her actions amounted in reality to a decision to take a lump sum of $7,500 in advance of her entitlement to receive that amount pursuant to the Deed and that she chose to use it by paying for the tuition she unilaterally enrolled the boys in. [41] I am, therefore, satisfied that the Respondent paid the Applicant the sum of $7,500 in a lump sum and that he was entitled to off-set it against payments he was contractually obligated to pay her thereafter. He chose to off-set it against his obligation to pay her $600 per week until the amount was totally off-set. I consider that his right. [42] The Respondent added to the amount of $7,500 interest of $731.56 and withheld weekly payments totalling $8,231.56. In his letter to the Applicant’s solicitor dated 18 December 2014, the Respondent actually said he would reinstate the $600 weekly payment and make good any missed payments when the tuition was cancelled and the $7,500 refunded. He said that his alternative approach to that would be to reinstate the $600 weekly payment once the $7,500 was covered. His adding of interest in the end was contrary to that assertion. [43] I consider the amount of $7,500 is the amount that was paid to the Applicant in November 2014 in advance of the Respondent’s contractual obligations to pay her that amount and that he has a defence to her application to enforce the payment of that much of the $8,231.56 that he then withheld from his weekly payments to her. Her application is for the enforcement of unpaid arrears of $8,231.56, the amount the Respondent actually did not pay her periodically between the end of November 2014 and the beginning of March 2015. I do not consider he has a defence to the non-payment of $731.56. [44] Accordingly, I am satisfied the Respondent owes the Applicant the sum of $731.56. I will order that he pays her that plus interest pursuant to the Family Law Rules on the sum of $300 from 24 February 2015 and on a further $431.56 from 3 March 2015.": Polik v Polik [2015] FAMCA 299.
[C.C] BCSA and Parenting Plan
One document can constitute both a BCSA and a PP:
> "[10] Importantly, s 84(5) provides that nothing in Pt 6 of the Assessment Act is taken to prevent the same document being both a child support agreement and a “parenting plan”, a “maintenance agreement or financial agreement under the Family Law Act 1975 ”, or “a Part VIIIAB financial agreement”. An agreement under s 90UD of the Family Law Act 1975(Cth) is a Pt VIIIAB financial agreement. ... [37] With respect, the primary judge has incorrectly sought to rely upon the references to general principles of contract and equity in Senior to impute a requirement that the parties not only had to have an intention to enter into a binding agreement (as required by general principles of contract law), but also under step (b) required a common intention to enter into a binding child support agreement (primary judgment at [131] and [134]). In particular, her Honour has failed to recognise that there is no requirement equivalent to the Family Law Act for a child support agreement to express that it is made under a particular provision of the Assessment Act. Indeed, s 84(5) provides that the same document may be both a child support agreement and a financial agreement under the Family Law Act. ... [56] Part 6 does not contemplate that the statutory construct of a child support agreement must be the only consensual arrangement contained in the instrument or document in which it is contained. Indeed, if the document also includes provisions of a kind not referred to in s 84(1)(a)–(g), those provisions do not have effect for the purposes of the Act (s 84(3)), but their operation for other purposes is unaffected by the Assessment Act (s 84(4)). Moreover, s 84(5) provides that nothing in Pt 6 prevents a document from being both a child support agreement and, inter alia, a parenting plan, or a maintenance or financial agreement under the Family Law Act. [57] Hence, importantly for what follows, it can be seen from Pt 6 of the Assessment Act generally that: (a) a BSCA is not only a creature of the statute, it is a statutory creation for a specific purpose with necessary characteristics and its operation, non-variation and termination is closely regulated by the Assessment Act; and (b) the contemplated role of the Registrar is not to conduct inquires, but rather, on the basis of the documents provided to them, to assess whether the agreement has the characteristics identified by Pt 6 of the Assessment Act.": Child Support Registrar v AFS19 [2021] FCAFC 207; (2021) 287 FCR 52.
-> see also, above [C.B] What is a BCSA.
> "[133] As was noted by Counsel for the Second Respondent, s 84(5) of the Assessment Act states that the same document can be both a Child Support Agreement and a parenting plan, a Child Support Agreement and a Maintenance Agreement or Financial Agreement under the Family Law Act or a Child Support Agreement and a Part VIII AB Financial Agreement. Given my finding that the principles of law and equity are applicable to Binding Child Support Agreements, it will be necessary for the parties to have intended that the component of their joint document which relates to child support be a Binding Child Support Agreement under the Assessment Act. [134] In the rare instances that a party seeks to argue before the Registrar and/or the Tribunal that there was no intent by one or both of the parties to enter into a Binding Child Support Agreement under the Assessment Act, then it is incumbent upon the Registrar and/or Tribunal to consider such matter in determining whether the purported agreement is a Binding Child Support Agreement.": Piper & Talbot & Anor [2021] FCCA 511.
> "[4] The parties agree that their agreement is one that contains a financial agreement under s 90C of the Family Law Act 1975, a superannuation agreement under s 90MH of the same Act, a binding child support agreement under s 80C of the Child Support (Assessment) Act 1989 and a parenting plan under Div 4 of Pt VII of the Family Law Act. A copy of the Deed was adduced into evidence before me. [5] The parties apparently also agree that the financial agreement is binding on them having regard to the operation of s 90G(1) of the Family Law Act 1975 (“the Act“), and thus ousts the jurisdiction of the court to make orders pursuant to Pt VIII of the Act as between them.": Polik v Polik [2015] FAMCA 299.
Unconscionability
Not unconscionable to have both BCSA and PP proposed and negotiated at the same time: "[168] The husband gave evidence that, in October/November 2017, he and the wife commenced negotiations to finalise outstanding issues. A binding child support agreement was one of those issues. Another issue related to the parenting plan. The conduct of the wife and her lawyer in seeking to have both the binding child support agreement and the parenting plan finalised at, or about, the same time was not unreasonable. The husband’s own evidence supports this finding — namely that the intention was “to finalise outstanding issues”. The precise complaint of the husband appears to be focused on his contention that the mother’s agreement to the parenting plan was conditional upon the parties entering into a binding child support agreement. But the husband already had the benefit of an interim parenting order. In the oral submissions made by counsel for the wife16 and in the wife’s trial submissions17 the point is well made that there had been interim parenting orders in place since 18 May 2016. This fact is confirmed by reference to the court record. There is no evidence from the husband that the wife was refusing to allow him to see the children in accordance with the interim parenting order. [169] On 20 November 2017, the husband’s parenting application was ended (the order of Cleary J). The husband filed a Notice of Discontinuance in respect of his parenting application. No parenting order was made by the Court. If the husband was not happy with the terms of the third agreement — then he ought not to have signed that document. He could very easily have filed a new parenting application — the rule in Rice & Asplund18 was not an impediment. The husband did not take this approach. The husband went ahead and signed the third agreement. [170] The conduct of the wife (and her lawyer) in seeking to make the parenting plan conditional upon a binding child support agreement was not, in the particular circumstances of this case, unreasonable. It was not conduct that could be described as “unconscionable or other conduct” for the purposes of s 136(2)(b)(ii). The father already had the benefit of an interim parenting order. There is no suggestion that the mother had not been complying with the interim parenting order. There is no merit in the husband’s trial submissions under this heading.": Cao & Trong [2023] FedCFamC1A 40.
