AR and AL - [2004] FMCAfam 597

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AR & AL

[2004] FMCAfam 597

CHILD SUPPORT – Variation of periodic payment provisions of Child Support Agreement – determination of child’s proper needs – special circumstances demonstrated – variation of periodic payment provisions ordered.

MAINTENANCE – Adult child maintenance – child over 18 years – Family Law Act 1975, s.66L – whether husband should pay for adult child’s overseas study program – whether husband should pay HECS liabilities – application for adult child maintenance dismissed.

Family Law Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act1988
Federal Magistrates Court Rules 2001

Luton v Lessels (2001) FLC 98-015
Gyselman (1992) FLC 92-279
Hides v. Hatton (1997) FLC 92-759
Ross & McDermott (1998) 23 FamLR 613
Hallinan v. Witynski (1999) FLC 98-009
Hampson v. Lightfoot (1997) FLC 92-775
Liesert v Nutsch (1996) FLC 92-665
Bryant (1996) FLC 92-690
Wild v Ballard (1997) FLC 92-771
Jones v Dunkel (1959) 101 CLR 928
Gilmour & Miller (2003) FMCAfam 328
Tynan & Tynan (1993) FLC 92-385
Carpenter & Carpenter (1994) FLC 92-583
Cosgrove & Cosgrove (1996) FLC 92-700
Smith; St James; Smith v Wickstein (1996) FLC 92-714

Applicant:

Respondent:

File No:

MLM 7011 of 2002

Delivered on:

29 October 2004

Delivered at:

Melbourne

Hearing dates:

29-30 January 2003, 7 February 2003,
24 March 2003, 15 April 2003

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Self represented

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Ms S. Johns

Solicitors for the Respondent:

TJ Mulvany & Co

ORDERS

The Agreement be varied by deleting paragraph 1 and inserting in its place the following:
a)The husband hereby agrees to pay or cause to be paid to the wife by way of child support the sum of $277.00 per week for the child J, such payments to commence on Monday 11^th November 2002 (being the first Monday after the filing of the wife’s amended application) and be paid into a bank account established by the wife. This payment is to extend beyond J attaining 18 years of age in the event that he commences tertiary studies.
b)The child support payable to the wife pursuant to paragraph (a) above will increase from 11 November each year (commencing 11 November 2003), in accordance with variations in the Consumer Price Index for Melbourne.
The variation referred to in (1) above be deemed to take effect on
1 January 2004.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 7011 of 2002

Applicant

And

Respondent

REASONS FOR JUDGMENT

Introduction

The parties entered into a child support agreement on 4 September 1995 ("the Agreement"). The Agreement deals with the amount of child support that the husband is to pay for the parties' three children — who all live with the wife. Two of the children are now over 18 years of age. The third is still at school.
The wife seeks to increase the child support payable by the husband (pursuant to the Agreement) for…

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 AR and AL

Details

AGLC: AR and AL [2004] FMCAfam 597
Case: [2004] FMCAfam 597
Decision Date: 29 October 2004

CaseChat Overview and Summary

The parties to the case were AR and AL, who were previously married. The dispute centred around the terms of a financial agreement made as part of their divorce proceedings, specifically regarding child support payments for their child, J. The matter was heard in the Family Court of Australia. The central legal issue that the court had to decide was whether the wife's application for an increase in child support payments was justified under the circumstances. The wife argued that the original agreement did not adequately provide for the child's needs, particularly given the husband's increased income and the child's potential to undertake tertiary studies.

The court carefully considered the evidence presented by both parties regarding the child's needs, the husband's capacity to pay, and the original terms of the financial agreement. It found that the original agreement did not sufficiently account for changes in the husband's financial situation and the child's future educational needs. The court concluded that the wife's application for an increased and more flexible child support arrangement was warranted. Consequently, the court varied the agreement to include a higher weekly payment starting from 11 November 2002, with an annual increase based on the Consumer Price Index for Melbourne. The new terms were deemed to take effect from 1 January 2004.

Orders

Orders of the court

The Agreement be varied by deleting paragraph 1 and inserting in its place the following:

a) The husband hereby agrees to pay or cause to be paid to the wife by way of child support the sum of $277.00 per week for the child J, such payments to commence on Monday 11th November 2002 (being the first Monday after the filing of the wife’s amended application) and be paid into a bank account established by the wife. This payment is to extend beyond J attaining 18 years of age in the event that he commences tertiary studies.

b) The child support payable to the wife pursuant to paragraph (a) above will increase from 11 November each year (commencing 11 November 2003), in accordance with variations in the Consumer Price Index for Melbourne.

The variation referred to in (1) above be deemed to take effect on

1 January 2004.

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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