Casley and Casley - [2008] FMCAfam 1371

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CASLEY & CASLEY

[2008] FMCAfam 1371

FAMILY LAW – Property – child support.

Family Law Act 1975 (Cth), s.75(2)
Child Support (Assessment) Act1989 (Cth), ss.116(1)(b), 117

Hickey [2003] FLC 93-143
C v C [2005] FLC 93-220

Applicant:

MR CASLEY

Respondent:

MS CASLEY

File Number:

DGC 1760 OF 2007

Judgment of:

Phipps FM

Hearing dates:

7 & 8 May & 18 June 2008

Date of Last Submission:

18 June 2008

Delivered at:

Dandenong

Delivered on:

17 December 2008

REPRESENTATION

Counsel for the Applicant:

Mr Crozier-Durham

Solicitors for the Applicant:

Peninsula Law

Counsel for the Respondent:

Ms Buchanan

Solicitors for the Respondent:

Victoria Legal Aid

Counsel for the Independent Children’s Lawyer:

Mr Curtain

Solicitors for the Independent Children’s Lawyer:

Taylor Splatt

ORDERS

THAT the husband is declared to have the sole interest in the shareholders loan account in the names of Mr & Ms Casley with [A] Pty. Ltd.
THAT otherwise each party is declared to have no interest in items of property in the possession of the other and superannuation in the name of the other.
THAT there is departure from administrative assessment of child support for [X] born in 1997, [Y] born in 1997 and [Z] born in 2002 payable by the applicant MR CASLEY to the respondent

MS CASLEY;
(a)For all periods up to 17 December 2008 the child support income of the liable parent is varied so that the arrears of child support, after taking into account all amounts paid by the liable parent up to 17 December 2008 is nil;
(b)From 17 December 2008 to 31 December 2009 the child support income of the liable parent is varied to $30,000.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

DGC 1760 OF 2007

MR CASLEY

Applicant

And

MS CASLEY

Respondent

REASONS FOR JUDGMENT

Mr Casley and Ms Casley disagree about property settlement and superannuation split. They disagree on the assessment of the husband’s income for child support.
The specific issues in this case are:
The amount each received from sale of property and bank accounts
The husband’s income for child support assessment
The property issues must be placed in the context of the four step property consideration process.[1] The steps are:
What are the assets and liabilities?
What are the parties’ contributions?
What are the parties’ future needs?
Is the order just and equitable?
[1] Hickey [2003] FLC 93-143. For superannuation C v C [2005] FLC 93-220
Both parties have applied for departure orders in relation to child-support. Counsel for both parties acknowledge that the court has jurisdiction under s.116(1)(b) of the Child Support (Assessment) Act1989 (Cth). Both the husband and wife are parties to the property application before the court and it is in the interests of both parties to consider whether a departure order should be made in the special circumstances of the case.…

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 Casley and Casley

Details

AGLC: Casley and Casley [2008] FMCAfam 1371
Case: [2008] FMCAfam 1371
Decision Date: 17 December 2008

CaseChat Overview and Summary

In the case of Casley and Casley, the parties were a married couple who were in the process of divorcing. The dispute centred around the division of their property and financial assets, including a shareholders loan account with [A] Pty. Ltd., superannuation funds, and child support payments. The Family Court of Australia was tasked with determining the appropriate division of these assets and liabilities between the husband and wife.

The primary legal issues the court had to address were the ownership of the shareholders loan account and superannuation funds, as well as the calculation and payment of child support. Specifically, the court needed to determine the interest each party had in the shareholders loan account, the superannuation funds, and the correct amount of child support that should be paid by the husband to the wife for their three children.

The court ruled that the husband had the sole interest in the shareholders loan account with [A] Pty. Ltd., while each party was declared to have no interest in the other's items of property and superannuation. Regarding child support, the court ordered that the arrears of child support for the three children should be nil as of 17 December 2008, and from 17 December 2008 to 31 December 2009, the husband's child support income was to be varied to $30,000. These decisions were based on the specific financial circumstances of the parties and the statutory provisions governing property division and child support in family law.

Orders

Orders of the court

THAT the husband is declared to have the sole interest in the shareholders loan account in the names of Mr & Ms Casley with [A] Pty. Ltd.

THAT otherwise each party is declared to have no interest in items of property in the possession of the other and superannuation in the name of the other.

THAT there is departure from administrative assessment of child support for [X] born in 1997, [Y] born in 1997 and [Z] born in 2002 payable by the applicant MR CASLEY to the respondent

MS CASLEY;

(a) For all periods up to 17 December 2008 the child support income of the liable parent is varied so that the arrears of child support, after taking into account all amounts paid by the liable parent up to 17 December 2008 is nil;

(b) From 17 December 2008 to 31 December 2009 the child support income of the liable parent is varied to $30,000.

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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