C and S - [2003] FMCAfam 464

FEDERAL MAGISTRATES COURT OF AUSTRALIA

C & S

[2003] FMCAfam 464

CHILD SUPPORT – Application for departure – liable parent primary producer – profit sharing partnership with subsequent wife – whether special circumstances exist – hardship to caring parent – whether just and equitable – relevance of liable parent’s superior capital resources – whether appropriate to make departure order in subsequent years to year of assessment.

Child Support (Assessment) Act 1989, ss.3, 4, 114, 116, 117

Savery and Savery (1990) FLC 92-131
In the Marriage of Gyselman (1992) 15 FLR 219
Dwyer v McGuire (1993) FLC 92-420
Hendy & The Deputy Child Support Registrar and Webb [2001] FamCA 632

Applicant:

V C

Respondent:

J K S

File No:

ADM 1374 of 2003

Delivered on:

31 October 2003

Delivered at:

Darwin

Hearing date:

13 October 2003

Judgment of:

Brown FM

REPRESENTATION

Counsel for the Applicant:

Ms Jeffries

Solicitors for the Applicant:

Mason Westover Homburg

Counsel for the Respondent:

Mr Whittle

Solicitors for the Respondent:

Legal Services Commission of South Australia

ORDERS

That for the period 21 October 2002 to 31 December 2003 the father’s annual child support income be fixed in the sum of $42,000.
That for the period 1 January 2004 to 31 December 2004 the father’s annual child support income be fixed in the sum of $42,000 together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.
That for the period 1 January 2005 to 31 December 2005 the father’s annual child support income be fixed in the same sum as fixed by Order 2 hereof together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.
That for the period 1 January 2006 to 31 December 2006 the father’s annual child support income be fixed in the same sum as fixed by Order 3 hereof together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.
That for the period 1 January 2007 to 31 December 2007 the father’s annual child support income be fixed in the same sum as fixed by Order 4 hereof together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.
That the applications be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADM 1374 of 2003

V C

Applicant

And

J K S

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to child…

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 S [2003] FMCAfam 464
Case: [2003] FMCAfam 464
Decision Date: 31 October 2003

CaseChat Overview and Summary

The case of C and S involved a dispute between the parties regarding child support payments. The father sought a review of the child support assessment, challenging the income level that had been attributed to him for the purposes of calculating his child support liability. The matter was heard in the Family Court of Australia. The father argued that the income figure used in the assessment was incorrect and sought a reduction in the child support amount he was required to pay.

The primary legal issue before the court was whether the income attributed to the father in the child support assessment was accurate and whether it was appropriate to make any adjustments to that income figure. The court had to consider the evidence provided by both parties and determine whether the income assessment was correct or if there were any errors that needed to be rectified. The court also needed to determine the appropriate method for adjusting the child support payments in line with changes in the cost of living.

In delivering the judgment, the court found that the income attributed to the father was indeed incorrect and should be adjusted. The court fixed the father's annual child support income at $42,000 for specific periods, with adjustments for the cost of living based on the Consumer Price Index. The court considered the evidence presented and determined that the income figure used in the original assessment was not reflective of the father's true earnings. The court ordered that the child support payments be adjusted accordingly, with specific amounts fixed for certain periods and provisions made for future adjustments based on the Consumer Price Index. The court dismissed the father's other applications.

Orders

Orders of the court

That for the period 21 October 2002 to 31 December 2003 the father’s annual child support income be fixed in the sum of $42,000.

That for the period 1 January 2004 to 31 December 2004 the father’s annual child support income be fixed in the sum of $42,000 together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.

That for the period 1 January 2005 to 31 December 2005 the father’s annual child support income be fixed in the same sum as fixed by Order 2 hereof together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.

That for the period 1 January 2006 to 31 December 2006 the father’s annual child support income be fixed in the same sum as fixed by Order 3 hereof together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.

That for the period 1 January 2007 to 31 December 2007 the father’s annual child support income be fixed in the same sum as fixed by Order 4 hereof together with any increase or decrease in respect of the cost of living to be determined by application of the percentage increase as fixed by the annual Consumer Prince Index for the March quarter for the previous year at Adelaide.

That the applications be 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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