Wong on Family Law

Select topics on Family Law in Australia -- Spousal Maintenance, Child Maintenance and Child Support

Work-in-progress, 11 April 2025 (last updated)


[A] Spousal Maintenance

> 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].


[B] Relationship between Property Settlement, Child Support, Child Maintenance and Spousal Maintenance

> "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.

> "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


[B.B] s 66 E Family Law Act 1975


[C] Child Support - Administrative Assessment

> 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. 

> 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."

> 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]. 


[D] Child Maintenance (Financial)

> Schooling decisions: separate statutory provision. See parenting ordes / arrangements. 

> "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. 

> 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]. 


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