FEDERAL CIRCUIT COURT OF AUSTRALIA
| CAPELLA & RAINES & ANOR | [2020] FCCA 984 |
| Catchwords: CHILD SUPPORT – FAMILY LAW – Mother is primary carer – multi jurisdictional dispute – the Court has jurisdiction to vary orders created in the Family Court of City A – USA is a reciprocating jurisdiction – City A orders are a registered overseas maintenance liability – child maintenance order registered in Australia by the mother – father’s circumstances have changed to justify variation – father unable to pay amount fixed by City A orders – mother seeking order for incarceration of father in City A – mother not filing financial statements. |
| Legislation: Family Law Act 1975 (Cth), ss.66J, 66K, 66S, 110 Child Support (Registration and Collection) Act 1989 (Cth), ss.4, 18A, 30(1) |
| Cases cited: ADG & VO [2007] FMCAfam 818 Child Support Registrar & Higgins and Anor [2016] FamCAFC 2 Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 Imago & Imago [2010] FMCAfam 411 Klein & Wright [2007] FMCAfam 360 Newbeld & Newbeld [2007] FMCAfam 465 Pitney & Pitney [2018] FamCA 996 |
| Applicant: | MR CAPELLA |
| Respondent: | MS RAINES |
| Intervener: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 329 of 2020 |
| Judgment of: | Judge McNab |
| Hearing date: | 20 April 2020 |
| Date of Last Submission: | 20 April 2020 |
| Delivered at: | Melbourne |
| Delivered on: | 20 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Devine |
| Solicitor for the Applicant: | MST Lawyers |
| The Respondent in Person: |
| Counsel for the Intervenor: | Mr Bishop |
| Solicitor for the Intervenor: | Mills Oakley |
ORDERS
UPON THE RESPONDENT’S UNDERTAKING given in writing in paragraph 24 of his Affidavit filed 15 April 2020, to withdraw his Application to Modify the Child Maintenance order made on 13 December 2018, such Application being filed on 30 May 2019 in the City A Family Court, and on his undertaking through his Counsel to do so within 7 days of these Orders,
Pursuant to regulation 36 of the Family Law Regulations 1984 (Cth), the order made 13 December 2018 in the Family Court of City A in relation to ongoing child maintenance in the sum of US$1,876 payable by the applicant to the respondent for the child, X, born in 2009 (‘the child’), and registered with the Child Support Agents and Services Australia, reference number …, be discharged as and from 1 January 2019.
For the period 1 January 2019 until 22 February 2019, the child maintenance payable by the applicant to the respondent for the child be set at nil.
For the period 22 February 2019 until 1 June 2019, the child maintenance payable by the applicant to the respondent for the child be set at US$864.
That for the period 1 June 2019 until the child turns 18 years of age, in 2027, the maintenance be set at A$375 per calendar month.
IT IS NOTED that publication of this judgment under the pseudonym Capella & Raines & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 329…
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- Case
- [2020] FCCA 984
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate child maintenance payable by the applicant to the respondent for their child. This involved considering the period from the initial order, through a period of nil payment, and then setting a new monthly maintenance amount until the child turned eighteen.
The court's decision was largely based on an undertaking provided by the respondent to withdraw his application to modify the existing child maintenance order. Pursuant to regulation 36 of the *Family Law Regulations 1984* (Cth), the court discharged the original child maintenance order made on 13 December 2018, effective from 1 January 2019. The court then set the child maintenance payable at nil for the period between 1 January 2019 and 22 February 2019. For the subsequent period from 22 February 2019 to 1 June 2019, the maintenance was set at US$864. Finally, for the period from 1 June 2019 until the child turned eighteen, the maintenance was set at A$375 per calendar month.
Orders
Orders of the court
UPON THE RESPONDENT’S UNDERTAKING given in writing in paragraph 24 of his Affidavit filed 15 April 2020, to withdraw his Application to Modify the Child Maintenance order made on 13 December 2018, such Application being filed on 30 May 2019 in the City A Family Court, and on his undertaking through his Counsel to do so within 7 days of these Orders,
1.
Pursuant to regulation 36 of the Family Law Regulations 1984 (Cth), the order made 13 December 2018 in the Family Court of City A in relation to ongoing child maintenance in the sum of US$1,876 payable by the applicant to the respondent for the child, X, born in 2009 (‘the child’), and registered with the Child Support Agents and Services Australia, reference number …, be discharged as and from 1 January 2019.
2.
For the period 1 January 2019 until 22 February 2019, the child maintenance payable by the applicant to the respondent for the child be set at nil.
3.
For the period 22 February 2019 until 1 June 2019, the child maintenance payable by the applicant to the respondent for the child be set at US$864.
4.
That for the period 1 June 2019 until the child turns 18 years of age, in 2027, the maintenance be set at A$375 per calendar month.
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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