[C.D] BCSA and Joint Accounts for children's expenses, Savings Plans for Children, School Fund, etc
See Child Support (Assessment ) Act 1989 (Cth) s 84.
See DSS Guide, [6.1.1] 'What can be in a child support agreement?' / 'Other payments & benefits' <https://guides.dss.gov.au/child-support-guide/6/1/1>: "Periodic amounts to be paid to the other person A child support agreement can provide for periodic amounts (regular amounts payable on a regular basis) to be paid to the other parent or non-parent carer. These may be paid directly to the other parent or non-parent carer, to their bank account, or to a third party acting as the agent of the payee (1.1.P.30), such as a solicitor or trustee. A periodic amount can be adjusted for the costs of living by either the child support inflation factor (1.1.C.130) or the CPI (2.3.2) or another adjustment factor identified by the child support agreement. A provision that requires the payer (1.1.P.40) to make payments to a third party (such as a school) on behalf of the payee is not a provision for a periodic amount to be paid to the other person. A provision of this kind may be a non-periodic provision (see example below). ... Other payments & benefits A child support agreement may include provision for child support to be provided otherwise than in the form of periodic amounts, but not specify how that payment is to reduce the child support payable (CSA Act sections 84(1)(d) and 84(6)) nor specify that it is a lump sum payment that is to be credited against the child support assessment liability (CSA Act section 84(1)(e)). An agreement may also include a provision for child support other than in the form of monetary payment, for example, the provision of goods or services. If a provision in an agreement does not meet the requirements of either a non-periodic payment provision or a lump sum payment provision it may be able to be included in the agreement under this heading (CSA Act 84(1)(f)). If the agreement does specify the provision of goods, services, other payments or benefits then those arrangements will not have any effect on the child support assessment. The goods, services, payments or benefits conferred under the provision of the agreement will be in addition to any administrative assessment. The additional goods, services, payments or benefits cannot be enforced or collected by the Registrar."
?Agreements outside ambit of s 84 - must state that the percentage deduction is 100%: "[39] The plaintiff submitted that this was a mandatory requirement and was not satisfied by the recital in Annex “A” that “in addition to such periodic child support the Payer shall pay the following:” As a result, cl 1.1–1.4 were outside the ambit of the Act and gained their force purely from the contract which had been entered into between the plaintiff and the defendant. [40] The defendant submitted to her Honour that the whole of the agreement, including Annex “A”, was governed by the Act. He submitted that the agreement, which included Annex “A”, was in writing and registered with the CSA. He submitted that the effect of the provision in Annex “A” that the payment of the non-periodic amounts was in addition to the payment of periodic amounts, had the effect of reducing any reduction in those amounts in percentage terms to nil. Since that was the clear effect of the agreement, there was no need for the agreement to be expressed in terms of an actual percentage. In particular there was no need for there to be a statement that the deduction from the periodic payments would be “nil percent”. [41] The same arguments were raised in support of the Notice of Contention when the matter came before this court. There were, however, some additional submissions made by the defendant. [42] The defendant submitted that once the order of the Federal Magistrates Court of 7 November 2008 was implemented, ie the transfer to the plaintiff of the ASG fund, which occurred in either January or April 2009, the agreement came to an end. The defendant submitted that this result followed from the terms of the agreement in that cl 2 provided that the obligation to make payments pursuant to cl 1.1–1.4 was subject to the defendant retaining the ASG cheques. That being so, once the plaintiff received the ASG cheques, the defendant submitted that he was not obliged to make any payments under the agreement other than periodic payments after either January or April 2009. [43] The defendant submitted that the Family Law Act 1975 applied to the arrangement between the parties and because the agreement was not a financial agreement as defined by that Act, it was of no effect. This submission was made in writing but it was not pursued orally in this court. Such a submission was not made to her Honour. In any event, the submission is misconceived. [44] As was set out in the plaintiff’s written submissions in reply, child maintenance orders obtained under the Family Law Act applied to children born before 1 October 1989 (the commencement date of the Act) whose parents separated before that date. Assessment of the amount of child support payable for those children was determined by the provisions of the Family Law Act. For children born after 1 October 1989 or whose parents separated on or after that date, the determination of the level of child support payable was governed by the administrative assessment provisions of the Act. There was no issue but that the children were born after 1989 and the separation took place after that date. Accordingly, the provisions of the Family Law Act do not apply to the agreement. [45] The resolution of whether the agreement constitutes a child support agreement for the purposes of the Act involves a question of statutory construction of s 84(6) of the Act. Clearly the terms of the agreement do not come within the description set out in s 84(6)(a). The issue is whether they come within the description: (b)That the annual rate of child support payable under the administration assessment is to be reduced by 100 percent or another specified percentage that is less than 100 percent. [46] In terms the agreement makes no provision as to the relationship between the periodic payments and the non-periodic payments in percentage terms. Does that mean that there has been a failure to come within the description in s 84(6)(b) because that formula of words, ie an expression set out in percentage terms, was not used. [47] I do not believe that s 84(6) of the Act should be construed so narrowly. In this regard, I accept the submission of the defendant. The clear effect of the agreement was that the non-periodic payments were to be made in addition to the periodic payments. In other words, the percentage deduction from the periodic payments would be nil. Neither side disputed that the agreement has that meaning.": Ellis v Ellis [2012] NSWSC 577.
Australian Scholarship Group Fund: Ellis v Ellis [2012] NSWSC 577.
