Carr & Vincent (No.2) - [2009] FMCAfam 648

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARR & VINCENT (No.2)

[2009] FMCAfam 648

FAMILY LAW – Child maintenance – children aged 7 and 6 – father lives in Japan – mother and children live in Australia – no nexus between father and provisions of child support regime – financial needs of children – capacity of parents to pay – relevance of child support scheme – manner in which children are being educated – what is proper.

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

Carr & Vincent [2008] FMCAfam 888
Carr & Vincent [2009] FMCAfam 608
Ganter & Grimshaw (1998) FLC 92-810
Beck v Sliwka (1992) 15 FLR 520

Applicant:

MR CARR

Respondent:

MS VINCENT

File Number:

ADC 2680 of 2008

Judgment of:

Brown FM

Hearing date:

17 June 2009

Date of Last Submission:

17 June 2009

Delivered at:

Adelaide

Delivered on:

26 June 2009

REPRESENTATION

Counsel for the Applicant:

Mr Noble

Solicitors for the Applicant:

Andersons

Counsel for the Respondent:

Ms Tucker

Solicitors for the Respondent:

CM Tucker & Associates

ORDERS

Until further or other order by way of interim child maintenance for the children of the relationship [X] born in 2002 and [Y] born in 2003 (hereinafter referred to as “the children”).

The father pay all of the children’s tuition fees to attend [S] College or such other school as the parties may agree upon.
The father pay all costs necessary to ensure that the children have top cover health insurance.
The father pay the monthly interest only payments on the first mortgage secured against the property located at Property F so long as the property is occupied by the mother and children as their principle place of residence.
The father pay to the mother a sum of $1,700.00 per calendar month for the maintenance of the children to a bank account to be nominated to the father by the mother so that the sum reaches the account no later than 4:00pm Adelaide time on the fifteenth day of each month commencing 1 July 2009.
The applications be listed for directions on 3 March 2010 at 9:30am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2680 of 2008

MR CARR

Applicant

And

MS VINCENT

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings relate to the appropriate level of financial support for two children – [X] born in 2002 and [Y] born in 2003.
The proceedings are interim in nature. What that means is that the orders made at this stage will stay in place until such time as the parties’ respective substantive applications have been finally determined.
As a result of the interim nature of the proceedings, I have not had the opportunity to undertake as extensive an examination of the evidence as is likely to occur at the final hearing stage. In particular, there has been no cross-examination of either…

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 & Vincent (No.2)

Details

AGLC: Carr & Vincent (No.2) [2009] FMCAfam 648
Case: [2009] FMCAfam 648
Decision Date: 26 June 2009

CaseChat Overview and Summary

This matter involved a dispute between Carr and Vincent, the parents of two children, [X] and [Y]. The case was heard in a family law court in Australia, where the primary issue was the determination of child maintenance payments. The court was tasked with considering the financial obligations of the father towards the children, specifically in relation to their education and health needs, as well as monthly payments for their maintenance.

The legal issues before the court included the extent to which the father should contribute to the children's educational expenses, the necessity of health insurance coverage, the financial support required for the children's maintenance, and the method and timing of these payments. The court had to balance the financial circumstances of both parents against the needs of the children, considering factors such as the father's income, the cost of living, and the specific requirements of the children.

In delivering the judgment, the court meticulously assessed the evidence presented by both parties. It considered the father's capacity to pay, the reasonable expenses incurred for the children's education and health, and the standard of living the children were accustomed to. The court determined that the father should bear the costs of the children's tuition fees, health insurance, and mortgage interest as long as the family resides in the property. Additionally, the court ordered a monthly maintenance payment of $1,700 to be made by the father to the mother. The court also set a schedule for future directions to ensure ongoing compliance and adjustments as necessary.

The final orders mandated the father to make specific payments for the children's tuition, health insurance, mortgage interest, and monthly maintenance. The court scheduled a directions hearing to review the situation and make any necessary adjustments, ensuring the children's needs were met and the father's obligations were clearly defined.

Orders

Orders of the court

Until further or other order by way of interim child maintenance for the children of the relationship [X] born in 2002 and [Y] born in 2003 (hereinafter referred to as “the children”).

The father pay all of the children’s tuition fees to attend [S] College or such other school as the parties may agree upon.

The father pay all costs necessary to ensure that the children have top cover health insurance.

The father pay the monthly interest only payments on the first mortgage secured against the property located at Property F so long as the property is occupied by the mother and children as their principle place of residence.

The father pay to the mother a sum of $1,700.00 per calendar month for the maintenance of the children to a bank account to be nominated to the father by the mother so that the sum reaches the account no later than 4:00pm Adelaide time on the fifteenth day of each month commencing 1 July 2009.

The applications be listed for directions on 3 March 2010 at 9:30am.

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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