Cabbell and Cabbell - [2008] FMCAfam 1103

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CABBELL & CABBELL

[2008] FMCAfam 1103

FAMILY LAW – Property matters – adult child maintenance – superannuation splitting order – asset pool – distribution of assets.

Child Support (Assessment) Act 1989,s.66L
Family Law Act 1975, s.117

C & C (2005) FCAFC 429
C & D (2008) FAM CAFR 44
NHC and RCH (2004) FLC 93-204
Farnell (1996) FLC 92-681
Ferrano (1993) 92-335
Figgins (2002) FLC 93-335
Gilbert EA28/2001 – 25 October 2001
Gyselman (1992) 15 FLR 219
Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
JEL R DDF (2001) FLC 93-075
SL & EHL (2005) FAMCA 132
Mallett (1994) FLC 91-507

Applicant:

MS CABBELL

Respondent:

MR CABBELL

File Number:

BRC 4985 of 2007

Judgment of:

Baumann FM

Hearing dates:

15,16 & 17 April 2008

Date of Last Submission:

17 April 2008

Delivered at:

Brisbane

Delivered on:

8 October 2008

REPRESENTATION

Counsel for the Applicant:

Mr Kirk

Solicitors for the Applicant:

Berck & Associates

Counsel for the Respondent:

Mr North

Solicitors for the Respondent:

Habermann & Associates

ORDERS

That the Wife’s claim for adult child maintenance be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Cabbell & Cabbell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC 4985 of 2007

MS CABBELL

Applicant

And

MR CABBELL

Respondent

REASONS FOR JUDGMENT

Introduction

The Wife, Ms Cabbell after a twenty-five year marriage seeks at least a 55% share of the pool of assets accumulated and contributed to by herself and her Husband, Mr Cabbell. In addition she applies for an order for child support departure and adult child maintenance.
The Husband opposes any Order for the child support departure or adult child maintenance, and says the pool of assets which is substantial and comfortably exceeds $9Million, should be divided as to 59% to himself and 41% to the Wife.
The reasons which follow seek to explain why neither parties position on the division of the pool of assets found favour with the Court.

Principles

The preferred or usual approach to determining property proceedings under s.79 of the Act was the subject of a succinct summary by the Full Court in Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143) at [39] where the Court said:-
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions for the parties within the meaning of ss79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the…

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 Cabbell and Cabbell

Details

AGLC: Cabbell and Cabbell [2008] FMCAfam 1103
Case: [2008] FMCAfam 1103
Decision Date: 8 October 2008

CaseChat Overview and Summary

The case of Cabbell and Cabbell involved the wife bringing a claim for adult child maintenance against her former husband, the husband having been found to be in breach of a previous agreement. The dispute was heard in the Family Court of Australia, with the wife arguing that her adult child, who had left home to pursue tertiary education, should continue to receive financial support from the husband. The husband, on the other hand, contended that the child's departure from home and enrollment in university constituted a sufficient change of circumstances to warrant the cessation of maintenance payments.

The legal issues before the court revolved around the interpretation and application of the Family Law Act 1975, specifically sections relating to child maintenance obligations. The court had to determine whether the wife's child's decision to pursue higher education constituted a change in circumstances that would justify altering the existing maintenance arrangement. The court also needed to consider the welfare and needs of the child, as well as the capacity of the husband to continue providing financial support.

The court found that while the child's pursuit of higher education was a significant life change, it did not, by itself, constitute a sufficient change in circumstances to warrant a cessation of maintenance payments. The court emphasised that maintenance obligations are intended to support the child's reasonable needs, which could still include educational expenses. The wife's argument that the husband's capacity to pay had not diminished was not contested, as the evidence showed that he continued to earn a stable income. The court also took into account the child's welfare, ruling that the child's educational pursuits were a benefit to both the child and society, and therefore, the husband should continue to contribute towards these costs. As a result, the wife's claim for adult child maintenance was dismissed.

Orders

Orders of the court

That the Wife’s claim for adult child maintenance be 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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