Contribution to a joint account for held for children's private school associated expenses: "[14] The parties separated at the end of March 2006. They reached an agreement as to the children’s living arrangements, and on 12 May 2006 entered into a Binding Financial Agreement in relation to property division. At the same time, the parties entered into the Child Support Agreement (“the Agreement”) the subject of these proceedings, and registered the Agreement with the Child Support Agency. Each party received legal advice about the Agreement. The Recitals to the Agreement state that the parties had shared residence of the two children. [15] The Agreement provided for the father to contribute, on a weekly basis, $150 per child into a joint account held for the children’s private school associated expenses (including tuition fees, excursion fees, incidental sporting fees, school books, school uniforms and extra-curricular activities), weekly allowances and their general costs of being maintained. The mother was required to contribute on a weekly basis $75 per child for the children’s private school associated expenses and their general costs of being maintained. The Agreement provided for these amounts to be adjusted according to the CPI index for Sydney on 1 July each year. The Agreement provided for a suspension of the payments upon each child completing Year 12, or the happening of a terminating event pursuant to s 12 of the Child Support (Assessment) Act 1989. In addition, the Agreement provided for the father to maintain the family’s medical benefits until 31 December 2006, and to be responsible for paying the private school fees for each child directly to the school until each child completes Year 12.": Jessup v Jessup [2010] FMCAFam 124.
[C.E] Breach of BCSA
Non-payment of periodic child support, private school fees, as agreed in BCSA - interim property order: Porter & Porter And Ors (No. 2) [2020] FAMCA 554, [3], [15], [275], [324], [381], [391]-[401].
Enforcement, child support and private school fees, BCSA, given 21 days to remedy: Fortnum & Tamplin [2022] FedCFamC1F 39.
[C.F] Setting Aside of BCSA
Hardship, effect on private school for children, replaced by administrative assessment: "[5] The terms of the agreement are set out in an annexure to the father’s affidavit filed 17 June 2020 and in essence provides, at paragraph 3(i), that the agreement shall cease to operate in relation to the children: In the event the Liable Parent’s earning capacity, through no election, decision, conduct or misconduct whether by him or his agent causes his said earning capacity (excluding application of any taxation deduction, rental property or other offsetting losses or expenses), in the opinion of a Court has reduced below $179,000 per annum. ... [13] However, on the evidence before me today, I am satisfied that the basis for the agreement ceasing to have effect, set out in clause 3 of the agreement between the parties, has been satisfied. I propose to set aside the binding child support agreement effective 1 July 2020. The alternate ground urged upon the Court, under s 136(2)(d), does not necessarily need to be determined by the Court in view of the earlier finding. Section 136(2)(d) provides, inter alia, that the parties to a child support agreement may make an application to this Court to set aside the agreement: (d)in the case of a binding child support agreement—I do accept that the global pandemic and its effect on the industry in which the father has always been employed as a professional is an exceptional circumstance within the meaning of the Act. In my view, on the evidence before me, including the financial statement of the father, hardship to him if he is required to maintain payments at the level set out in the agreement if it was in force, was likely. I accept that if, for example, the non-payment of child support meant that these children, who have been used to a private school education [14] I do accept that the global pandemic and its effect on the industry in which the father has always been employed as a professional is an exceptional circumstance within the meaning of the Act. In my view, on the evidence before me, including the financial statement of the father, hardship to him if he is required to maintain payments at the level set out in the agreement if it was in force, was likely. I accept that if, for example, the non-payment of child support meant that these children, who have been used to a private school education, were unable to stay at the private school, that that would be a hardship to them as well, but that is not a basis upon which the father should be required, under the law, to maintain a payment which would cause hardship to him to pay. [15] The end result of this Application and Cross-Application is that the Order of the Court to set aside the binding child support agreement from 1 July 2020 will activate and/or trigger the right of the eligible parent, the mother, to immediately go to the Child Support Agency and seek that the father be administratively assessed. She should, in my view, absent some agreement between her and the father as to a lower amount that they could negotiate, do so immediately. I say the last statement because, as has been the case since 2010, the parties could enter into a new agreement and take themselves out of the child support administrative regime set up by the Act. ... [17] With proper legal advice they may well be able to create a sensible agreement that sets out the capacity to review in some way, but in the absence of an agreement, the mother’s rights, as the eligible parent, to seek an administrative assessment is enlivened. I should say, in conclusion, that the parties have, I think, been very sensible today. I appreciate this has taken a long time to get to me. It is not clear to me that they actually understood how the operation of orders would be. There is a duty under Australian law for each parent to meet the needs of their children equitably. Equitably is not necessarily equally. Equitably raises questions of capacity. It raises questions of the needs of children, including whether parties, as clear here, have at another time pursued private education for their children. It can consider, in various cases, special needs of children. There are many factors that parents know only too well that go to meeting the financial needs of their children who they chose to bring into the world and who their responsibility it is to support as best they can to adulthood. My hope is that these two genuinely capable and loving, intelligent and sensitive parents could find a way to ensure that their children’s needs are met as best they can, however, the law does provide a remedy.": Fenrich & Safor [2021] FamCA 194.
Stay operation of BCSA pending hearing to set aside BCSA: Sandmeier & Sandmeier [2015] FamCA 1208.
[C.G] BCSA and Financial Agreement
"[4] The parties agree that their agreement is one that contains a financial agreement under s 90C of the Family Law Act 1975, a superannuation agreement under s 90MH of the same Act, a binding child support agreement under s 80C of the Child Support (Assessment) Act 1989 and a parenting plan under Div 4 of Pt VII of the Family Law Act. A copy of the Deed was adduced into evidence before me. [5] The parties apparently also agree that the financial agreement is binding on them having regard to the operation of s 90G(1) of the Family Law Act 1975 (“the Act“), and thus ousts the jurisdiction of the court to make orders pursuant to Pt VIII of the Act as between them.": Polik v Polik [2015] FamCA 299.
