Ackers and Ducley - [2010] FMCAfam 809

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ACKERS & DUCLEY

[2010] FMCAfam 809

CHILD SUPPORT – Application to set aside child support agreement – declared bankrupt after agreement registered – section 136 Child Support (Assessment Act) 1989 – agreement set aside – departure from administrative assessment of child support.

Child Support (Registration and Collection) Act 1988 (Cth), ss.17, 113, 113A, 116
Child Support (Assessment) Act 1989 (Cth), ss.80C, 80E, 95, 117, 136
Child Support Legislation Amendment (Reform of the Child Support Scheme -- New Formula and Other Measures) Act 2006 (Cth)

Daley & Daley [2009] FMCAfam 398; (2009) 41 Fam LR 351
Gallup & Gallup [2009] FMCAfam 839
Henricksen & Janz (No.3) [2008] FMCAfam 1343
Hides v Hatton (1997) FLC 92-759
In the Marriage of Gyselman (1991) 15 Fam LR 219; (1992) FLC 92-279
Simpson and Hamlin (1984) FLC 91-576

Applicant:

MR ACKERS

Respondent:

MS DUCLEY

File Number:

MLC 6503 of 2008

Judgment of:

Monahan FM

Hearing date:

5 October 2009

Date of Last Submission:

12 May 2010

Delivered at:

Sydney

Delivered on:

30 July 2010

REPRESENTATION

Counsel for the Applicant:

In Person

Solicitors for the Applicant:

In Person

Counsel for the Respondent:

Mr P. Davis

Solicitors for the Respondent:

Lennon Mazzeo

ORDERS

The child support agreement dated 17 August 2004 (“the Child Support Agreement”) is set aside as of 1 February 2005.
Any arrears accrued since 1 February 2005 pursuant to the Child Support Agreement entered be discharged.
Subject to Order 4 herein, from 1 February 2005 MR ACKERS (“the husband”) pay child support to MS DUCLEY (“the wife”) for [X] born [in] 1996, [Y] born [in] 1998 and [Z] born [in] 2001 (“the children”) in accordance with the administrative assessment of child support.
Pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment payable by the husband to the wife as follows:
(a)for the period commencing 1 July 2005 and ending 31 December 2007 the child support payable is set at the annual rate equivalent to $120 per child per week;
(b)for the period commencing 1 January 2008 and ending

31 December 2010 the child support payable is set at the annual rate equivalent to $140 per child per week; and
(c)for the period commencing 1 January 2011 and ending 24 May 2019 the amount in paragraph (b) be adjusted on 1 January each year in line with movements in the weighted average of the national weighted Consumer Price Index.
Any enforcement of the child support to be paid by the husband pursuant to these Orders be stayed for a period of three months from the date of these Orders.
The wife serve the Child Support Registrar with a sealed copy of these orders forthwith.
The parties have liberty to relist the matter in the event there are difficulties in the implementation of these orders by the Child Support Agency.
All extant child support applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ackers and Ducley

Details

AGLC: Ackers and Ducley [2010] FMCAfam 809
Case: [2010] FMCAfam 809
Decision Date: 30 July 2010

CaseChat Overview and Summary

Ackers and Ducley involved a dispute regarding the terms of a child support agreement between the husband and wife. The Family Court of Australia was tasked with determining the validity and enforcement of the agreement, which was originally entered into on 17 August 2004. The wife sought to set aside the agreement and enforce a different child support arrangement. The husband contested the wife's application, arguing that the agreement should remain in place.

The legal issues before the court included whether the child support agreement was fair and reasonable, and whether there had been a substantial change in circumstances warranting a departure from the administrative assessment of child support. The court also had to consider the appropriate rates of child support if the agreement was set aside.

The court found that the child support agreement was not fair and reasonable and that there had been a substantial change in circumstances. The original agreement was set aside from 1 February 2005, and the administrative assessment of child support was adopted with certain modifications. The court ordered that child support payments be set at specific rates for different periods and adjusted for inflation. Enforcement of the new child support payments was stayed for three months, and the wife was directed to serve a copy of the orders to the Child Support Registrar. The parties were granted liberty to relist the matter if difficulties arose with implementation by the Child Support Agency. All other extant child support applications were dismissed.

Orders

Orders of the court

The child support agreement dated 17 August 2004 (“the Child Support Agreement”) is set aside as of 1 February 2005.

Any arrears accrued since 1 February 2005 pursuant to the Child Support Agreement entered be discharged.

Subject to Order 4 herein, from 1 February 2005 MR ACKERS (“the husband”) pay child support to MS DUCLEY (“the wife”) for [X] born [in] 1996, [Y] born [in] 1998 and [Z] born [in] 2001 (“the children”) in accordance with the administrative assessment of child support.

Pursuant to s.117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment payable by the husband to the wife as follows:

(a) for the period commencing 1 July 2005 and ending 31 December 2007 the child support payable is set at the annual rate equivalent to $120 per child per week;

(b) for the period commencing 1 January 2008 and ending

31 December 2010 the child support payable is set at the annual rate equivalent to $140 per child per week; and

(c) for the period commencing 1 January 2011 and ending 24 May 2019 the amount in paragraph (b) be adjusted on 1 January each year in line with movements in the weighted average of the national weighted Consumer Price Index.

Any enforcement of the child support to be paid by the husband pursuant to these Orders be stayed for a period of three months from the date of these Orders.

The wife serve the Child Support Registrar with a sealed copy of these orders forthwith.

The parties have liberty to relist the matter in the event there are difficulties in the implementation of these orders by the Child Support Agency.

All extant child support applications are otherwise dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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