Carr and Vincent (No.2) - [2011] FMCAfam 1308

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARR & VINCENT (No.2)

[2011] FMCAfam 1308

FAMILY LAW – Child maintenance – children aged 9 & 8 – father lives in Kuala Lumpur but works for Japanese [business] – father’s employer incorporated in USA – father paid in US dollars – father’s income not liable to tax either in Japan, Malaysia, the United States or Australia – mother lives in Australia – no nexus between father and the provisions of the Child Support Scheme – children’s financial needs must be assessed pursuant to the provision of the Family Law Act 1975 – assessment of the father’s income given his circumstances as an expatriate – issues arising as a consequence of exchange rate and father’s tax free status – father assert has high costs of spending time with children – change of circumstances since interim orders made – what is proper – father high income earner – father has responsibilities towards second family in Malaysia – yardstick of Child Support Scheme and application of formula to a high income family given statutorily based assessment of costs of supporting children – children attending private school – manner in which children are being educated – application to re-open case and lead fresh evidence – capacity of parents to pay school fees – costs following contravention application.

Family Law Act 1975, ss.66B; 66C; 66E; 66H; 66J; 66K; 117

Beck v Silwak (1992) 15 FLR 520
Carr & Vincent [2009] FMCAfam 608
Carr & Vincent(No.2) [2009] FMCAfam 648
Vincent & Carr [2011] FMCAfam 633
Ganter & Grimshaw (1998) FLC 92-810

Applicant:

MR CARR

Respondent:

MS VINCENT

File Number:

ADC 2680 of 2008

Judgment of:

Brown FM

Hearing dates:

6, 7 & 8 September and 23 November 2011

Date of Last Submission:

23 November 2011

Delivered at:

Adelaide

Delivered on:

1 December 2011

REPRESENTATION

Counsel for the Applicant:

Mr Noble

Solicitors for the Applicant:

Judith Jordan

Counsel for the Respondent:

Mr McQuade

Solicitors for the Respondent:

Catherine Tucker & Associates

UPON NOTING that it is the intention and effect of these orders that the interim orders made in respect of child maintenance on 24 June 2011 are to remain in full force and effect until 31 December 2011 and as a consequence thereof the father remains liable for the payment of the children’s fourth term school fees at [S] College, Adelaide and the payment of a monthly sum of child maintenance to the mother in the sum of $1,700.00 for the remainder of 2011.

ORDERS

The orders made on 24 June 2011 be discharged and have no effect from 31 December 2011 onwards.
The father pay the mother child maintenance for the children of the relationship [X] born [in] 2002 and [Y] born [in] 2003 in a monthly amount of $2,250.00 to be paid in advance to a bank account to be nominated by the father to the mother with the first such payment to be made on the 15^th of January 2012 and on the 15

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 Carr and Vincent (No.2)

Details

AGLC: Carr and Vincent (No.2) [2011] FMCAfam 1308
Case: [2011] FMCAfam 1308
Decision Date: 1 December 2011

CaseChat Overview and Summary

Carr and Vincent (No.2) presented a dispute between the parents of two children, [X] born in 2002 and [Y] born in 2003. The father, Carr, was required to pay child maintenance to the mother, Vincent. The Family Court of Australia was tasked with determining the appropriate amount of child maintenance and other related issues. The court had to consider the existing orders made on 24 June 2011 and their relevance after 31 December 2011, as well as the appropriate amount of maintenance and its annual variation. Additionally, the court addressed the issue of costs related to contravention proceedings and other applications made by the parties.

The legal issues before the court included the discharge of prior orders, the establishment of a new child maintenance amount, the method for annual variation of this amount, and the allocation of costs between the parties. The court had to balance the needs of the children against the financial capabilities of the father and ensure that the child maintenance arrangement was fair and just.

The court determined that the prior orders should be discharged from 31 December 2011, and a new monthly child maintenance amount of $2,250 should be set, to be paid in advance to a bank account nominated by the father. This amount was to be varied annually based on the Consumer Price Index for Adelaide. The court also ordered the mother to pay the father’s costs of the contravention proceedings in the sum of $4,000, to be paid within six months. All other applications were dismissed.

In summary, the court discharged the previous orders, set a new child maintenance amount with an annual variation clause, ordered the mother to pay the father’s costs, and dismissed other applications.

Orders

Orders of the court

The orders made on 24 June 2011 be discharged and have no effect from 31 December 2011 onwards.

The father pay the mother child maintenance for the children of the relationship [X] born [in] 2002 and [Y] born [in] 2003 in a monthly amount of $2,250.00 to be paid in advance to a bank account to be nominated by the father to the mother with the first such payment to be made on the 15th of January 2012 and on the 15th of each month thereafter.

The amount of monthly child maintenance specified in order 2 hereof shall be varied annually by reference to the Consumer Price Index for Adelaide published by the Australian Bureau of Statistics in the December quarter of each year commencing with the December quarter of 2012.

The mother pay the father’s costs of the contravention proceedings determined by the court on 8 September 2011 fixed in the sum of four thousand dollars ($4,000.00) within six (6) months of the date of these orders.

All other extant 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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