C and G - [2002] FMCAfam 361

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & G

[2002] FMCAfam 361

CHILD SUPPORT – Income earning capacity – liable parent has funds available from his late mother’s estate – consideration of whether private school education expected – lump sum ordered where child support otherwise unlikely to be paid.

Child Support (Assessment) Act 1989 ss.6A; 6B; 4; 114; 115; 116; 117; 118; 119; 121; 123

Family Law Act 1975 s.94

McGuiness & Cowie (2002) FLC 98-018
Lightfoot & Hampson (1996) FLC 92-663

Ivanovich (1996) FLC 92-689
Dwyer and McGuire (1993) FLC 92-940
Prpic (1995) FLC 92-574
Gyselman (1992) FLC 92-279
Wylde & Ballard (1997) FLC 92-771
Mee & Ferguson (1986) FLC 91-716
DJM v JLM (1998) FLC 92-816
Ross & McDermott (1998) 23 FLR 613

NAAT and NABB v Minister for Immigration (2002) FMCA 136

Applicant:

S B C

Respondent:

M G

File No:

PAM4008 of 2001

Delivered on:

16 December 2002

Delivered at:

Parramatta

Hearing Date:

2 and 4 April 2002 and written submissions

Judgment of:

Ryan FM

REPRESENTATION

Solicitor Advocate for the Applicant:

Mr J Harman

Solicitors for the Applicant:

Harman & Co

Counsel for the Respondent:

Ms T Messner

Solicitors for the Respondent:

Colquhoun & Colquhoun

ORDERS

That the respondent father’s application for a departure of the administrative assessments of child support for the periods 1 January 2002 to 31 December 2002 and 1 January 2003 to 31 December 2003 are dismissed.
That the father pay child support for the child D G-C born 12 December 1990 for the period 1 January 2004 – 31 December 2008 at an annual rate of $7,800.
That the Registrar of the Child Support Agency give effect to the departures from administrative assessment in Order 2 hereof.
Orders 1, 2 and 3 made 29 November 2001 are varied to the extent necessary for the respondent to instruct his solicitors Messrs Colquhoun & Colquhoun to pay the sum of $50,986.60 from the monies currently secured by those orders to the mother’s solicitors Messrs Harman & Co to be held on trust by them in the names of the mother and the father as trustees upon trust to:
(a)Upon notice from the Child Support Agency pay to the Child Support Agency the amounts outstanding (if any) due pursuant to child support assessment(s) for the period 1 December 2001 to 31 December 2002;
(b)Pay to the Child Support Agency on a monthly basis in advance the amount due pursuant to child support assessment(s) created by the Child Support Agency for the period 1 January 2003 to 31 December 2003 (inclusive);
(c)Pay to the Child Support Agency on a monthly basis in advance the amount due pursuant to child support assessments created by the Child Support Agency in accordance with these orders for the period 1 January 2004 to 31 December 2008 (inclusive);
(d)Unless otherwise ordered by a court exercising jurisdiction under the Child Support (Assessment) Act 1989 as at 1 January 2009 disperse any monies then remaining:
(i)Firstly in payment of any outstanding fees to…

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.

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Details

AGLC: C and G [2002] FMCAfam 361
Case: [2002] FMCAfam 361
Decision Date: 16 December 2002

CaseChat Overview and Summary

The case involves a dispute between the father and the mother of a child born on 12 December 1990. The father applied to the court to vary child support assessments made by the Child Support Agency. The Family Court of Australia heard the matter and considered the application.

The legal issues that the court had to determine were whether the father’s application should be granted to vary the child support assessments for specific periods and how the payments should be managed moving forward. The court had to consider the best interests of the child and the statutory framework under which the Child Support Agency operates.

The court found that the father’s application for variation of the administrative assessments for the periods 1 January 2002 to 31 December 2002 and 1 January 2003 to 31 December 2003 should be dismissed. However, the court ordered that the father should pay child support for the child from 1 January 2004 to 31 December 2008 at a specified annual rate. The court also provided detailed instructions on how the payments should be handled, including the allocation of funds held by the court and the disbursement of any remaining funds. Additionally, the court ordered that the solicitor who issued any subpoena must collect the subpoenaed material and return it to the owner within seven days.

The court made several specific orders, including that the Registrar of the Child Support Agency implement the variations in child support payments as outlined, that the father’s solicitors pay a specified sum to the mother’s solicitors to be held in trust, and that the remaining funds be invested in a controlled interest-bearing account. The court also specified that these payments should be credited against the father’s liability for child support and that any outstanding fees to the Child Support Agency should be paid first from the remaining funds. Finally, the court ordered the return of exhibits and the dismissal of all outstanding applications unless an appeal was lodged.

Orders

Orders of the court

That the respondent father’s application for a departure of the administrative assessments of child support for the periods 1 January 2002 to 31 December 2002 and 1 January 2003 to 31 December 2003 are dismissed.

That the father pay child support for the child D G-C born 12 December 1990 for the period 1 January 2004 – 31 December 2008 at an annual rate of $7,800.

That the Registrar of the Child Support Agency give effect to the departures from administrative assessment in Order 2 hereof.

Orders 1, 2 and 3 made 29 November 2001 are varied to the extent necessary for the respondent to instruct his solicitors Messrs Colquhoun & Colquhoun to pay the sum of $50,986.60 from the monies currently secured by those orders to the mother’s solicitors Messrs Harman & Co to be held on trust by them in the names of the mother and the father as trustees upon trust to:

(a) Upon notice from the Child Support Agency pay to the Child Support Agency the amounts outstanding (if any) due pursuant to child support assessment(s) for the period 1 December 2001 to 31 December 2002;

(b) Pay to the Child Support Agency on a monthly basis in advance the amount due pursuant to child support assessment(s) created by the Child Support Agency for the period 1 January 2003 to 31 December 2003 (inclusive);

(c) Pay to the Child Support Agency on a monthly basis in advance the amount due pursuant to child support assessments created by the Child Support Agency in accordance with these orders for the period 1 January 2004 to 31 December 2008 (inclusive);

(d) Unless otherwise ordered by a court exercising jurisdiction under the Child Support (Assessment) Act 1989 as at 1 January 2009 disperse any monies then remaining:

(i) Firstly in payment of any outstanding fees to the Child Support Agency;

(ii) Any balance then remaining to the father.

That the monies secured and paid out pursuant to Order 4 of these orders is to be credited against the respondents father’s liability for child support for the administrative assessments for the following periods:

(a) 1 December 2001 to 31 December 2002;

(b) 1 January 2003 to 31 December 2003 (inclusive); and

That Messrs Harman and Co. shall invest the monies held in trust pursuant to Order 4 in a controlled monies interest bearing account.

Unless an appeal is lodged, upon compliance by the respondent father with Order 4 Orders 1, 2 and 3 made 29 November 2001 are discharged.

That all exhibits tendered in these proceedings be returned at the expiration of one calender month unless an Appeal is lodged.

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

10.

All outstanding applications are 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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