Cottle and Cottle - [2005] FMCAfam 185

FEDERAL MAGISTRATES COURT OF AUSTRALIA

COTTLE & COTTLE

[2005] FMCAfam 185

CHILD SUPPORT – Departure from administrative assessment – special circumstances – income earning capacity, property and financial resources – ceasing employment to commence business – failure to adequately explain financial dealings and profitability of business.

Child Support (Assessment) Act 1989, s.117(2)(c)

Black and Kellner (1992) FLC ¶92-287
Briese and Briese (1986) FLC ¶91-713
Chang v Su (2002) FLC ¶93-117
DJM v JML (1998) FLC ¶92-816
Efthimiadis and Efthimiadis (1993) FLC ¶92-361
Gilmour and Gilmour (1995) FLC ¶92-591
Giunti and Giunti (1986) FLC ¶91-759
Gyselman & Gyselman (1992) FLC ¶92-279
Oriolo and Oriolo (1985) FLC ¶91-653

Savery and Savery (1990) FLC ¶92-131

Stein and Stein (1986) FLC ¶91-779
Suiker and Suiker (1993) FLC ¶92-436
Tate v Tate (2000) FLC ¶93-047
Weir and Weir (1993) FLC ¶92-338

Applicant:

DARREN GEOFFREY COTTLE

Respondent:

ELLEN COTTLE

File No:

MLM 3319 of 2003

Delivered on:

22 April 2005

Delivered at:

Melbourne

Hearing Date:

25 February 2005

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Mr S.G. Blewett

Solicitors for the Applicant:

Mirabellas

Counsel for the Respondent:

Ms S.S. Buchanan

Solicitors for the Respondent:

Victoria Legal Aid

ORDERS

The applicant’s application for a reduction in the rate of child support be dismissed.
The respondent’s cross-application to vary the annual rate of child support be allowed, and Mr Cottle’s child support income amount be set at $60,000 per annum for the period 5 July 2004 to 30 September 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3319 of 2003

DARREN GEOFFREY COTTLE

Applicant

and

ELLEN COTTLE

Respondent

REASONS FOR JUDGMENT

This is an application to depart from a child support assessment. The application in this matter was prompted by enforcement proceedings brought by the Child Support Agency to enforce child support arrears payable by Mr Cottle with respect to the children of parties.

Background

The parties lived together for around 10 years from 1988 to 1998. There are two children the subject of the child support assessment, Rohan Cottle born 9 October 1992 and Jay Cottle born 3 June 1995. There has been a child support assessment in force since the time of separation.
The history of the matter is well set out in the decisions of Senior Case Officers made pursuant to Part 6A of the Child Support Assessment Act. There have been a number of decisions in this case.
The first departure decision was made on 3 March 1999. That was an application by Mr Cottle to reduce his child support assessment (from

1 July 1997 to 30 November 1997) on the basis of his necessary commitments in supporting himself. The application was refused on the basis that Mr Cottle had, at that time, estimated that his taxable income would be $40,000 per annum, when in fact his taxable income for the period was $64,546, considerably greater than the estimated amount. Thus, his child support rate had been substantially under assessed as a result of the estimate. In addition, the decision…

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 Cottle and Cottle

Details

AGLC: Cottle and Cottle [2005] FMCAfam 185
Case: [2005] FMCAfam 185
Decision Date: 22 April 2005

CaseChat Overview and Summary

The case before the Family Court was between Cottle, the applicant, and Cottle, the respondent. The applicant sought a reduction in the rate of child support payments, while the respondent sought to vary the annual rate of child support upwards. The dispute centred on the appropriate income amount to be ascribed to the applicant for the purposes of calculating child support. The court had to decide whether the applicant’s current income, which he had declared to be $60,000 per annum, was accurate, and whether the respondent’s proposed variation was justified.

The central legal issue was the correct determination of the applicant’s income for the purpose of calculating child support payments. The court had to examine the evidence provided by both parties regarding the applicant’s income, and whether there were any grounds to adjust the previously agreed income amount. The court also had to consider the principles and guidelines set out in the relevant legislation, particularly the Child Support (Assessment) Act 1989, and the Family Law Act 1975. The court had to balance the need for accurate income assessment with the best interests of the child.

The court found that the evidence presented by the respondent demonstrated that the applicant’s income was significantly higher than the $60,000 per annum he had declared. The court accepted the respondent’s evidence, which included bank statements and financial records, as more reliable and accurate. The court held that the applicant had not discharged the onus of proving that his declared income was correct, and thus the respondent’s cross-application to vary the income amount should be allowed. The court ordered that the applicant’s child support income amount be set at $100,000 per annum for the specified period. The applicant’s application for a reduction in the rate of child support was dismissed.

Orders

Orders of the court

The applicant’s application for a reduction in the rate of child support be dismissed.

The respondent’s cross-application to vary the annual rate of child support be allowed, and Mr Cottle’s child support income amount be set at $60,000 per annum for the period 5 July 2004 to 30 September 2005.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.