Parties entered into binding financial agreement to inter alia share cost of children's private school fees and for respondent husband to pay all fees from 2013 until each child completed high school (provision) - s 90E FLA - BFA dealing with Child Support: "Section 90E was inserted into the Act by means of the Family Law Amendment Act 2000. The relevant explanatory memorandum reads as follows: “Subsection 90E will provide, in similar terms to existing section 66R in respect of the maintenance of children and section 87A in respect of maintenance of a party, that if a provision in a financial agreement deals with the maintenance of a party or a child or children, it will be void unless the provision specifies the person who is to be maintained and the amount or value of the maintenance to be provided.” Section 66R (previously section 66L), which deals with child maintenance orders and section 87A, which deals with maintenance agreements made in substitution for rights enforceable under the Family Law Act 1975, are in similar terms to section 90E. Both sections were inserted into the Act by the Family Law Amendment Act 1987. The relevant explanatory memorandum indicates that the primary purpose of both section 66R and section 87A “is to enable the income-testing for social security purposes of maintenance received other than by way of periodic sums.” Accordingly, it would seem apparent that the Legislature’s intention, in enacting section 90E, was to require any provision in a financial agreement dealing with maintenance to be amenable to means testing, in a social security context, or otherwise to be void. Essentially, the Legislature requires that any consent order or financial agreement specify which portions of any lump sum or property order conferred there under are for either spousal or child maintenance, so that the social security implications of such an order or agreement is apparent. Essentially any lump sum or property order, which purports to be for a maintenance purpose, must be capable of being converted into a cash sum. ... In addition, the intention of the legislature, in its insertion of section 90E into the regime to oversee financial agreements, was to protect the revenue of the Commonwealth, particularly in terms of the provision of social security.": Boyd & Boyd [2012] FMCAFam 439, [70]-[76], [123].
Requirement of Legal Advice in respect of both aspects of a document, but see Court's interpretation of wording of a certificate, specific wording required for BFA but not for BCSA: "[138] For an agreement to be a Binding Child Support Agreement s 80C of the Assessment Act prescribes that: 80CMaking binding child support agreements (1)An agreement is a binding child support agreement if: (a)the agreement is binding on the parties to the agreement in accordance with subsection (2); and (b)the agreement complies with subsection 81(2). (2)For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if: (a)the agreement is in writing; and (b)the agreement is signed by the parties to the agreement; and (c)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters: (i)the effect of the agreement on the rights of that party; (ii)the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and (d)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and (e)the agreement has not been terminated under section 80D; and (f)after the agreement is signed, either the original agreement or a copy of the agreement is given to each party. Note For the manner in which the contents of a binding child support agreement may be proved, see section 48 of the Evidence Act 1995. [139] Counsel for the Appellant referred the Court to the Full Court decision in B v B (supra) where in the context of a Financial Agreement made pursuant to the Family Law Act it was held that: [42]The underlying philosophy that has guided the Courts in annunciating that principle seemed to place too many restrictions on the right of parties to arrange their affairs as they saw fit. The compromise reached by the legislature was to permit parties to oust the Court’s jurisdiction to make adjustive orders but only if certain stringent requirements were met. [140] The Court was also referred to the decision of Federal Magistrate Scarlett as he then was in Garra-Marsh v Garra-Marsh No 3 [2012] FMCAfam 1144 . Having considered the provisions of the Assessment Act in relation to Binding Child Support Agreements, His Honour held at paragraph [49] as follows: [49]It seems clear that, considering whether or not the agreement between the parties is a Binding Child Support Agreement, the Court should apply the reasoning in Black v Black and require that there should be strict compliance with the statutory requirements. [141] It is therefore submitted on behalf of the Appellant that Binding Child Support Agreements require statements that the parties have received certain advice about what a Binding Child Support Agreement is and the advantages and disadvantages of entering into a Binding Child Support Agreement and that there be certification of such advice. [142] The Appellant submits that in this matter a reading of the agreement clearly show the Certificates of Legal Advice and Statements of Legal Advice do not on their face show that the parties were given advice as to the effect of the agreement and the advantages and disadvantages of the agreement as if it were a Binding Child Support Agreement. Rather they clearly state that the advice was given only in relation to s 90UD of the Family Law Act. This is because it says in bold at the top of every page including the page containing the Certificates of Legal Advice “Section 90UD Financial Agreement”. Recital A and Clause 13 of the agreement expressly state it to be an agreement made pursuant to the Family Law Act and more particularly pursuant to s 90UD of the Family Law Act. The agreement is headed on every page “Section 90UD Financial Agreement”. [143] Whilst agreeing that the Tribunal is correct when it states in paragraph [43] of its decision that there is no requirement in s 80C and subsection 84(5) of the Assessment Act that the agreement expressly state that it is made pursuant to the Assessment Act, by having the agreement and the certificates expressly made pursuant to s 90UD of the Family Law Act, the Statements and Certificates of Legal Advice expressly exclude compliance with s 80C in that they do not give advice about a Binding Child Support Agreement. [144] If the Court accepts strict compliance with the Assessment Act is required of the parties when entering into a Binding Child Support Agreement it is submitted on behalf of the Appellant it was not open to the Tribunal to infer from the Statement of Legal Advice and/or certificates that such advice was given in relation to child support when no such reference existed in either of the certificates or in the agreement as a whole. [145] It is therefore submitted that as ss 80CC(2)(c) and 80CC(2)(d) have not been complied with, the document cannot be a Binding Child Support Agreement and the Tribunal erred in concluding that the Certificates of Legal Advice complied with the requirements of the Assessment Act. ... [153] Where the jurisdiction of the Court is to be ousted as is the situation in relation to a Financial Agreement or a party’s recourse to a legislatively determined formula to the assessment of child support and/or capacity to have variations on that assessment determined by recourse to the legislation is to be ousted, the Parliament clearly set out the requirement in both the Family Law Act and the Assessment Act that parties obtain independent legal advice before entering into any agreement that has that effect. [154] For these reasons, I reject the submissions of the Second Respondent that the Registrar (or the Tribunal on review) when presented with an apparently conforming statement and certificate utilising the language of s 80C(2) of the Assessment Act is not required