AM & SO

Case [2005] FMCAfam 547


FEDERAL MAGISTRATES COURT OF AUSTRALIA

AM & SO [2005] FMCAfam 547
FAMILY LAW – Property – where parties cohabit for 8 months – asset by asset or global approach discussed – paid legal expenses – child born after separation – post separation parenting contributions – where wife’s income greater than husbands notwithstanding he continues to improve his capital asset position – focussing on income alone leads to an unduly narrow application of s.75(2)(b) – pursuant to s.116(1B) court determines child support applications with property hearing – agreed departure order – application for capitalised child support refused.
Family Law Act 1975, ss.75, 79
Child Support (Assessment) Act 1989

Lightfoot & Hampson (1996) FLC 92-663
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335

In the Marriage of Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC 92-877

Tuck and Tuck (1981) FLC 91-02
McMahon and McMahon (1995) FLC 92-606
Norbis and Norbis (1986) 161 CLR 513
Zyk and Zyk (1995) FLC 92-644
Quinn and Quinn (1979) FLC 90-677
Kerr (EA 99 of 1994) 11 August 1995
Danielan v Danielan [2003] FamCA 473
Brown v Green (1999) 25 Fam LR 483
Harris (1991) FLC 92-698
Neneke (1996) FLC 92-698
Judkins and Santamaria [2003] FamCA 618
Farnell & Farnell (1996) FLC 92-681

Farmer & Bramley (2000) FLC 93-060

Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Parshen v Parshen (1996) FLC 92-720
Ferraro (1993) FLC 92-335
Tomasetti (2000) FLC 93-023
Prpic v Prpic (1995) FLC 92-574

Applicant: AM
Respondent: SO
File Number: PAM315 of 2004
Judgment of: Ryan FM
Hearing dates: 4 & 5 October 2005
Delivered at: Parramatta
Delivered on: 13 October 2005

REPRESENTATION

Counsel for the Applicant: Mr P. Sansom
Solicitors for the Applicant: Harman & Co.
Counsel for the Respondent: Mr N. Macpherson
Solicitors for the Respondent: Adams & Partners

ORDERS

  1. Pursuant to s.116(1B) of the Child Support (Assessment) Act 1989 the applicant wife is granted leave to proceed with her child support departure application filed 8 April 2005, which application shall be heard concurrently with the her property application commenced the same day.

  2. By way of departure order from the administrative assessment of child support payable by SO “the liable parent” in relation to the child PM-O born in 2002 from 1 January 2005 until 31 December 2015, the liable parent shall pay child support at an annual rate of $5,200.

  3. Within three (3) months of the date of these orders the husband pay to the wife the sum of one hundred and fifty thousand dollars ($150,000).

  4. In the event the husband fails to comply with Order (3) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate in Macquarie Fields in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the…

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AM & SO [2005] FMCAfam 547
Case
[2005] FMCAfam 547
Decision Date

CaseChat Overview and Summary

This case involved a child support departure application by the applicant wife against the respondent husband. The wife sought an order for the husband to pay child support at a rate different from that assessed by the administrative agency, the Child Support Agency. Additionally, the wife sought a property settlement order in relation to the former matrimonial home located in Macquarie Fields, New South Wales. The matter was heard in the Federal Magistrates Court.

The primary legal issues that the court had to address included whether the wife had established grounds for a departure from the administrative assessment of child support and, if so, what the appropriate rate of child support should be. The court also had to consider the principles and factors relevant to making a property settlement order, particularly in relation to the former matrimonial home.

The court found that the wife had established sufficient grounds for a departure from the administrative assessment of child support. The wife had presented evidence that demonstrated that the administrative assessment did not adequately reflect the husband's ability to pay child support. Consequently, the court ordered that the husband pay child support at an annual rate of $5,200 from 1 January 2005 until 31 December 2015. The court also made a property settlement order that required the husband to pay the wife $150,000 within three months. If this payment was not made, the former matrimonial home was to be sold by private treaty, with the proceeds divided between the parties. If the home was not sold within the specified timeframe, it was to be sold by public auction. The court further restrained the husband from dealing with his interest in the property until a certain date and imposed conditions on the sale of the property. The court also appointed a Registrar to execute necessary documents in the event of non-compliance by either party.

The final orders included provisions for the payment of child support, the sale of the former matrimonial home, and the division of its proceeds. The court also made orders regarding the return of exhibits, costs, and the appointment of a Registrar to enforce compliance with the orders.

Orders

Orders of the court

1.

Pursuant to s.116(1B) of the Child Support (Assessment) Act 1989 the applicant wife is granted leave to proceed with her child support departure application filed 8 April 2005, which application shall be heard concurrently with the her property application commenced the same day.

2.

By way of departure order from the administrative assessment of child support payable by SO “the liable parent” in relation to the child PM-O born in 2002 from 1 January 2005 until 31 December 2015, the liable parent shall pay child support at an annual rate of $5,200.

3.

Within three (3) months of the date of these orders the husband pay to the wife the sum of one hundred and fifty thousand dollars ($150,000).

4.

In the event the husband fails to comply with Order (3) the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate in Macquarie Fields in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.

5.

Upon the completion of the sale proceeds of the sale be applied as follows:

(a) To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.

(b) Discharge any mortgage secured against the property

(c) Forty four percent to the wife.

(d) Balance then remaining to the husband who shall immediately pay the wife $36,448.

6.

In the event that the matrimonial home has not been sold by or before a date three (3) months from the date Order (4) becomes operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:

(a) The auctioneer shall be a real estate agent;

(b) The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer.

(c) That auction will take place within two months of this order becoming operative.

7.

Each party has the right to bid at the auction.

8.

Subject to Orders (4), (5) and (6) above until 13 October 2007 the husband is restrained from transferring, encumbering, mortgaging, or otherwise dealing with his interest in the Macquarie Fields property.. In the event these orders require the husband to sell the Macquarie Fields property from the husband’s share of its sale proceeds, the husband shall pay an amount calculated by multiplying $100 by the number of weeks between the sale date and 13 October 2007, into an interest bearing account in the parties’ joint names. Other than to pay child support, the husband is restrained from reducing the amount held pursuant to these orders until 13 October 2007.

9.

In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s.106A, a Registrar of the Federal Magistrates Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

10.

All exhibits tendered in these proceedings shall be returned at the expiration of one (1) calendar month unless an appeal is lodged.

11.

The solicitor who issued any subpoena collects that subpoenaed material and returns it to the owner within seven (7) days.

12.

Subject to any applications for costs all outstanding applications are dismissed.

13.

Any costs application must be made within twenty-eight (28) days by arrangement with my Associate.

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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