EBZ20 v ECA20 [2022] FCA 1098

EBZ20 v ECA20 [2022] FCA 1098

The appeal failed because none of the alleged errors was established. The allegation of actual bias was without merit. The primary judge was not required to make the requested factual findings where no error of law by the Tribunal had been shown. It was open to the Tribunal to find that both parents expected the children to attend Trinity Grammar School, and the father’s asserted condition about who would pay the fees did not negate the s 117(2)(b)(ii) ground because it concerned payment rather than the manner of education. Once that departure ground was established, the Tribunal was required to consider whether a departure was just and equitable, including the parents’ earning capacities...

Jurisdiction
Australia
Judgment Date
19 September 2022
Procedural Posture
Administrative Law Appeal Concerning Judicial Review of a Child Support Departure Determination / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia Judgment in Oliver V Oliver [2021] FCCA 965 Dismissing an Appeal From the Administrative Appeals Tribunal
Outcome
Appeal dismissed with costs.
Legal Topics
['child Support Assessment' 'departure Determination' 'administrative Appeals Tribunal Appeal on a Question of Law' 'actual Bias' 'fact Finding Under S 44(7) of the Administrative Appeals Tribunal Act 1975 (cth)' 'earning Capacity' 'just and Equitable Determination']
['administrative Law' 'child Support' 'family Law'] ['child Support Assessment' 'departure Determination' 'administrative Appeals Tribunal Appeal on a Question of Law' 'actual Bias' 'fact Finding Under S 44(7) of the Administrative Appeals Tribunal Act 1975 (cth)' 'earning Capacity' 'just and Equitable Determination']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 1 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Administrative Law Appeal Concerning Judicial Review of a Child Support Departure Determination / Appeal to the Federal Court of Australia From the Federal Circuit Court of Australia Judgment in Oliver V Oliver [2021] FCCA 965 Dismissing an Appeal From the Administrative Appeals Tribunal

Legal Issues

  1. 1 ['Whether the primary judge was affected by actual bias.' 'Whether the primary judge erred by not making findings of fact under s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth).' "Whether a mutual expectation that the children would attend Trinity Grammar School was sufficient to establish the ground for departure in s 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 (Cth) despite the father's asserted condition that the mother pay the fees." 'Whether the Tribunal wrongly made or affirmed a departure determination as an earning capacity decision on grounds not relied upon by the mother.' 'Whether earning capacity under s 117(4)(da) and s 117(7B) of the Child Support (Assessment) Act 1989 (Cth) is relevant only to an application relying on s 117(2)(c)(ib).']

Ratio Decidendi

The appeal failed because none of the alleged errors was established. The allegation of actual bias was without merit. The primary judge was not required to make the requested factual findings where no error of law by the Tribunal had been shown. It was open to the Tribunal to find that both parents expected the children to attend Trinity Grammar School, and the father’s asserted condition about who would pay the fees did not negate the s 117(2)(b)(ii) ground because it concerned payment rather than the manner of education. Once that departure ground was established, the Tribunal was required to consider whether a departure was just and equitable, including the parents’ earning capacities...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['The appeal be dismissed.' "The appellant pay the respondents' costs of the appeal, to be assessed in default of agreement in accordance with the court's Costs Practice Note (GPN-COSTS)."]