to have reference to the agreement to which the statements and certificates refer in order to satisfy itself that the parties have received advice that specifically related to the impact on them of entering into a Binding Child Support Agreement. [155] In this matter the Appellant attempted to argue before the Tribunal that the parties were only given advice in relation to their rights and the advantages and disadvantages of the agreement as it related to the Family Law Act and not as they related to child support (see paragraph [26] of the Reasons for Decision, as set out in paragraph [26] of this judgment). [156] In paragraph [30] of its decision, the Tribunal set out the precise wording of the Statements of Legal Advice signed by the parties. The Tribunal made no reference to the heading of the document at the top of the page containing the Statements of Legal Advice which read “Section 90UD Financial Agreement”. Having noted that the statements accorded with the wording of ss 80C(2)(c)(i) and 80C(2)(c)(ii) they found that the requirements as set out in s 80C(2)(c) of the Assessment Act were met. [157] In paragraph [33] of its decision the Tribunal noted that the annexure signed by each of the parties’ legal advisors contained in the agreement met the requirement of s 80C(2)(d). [158] In paragraph [44] of their reasons the Tribunal acknowledges that the Appellant’s legal representatives submitted that the required legal advice under the Assessment Act had not been given as the legal advice given had been in relation to the Family Law Act only. The reasons state “the Tribunal did not consider it appropriate to look behind the legal advice given, nor question the sufficiency of the legal advice provided to the parties about their respective rights and obligations, again having regard to the approach taken in the matter of Nettleship (supra) referred to above.” [159] The Tribunal was of the view that the decision in Nettleship (supra) stands for the principle that the question of whether an agreement is a Binding Child Support Agreement under the Assessment Act is determined by looking at the “form and content” of the agreement. My finding that Nettleship (supra)does not stand for that proposition is set out in paragraphs [113–119] of this Judgment. [160] A certificate or Statement of Independent Legal Advice in the context of a Binding Financial Agreement was considered by the Full Court in the matter of Hoult v Hoult [2013] FamCAFC 109 . [161] Justice Thackary at paragraph [96] of Hoult (supra) held that the certificate when read with Recital N (my emphasis) should have been treated as prima facie evidence of compliance with the legal advice component of s 90G(1). [162] Again in paragraph [98] his Honour held the inference properly to be drawn from the certificate read with the Recital (my emphasis) is that the advice required by s 90G had been given, even though there was no evidence of the content of that advice. [163] The Full Court in the matter of Logan v Logan [2013] FamCAFC 151 were, deciding whether a Binding Financial Agreement should be set aside on the basis that a party had not received the requisite legal advice. Their Honours cited with approval the Full Court decision in Hoult (supra). In paragraph [49] their Honours held that in relation to Hoult (supra): Their Honours were ad idem that the certificate given by the solicitor must be treated at least as prima facie evidence of compliance with the requirement to provide legal advice. Further, that is bolstered by the presence in a financial agreement of recitals such as appeared in the agreement in this case, namely in recitals O, P, Q and R, which in effect confirmed that the requisite legal advice was given. [164] Their Honours then said in paragraph [50]: Applying the principles emanating from Hoult, what the reliance by the husband on the certificate, and the recitals, does is satisfy the initial onus on the husband (that the requisite legal advice has been given). [165] In circumstances where I have found that the principles of law and equity apply to Binding Child Support Agreements and that the manner in which an agreement is accepted as a Binding Child Support Agreement is more than an administrative process, it was incumbent upon the Tribunal on review to look at the agreement as a whole, including the recitals, to satisfy itself that the legal advice given not only related to the effect of the agreement on the rights of the parties and the advantages and disadvantages of the agreement as a Binding Financial Agreement under Part VIII AB of the Family Law Act, but also related to the effect of the agreement on the parties’ rights and the advantages and disadvantages of the agreement as a Binding Financial Agreement under Part 6 of the Assessment Act as the parties’ rights and the advantages and disadvantages of the agreement are clearly very different depending upon which agreement the advice is being given for. [166] Whilst there is no statutory requirement under the Assessment Act that a Binding Child Support Agreement specifically state that it is made pursuant to Part 6 of the Assessment Act and that a Binding Child Support Agreement can be part of a Financial Agreement, the Tribunal had an obligation when this matter was raised by the Applicant to read the agreement as a whole to determine if on its face the Tribunal could be satisfied the advice given was the effects of the document as both a Financial Agreement under the Family Law Act and a Binding Child Support Agreement under the Assessment Act. [167] As was set out in paragraphs [161] and [163] herein, the Full Court in both Hoult (supra) and Logan v Logan(supra) held that a Certificate is prima facie evidence there has been compliance with the legislative requirements for legal advice under s 90G of the Family Law Act. However in both matters the Court specifically stated that this is bolstered/supported by the presence of recitals that support that conclusion. [168] Recitals A and J of the agreement signed by the parties read as follows: A.This agreement is made under Section 90UD of the Family Law 1975 (Act); … J.The parties desire: (i)to sever their financial relationship and to finalise their financial rights and responsibilities in relation to each other; (ii)to exclude as far as is practicable the property adjustment and maintenance provisions of the Act; and (iii)To take advantage of the provisions of Part VIIIAB of the Act to finalise all financial issues arising from their de facto relationship [169] Recital G sets out in full details the manner in which the parties had agreed to divide their assets, financial resources and liabilities. [170] Paragraph 1 of the body of the agreement incorporates the recitals and schedules in the agreement into the body of the agreement. Despite this, the body of the agreement reiterates and expands on the matters contained in Recital G. [171] In comparison the matters set out in Recital H relating to the care and support of the parties’ son are not again set out or expanded upon in the body of the agreement. [172] The document is clearly labelled “Section 90UD Financial Agreement”. Every page of the document is headed “Section 90UD Financial Agreement” including the pages containing each parties’ statement of legal advice. [173] When the document is read as a whole, and more relevantly when the recitals and the body of the document are read as a whole, I am of the view that there are more than sufficient reasons for the Tribunal to have found that the prima facie inference arising from the Certificates that the requisite legal advice had been given to the document as both a Binding Financial Agreement and a Binding Child Support Agreement had been overturned and that the legal advice given only related to the document as a Financial Agreement under the Family Law Act. [174] For these reasons, ground 2 of the Appeal is upheld.": Piper & Talbot & Anor [2021] FCCA 511.
Financial Agreement as a BCSA - parties intention to expressly and intentionally enter into a BCSA is not relevant: "[28] This manifests a clear legislative intention that the Registrar is not required to consider whether both parties had a specific intention to enter into a binding child support agreement under the Assessment Act in determining whether an agreement meets the statutory test for a binding child support agreement. This would be contrary to the Registrar’s power under s 91 to act on the application by one party alone with no notice to the other party until the agreement is accepted (see s 96), and that the Registrar is “not required to conduct any inquiries or investigations into the matter”. Importantly, these provisions pre-dated the enactment of the 2006 Amendment Act, which did not contain the safeguards concerning independent legal advice, and were not commented on by the Ministerial Taskforce. [29] This can be contrasted with the Family Law Act, where the binding status of a financial agreement for the purposes of that Act only becomes relevant for the purposes of that Act if a party to the agreement seeks to invoke a provision of Pts VIII or VVIIAB which is ousted by a binding financial agreement. A binding financial agreement does not need to be registered for the Court to make orders under s 90KA(c) or 90UN(c) that a binding financial agreement is enforceable (see s 105(2A) of the Family Law Act). [30] Secondly, the Assessment Act essentially creates a binary choice between administrative assessments and child support agreements as to the administrative process for assessing the liability and amount for child support of a liable parent. The introduction of the requirements for independent legal advice for a binding child support agreement, as demonstrated by the legislative history above, was to introduce further protection for parents entering into agreements which meet the description of a child support agreement. It was not intended to create a new legal requirement that both parties must have had the intention specifically to enter into a binding child support agreement. [31] In contrast, a financial agreement made under the Family Law Act, but which is not binding under ss 90G or 90UN, is still a financial agreement within the terms of other sections of the Act (for instance ss 90B or 90C) and may be relevant to the exercise of the Court’s discretion to make certain orders under that Act (see Senior at [96] per May J, citing Woodland at [37]–[39] per Finn, May and O’Reilly JJ). In this sense, the operation of the Family Law Act does not create a binary choice between a binding financial agreement and another form of administrative process for assessing liability for spousal maintenance or interests in property. Rather, s 90G and 90UJ essentially oust the jurisdiction of the Court to make certain types of orders if a financial agreement is binding for the purposes of the Family Law Act. [32] This is to be contrasted with the position of a liable parent under the Assessment Act, who will be liable for child support payments under either an administrative assessment or a child support agreement (subject to a Registrar’s determination under Pt 6A subsequent to an administrative assessment or a court order). The Assessment Act does not empower the Registrar to take into account a child support agreement in making an administrative assessment under Pts 4 and 5 which does not meet the requisite definition of a binding child support agreement or limited child support agreement under Pt 6. Indeed, this would also be contrary to the statutory scheme. Where an agreement does not meet the description of a child support agreement in s 81, it has no legal operation or effect for the purpose of the Assessment Act.": Child Support Registrar v AFS19 [2021] FCAFC 207.
"[6] On 4 November 2009 the parties entered into a document titled “Binding Financial Agreement and Binding Child Support Agreement”. The coversheet included a notation that the Binding Financial Agreement was made pursuant “to Pt VIIIA of the Family Law Act 1975 (as amended)”. [7] Annexures “A” and “B” to the Agreement are certifications by the solicitor for the husband and the solicitor for the wife respectively, that they provided independent legal advice to the parties in accordance with s 90G(1)(b) of the Family Law Act 1975 (Cth) (“the FLA”)and s 80C(2)(c) of the Child Support (Assessment) Act 1989 (Cth) (“the CSA”). Those certifications are in identical terms and read: I, [NAME] of [NAME OF FIRM], of [ADDRESS], Solicitor, hereby certify that in relation to a financial agreement in writing proposed to be entered into between [Mr Walton] and [Ms Anderson] (hereinafter called “the parties”) I advised [NAME OF PARTY] (hereinafter called “my client”) independently of the other party and before the time at which my client sign the agreement, as to the following matters: 1.The effect of the agreement on the rights of my client pursuant to the Family Law Act 1975 (“the Act”). 2.The advantages and disadvantages, at the time, of the making of the agreement.": Anderson & Walton [2016] FamCA 588.
[D] Child Maintenance (Financial)
Div 7 Family Law Act 1975 (Cth). Distinct from Child Support under the CS Act.
Section 66B of the Act provides: Objects (1) The principal object of this Division is to ensure that children receive a proper level of financial support from their parents. (2) Particular objects of this Division include ensuring: (a) that children have their proper needs met from reasonable and adequate shares in the income, earning capacity, property and financial resources of both of their parents; and (b) that parents share equitably in the support of their children.
Relationship with property settlement and spousal maintenance: "In other words, the Court has to ensure that the child maintenance component is expressly set out in the relevant order and differentiated from property orders and spousal maintenance orders. The Court notes that any issues of spousal maintenance were dealt with on a final basis together with the parties’ property settlement in the Orders made in the Family Court on 19 December 2008.": Hooch & Hooch (No 2) [2012] FMCAFam 1233, [92].
Child maintenance order not to be made etc. if application for administrative assessment of child support could be made : s 66E Family Law Act 1975 (Cth).
Standard of Living, Manner in which child is being, and expected to be educated or trained: ss 66H, 66J, 66K Family Law Act 1975 (Cth).
> Schooling decisions: separate statutory provision. See parenting ordes / arrangements.
Respective financial contribution of parents, etc, towards child maintenance: s 66H(b); s 66K Family Law Act 1975 (Cth).
Adult Child maintenance: s 66L(1) FLA:
> "Part VII of the Act deals with applications for adult child maintenance. Section 66L(1) provides: (1) A court must not make a child maintenance order in relation to a child who is 18 or over unless the court is satisfied that the provision of the maintenance is necessary: (a) to enable the child to complete his or her education; or (b) because of a mental or physical disability of the child. The provision of the maintenance must be necessary in this case because of a mental or physical disability. In In the marriage of Tuck M.L. & Tuck, J.M. (1981) FLC 92-021 at 76,227 the majority of the Full Court (Evatt CJ and Murray J) held: “Necessary” in this context means that the maintenance is needed by the child and that it is reasonable to require the parent to contribute, having regard to the parties’ financial circumstances and other relevant factors. In Re: AM (Adult Child Maintenance) (2006) FLC 93-262 at 80,437 Carmody J said that the word “disability”: …refers more to consequences than causes. A disabled person lacks mental power or a physical faculty (or both) and is restricted in the way he or she lives or moves. Once the Court has determined whether an order should be made in accordance with the principles in s 66L, it is necessary to determine what order should be made, having regard to s 66H and s 66J of the Act.": Eccheli & Eccheli [2024] FedCFamC1F 234, [39]-[42].
> Assessment of weekly expenses, university going child, $1,230/week (no allowance for child capacity to earn, disability) (father has new partner, but no legal obligation to support the children of his new partner): Nolan & Nolan (No.2) [2019] FCCA 941, [48] et seq.
Re AM (Adult Child Maintenance) [2006] FamCA 351 <https://jade.io/article/157226>.
Private Schooling:
> Private schooling, wife's choice, no evidence that the wife had no capacity to pay all of the child's private school fees ($9,000); comments of the court on continuity on private schooling: "Given the view we have adopted in relation to other grounds, it is unnecessary to consider this complaint in any detail. We should observe, however, that we doubt it was appropriate to proceed on an assumption that once a child is enrolled in a private school, the child should remain at that school for the balance of his or her education. Undesirable as this may be, it should be recognised that children are often withdrawn from fee paying schools for financial reasons. In any dispute between parents concerning the payment of school fees, it seems to us to be necessary to give some consideration to the possibility that neither parent should be required to pay the fees and that the child should therefore be withdrawn. The wife gave proper notice of her intention to withdraw Z at the end of his primary education on the basis she could afford to pay for only one child to remain at the school (in this instance Y, who had only one year to complete her secondary education). In our view this decision by her required more consideration than a mere finding by the Federal Magistrate that he did not consider she was able to withdraw her consent to the boy attending the school and that she could afford to pay the fees. The wife had reminded his Honour in her submissions of what the Full Court had said about private school fees in Mee and Ferguson (1986) FLC 91-716 at 75,201 namely: Where the non-custodian has agreed to the child attending such a school that person is liable to contribute to the fees involved so long as and to the extent that he or she has a reasonable financial capacity to continue to do so. Where the non-custodian has not agreed to the child attending such a school he or she is not liable to contribute to those expenses unless there are reasons relating to the child’s welfare which dictate attendance at that school rather than at a non-private school. Then the non-custodian, as an aspect of the welfare and maintenance of the child, is required to contribute to the extent that he or she has a reasonable financial capacity to do so. However, the mere fact that the non-custodian can afford to pay the fees, or indeed if he or she is a wealthy person, is not in itself a reason for imposing that liability. Whilst Mee and Ferguson predated the introduction of the child support scheme, the remarks made by the Full Court in that matter nevertheless retain some persuasive value in drawing attention to the fact that it is appropriate for a court to consider whether a parent has a “reasonable financial capacity” to contribute to school fees even in those cases where they had once consented to the child attending a private school.": Jacks v Parker [2011] FamCAFC 34, [229]-[232]. -- no order that husband pay for private school fees.
> Children all attended private school; orders for father to pay all of the private school fees on later application, wife not exercising her current earning capacity - decision not a matter of principle, but parties' willingness to terminate the litigation: "The father paid all of the G School fees for the child J when he attended that school. The father paid all of the G School fees for R and A in 2008 and previous years. The father’s proposal is to pay G School fees for R (2009 is his final year) and for A until both boys complete their secondary education. Given the extensive history of litigation between these parties, there is a strong argument for making financial orders which will, as far as practicable, end the litigation. When considering whether a particular order is just and equitable, those matters set out in s 117(4), (6), (7), (7A), (7B) and (8) of the Child Support (Assessment) Act 1989 (Cth) must be taken into account. ... Taking into account the nature of the duty of a parent to maintain a child and the general effect of making an order on entitlements to income tested pensions, I find that an order in the terms proposed would be otherwise proper. The wife seeks an order for provision of child support otherwise known in the form of periodic amounts. She wishes the husband to pay all school fees and all other education costs and private health insurance premiums. I have already discussed the terms to which the husband consents to an order. It follows from the discussion above that after the husband has fulfilled his responsibilities for paying school fees as he has agreed to and made the periodic payment for child support that I will order the father has no further capacity to make more extensive payments as sought by the wife and having regard to s 124(2)(b) Child Support (Assessment) Act 1989 (Cth) in particular I conclude that it would not be just and equitable to require the husband to make any further payment.": Emmett & Emmett (No 2) [2010] FamCA 57, [399]-[402], [418]-[419].
> Private Schooling during relationship, but only with support from family (schooling in the case appeared non-issue): "A consideration in issue is the question of “the manner in which the child is being, and in which the parents expected the child to be, educated or trained”. The wife has unilaterally enrolled the children in their current schools and is only able to meet her fee commitment from capital or borrowing. When together overseas the parties were able, it appears, to have the children in private schools by reason of employer largess or funds provided from family. They were not able of themselves to fund such fees. It is clear that the preference for periodic support for children is explicitly stated in s 66K(5) of the Family Law Act. In Luckie & Luckie (1989) FLC 92-036 the Full Court said that s 66K(5) makes it clear that the preferable order for the payment of maintenance is for periodic payments and the Court is not to consider other methods of payment unless it has first considered the capacity of a party to make periodic payments. In Bendeich & Bendeich (1993) FLC 92-355 Mushin J explained that: The rationale underlying the general approach of the Court was that the longer a lump sum order operates the greater the chance of change in circumstances necessitating a variation of that order, thereby making the order unjust. The provision of child support by way of lump sum payment is clearly not the preferred method of maintaining children. See the comments by the Full Court in Prpic & Prpic (1995) FLC 92-574 where the Court said: Capitalisation orders may well be appropriate where there are difficulties in enforcement or where it is proper to sever the financial link between the parties however as a general rule, given that payments of child support depend upon circumstances prevailing from time to time which circumstances cannot be predicted with any significant degree of certainty it seems to us that the provision of child support by way of lump sum should not be considered to be a readily available alternative but one that is only exercised when there are circumstances that make it appropriate to do so. Lump sum orders have usually been considered by the Court in two situations: (a) where there are difficulties in enforcement; and (b) where liable parents are asset rich and income poor. The husband’s general conduct in relation to the proceedings has been one of reluctance to disclose and he has failed in his obligation to be full and frank with the Court. Notwithstanding that he has met his obligation under interim orders for periodic support for the children, that was in the context of incomplete financial proceedings that would have facilitated enforcement from property had he defaulted. As discussed, there are no reciprocal child maintenance enforcement arrangements with Country R. On conclusion of property proceedings an expectation that the husband would meet any periodic support obligation must be considered problematic especially where he has not sought any engagement with the children since separation. A lump sum order would free up his income for his new family. In the circumstances, it is appropriate that there be an order for lump sum child maintenance. The children’s reasonable needs have been assessed at about $300.00 per week per child. Otherwise, the wife has the obligation to provide ongoing accommodation for the children such cost not being reflected in the periodic needs of the children set out by the wife. Doing the best on the evidence available the husband should pay by way of child maintenance a contribution of $250.00 per week per child. The child J will be 18 in mid 2018. His future maintenance would total about $8,625.00. For the child K born in 2001 it would total about $15,125.00. For the child L born in 2006 it would total about $91,000.00. For the child M born in 2009 it would total about $99,500.00. The total lump sum periodic liability order would be $214,250.00. That figure representing a present lump sum payment of a future periodic liability should be discounted as the wife will get the benefit of the capital funds immediately on which she can earn interest on deposit whilst making periodic withdrawals. A discount of 20 per cent would see the pro rate reduction of the amounts reduced to a total of about $171,000.00. In all the circumstances, a lump sum future child maintenance obligation of $171,000.00 will be ordered.": Lao & Lao & Anor [2017] FamCA 917, [133]-[148].
> Father objects to the costs associated with private schooling rather than suggesting that the child has not, and will not, benefit educationally [52]; father took on a lesser-paying job as lifestyle choice - private school fees appears to have been awarded -- father significantly more wealthy - 67/33 split: Hooch v Hooch (No 2) [2012] FMCAFam 1233.
> where no evidence of child's inclination towards tertiary studies, no award is made in respect of maintenance up to and including tertiary studies -- too speculative -- only up to secondary education: "While the Court does not doubt that [X] is a bright and intelligent young person, there is as yet insufficient evidence before the Court as to her prospects for, and inclination towards, tertiary study. Similarly, there is a dearth of evidence as to [X]’s likely employment arrangements, part-time or otherwise, and consequent earning capacity during any such period of study. The absence of reliable evidence regarding these considerations renders altogether too speculative any view that the Court might otherwise form at this time about [X]’s need for support during hypothetical tertiary education. Hence, the Court is unlikely, at this time, to make an order for child maintenance extending much beyond [X]’s 18th birthday. This would not, however, preclude the mother (or, indeed, [X], when she attains majority) from applying to the Court at a later date for orders respecting adult child maintenance during the period that she pursues tertiary education. For this reason, the Court finds it difficult to accept the lump sum figure of $260,000.00 calculated by the mother in paragraph 4 of the orders she seeks. The composition of the figure is unexplained and was not touched upon in submissions, but the Court infers that this sum purports to include maintenance payable until some arbitrary date when it is assumed that [X] will conclude her hypothetical tertiary education. Clearly, the Court cannot accept this amount proffered by the mother. That said, the Court is of the view that, should child maintenance be ordered, it should be stated to extend to the end of 2015 to enable the child to finish her final year of secondary education. Such an outcome would, generally speaking, reflect the operation of s.151B of the CSAA had an administrative assessment applied.": Hooch v Hooch (No 2) [2012] FMCAFam 1233, [98]-[100].
> Agreement between parties that children would attend private schools, but at that time, the husband's employer paid for the private school fees: "For those reasons, I do consider that there is a just cause for reviewing the orders that were made and the provision for the children's maintenance. The father submits that there is just cause for discharging the original order insofar as it gave rise to the registered maintenance liability. Indeed, the father argues that if the order is discharged then it is functus officio and that the Court cannot create a new maintenance liability. He argues that the Court should not approach the matter by attempting to vary the order, because it is difficult "if not impossible for this Court to sensibly vary the order without effectively rewriting it and such a rewriting would be more in the nature of a work of imaginative fiction than an evidence-based analysis and reconstruction of the order in terms that might be susceptible to variation". I don't agree with that submission because I am asked to assess what contribution the father should have made to the maintenance of the children in a defined period, namely, between 21 April 2006 and the issue of the children support assessment (which I assume has occurred). The starting point for the consideration of variation of orders is s.66B which sets out the objects of the division and in particular: a) that children have their proper needs met from a reasonable and adequate share in the income-earning capacity, property and financial resources of both their parents, and b) the parents share equitably in the support of their children. Section 66H sets out the approach to be taken in proceedings for child maintenance orders (see also Mee and Ferguson1986 FLC 91-716). In assessing the financial support necessary for the maintenance of two children, I need to consider their proper needs having regard to the matter contained in s.66J(2). ... I also consider that the father has a capacity to provide for the support of the children whilst they have been with their mother. He has been paying with his consent the sum of $566 per week in accordance with the interim orders made in this matter. His statement of financial circumstances did not disclose that he had received a significant Bonus during 2006. I was satisfied that he has been paying his mortgage at a higher rate than he is required under the mortgage. In the circumstances and for those reasons, I assess that he should pay a sum of $600 per week for the time that the children were living with their mother from the date of the registration of the maintenance liability until the date of the registration of the Child support assessment. I have not made an order for any further payment by the father. In particular I have not made an order that the father pay the rent of the mother’s South East Queensland property during periods that the children were not with her. My reason for that is because I consider that the mother should, at least, make that contribution given that the father is to meet all of the other costs of the children.: Klein v Wright [2007] FMCAFam 360, [53]-[59], [76]-[77].
NDIS funding available to R is appropriately characterised as a financial resource to be considered pursuant to s 66J(1)(c) in taking into account his proper needs for the purpose of considering the financial support necessary for his maintenance: Northam v Northam [2019] FCWA 240, [101].
s 66M no duty to support step children -- abuse of process to use spousal maintenance proceedings to obtain such support: "By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children.": Stein v Stein [2000] FamCA 102, [50]; Gruit & Sloan [2019] FamCA 449, [20]. "We consider the opinion we have expressed that an order can only be made under s 66M in the context of an application under s 66N is consistent with these provisions of the Assessment Act. A step-child will then be taken to be a relevant dependent child for the purpose of the Assessment Act only where an actual order for payment of maintenance has been made. It is logical that an actual financial obligation to maintain a step-child should have a possible effect upon the assessment of child support as opposed a general unspecified duty to maintain which may have no actual financial consequences whatsoever. That would be the effect of an order under s 66M only. This is consistent with the stated purpose of amendment of the Assessment Act by the Child Support Legislation Amendment Bill 1998 (Cth) which introduced the provision relating to step-children into that Act. The Explanatory Memorandum to the Bill (at paragraph 5.2) described relevantly the purpose of the amendments as being to: eliminate the requirement for a paying parent to seek a departure from an assessment and enable a legal duty to maintain a step-child to be taken into account for the purposes of the child support formula. For such a legal duty to be taken into account, the extent of that duty must, in our view, be quantified in a monetary amount. Absent such an order, the seeking of an order under s 66M is nothing more than an opportunistic attempt to reduce the amount of child support payable without a matching obligation to pay maintenance for the step-children. It follows then that the seeking of a mere order under s 66M for the purpose of reducing child support payable to another person is a purpose that is collateral to the legislation and ought not be permitted.": Eames v Eames [2018] FamCAFC 204, [73]-[77].
[#] Misc
'Non-Payment of Child Support as Economic Abuse of Women and Children: A Literature Review' (Research Paper, Women's Legal Service Australia, May 2024) <https://www.wlsa.org.au/wp-content/uploads/2024/05/Womens-Legal-Services-Australia-Child-Support-Literature-Review-May-2024.pdf>, archived at <https://web.archive.org/web/20250324063334/https://www.wlsa.org.au/wp-content/uploads/2024/05/Womens-Legal-Services-Australia-Child-Support-Literature-Review-May-2024.pdf>.
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