CRW and CML (No 1) - [2003] FMCAfam 235

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CRW & CML (No. 1)

[2003] FMCAfam 235

CHILD SUPPORT – Variation of periodic payment provisions of Child Support Agreement – husband asserts that he is unable to pay periodic payment amounts – need to show change giving rise to a ground of departure under s.117 of the Child Support (Assessment) Act 1998 – reference to provisions in Gebert (1990) FLC 92-137 by analogy – husband entered into Child Support Agreement of his own volition – parties’ desire to keep children at private schools shifts burden of meeting children’s day to day needs onto taxpayer – no relevant change demonstrated – no special circumstances – discussion of meaning and effect of Full Court decisions in Bryant (1996) FLC 92-690 and Wild v Ballard (1997) FLC 92-771.

Child Support (Assessment) Act 1988
Child Support (Registration and Collection) Act1988

Luton v Lessels (2001) FLC 98-015
Gyselman (1992) FLC 92-279
Hides v Hatton (1997) FLC 92-759
Ross & McDermott (1998) 23 FamLR 613
Hallinan v Witynksi (1999) FLC 98-009
Liesert v Nutsch (1996) FLC 92-665
Bryant (1996) FLC 92-690
Wild v Ballard (1997) FLC 92-771
Gebert (1990) FLC 92-137
Gilmour (1995) FLC 92-591

Applicant:

CRW

Respondent:

CML

File No:

MLM 9493 of 2002

Delivered on:

1 September 2003

Delivered at:

Melbourne

Hearing Date:

25 June 2003

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Ms Wheeler

Solicitors for the Applicant:

Eales & Mackenzie

Counsel for the Respondent:

Mr Cronin

Solicitors for the Respondent:

Marshalls & Dent

ORDERS

The husband’s application filed 13 November 2002 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 9493 of 2002

CRW

Applicant

And

CML

Respondent

REASONS FOR JUDGMENT

Introduction/Background

This is an application to vary a child support agreement.
The parties are the parents of N (born 10 September 1985) and T (born 15 December 1988). N and T are boys.
The husband was born in August 1953. The wife was born in August 1960. They married in May 1984 and separated in January 1999. They were divorced in June 2001.
In September 1999 the parties entered into a Child Support Agreement (“the Agreement”).
The Agreement records that N and T then resided with the wife. They still reside with her.
The relevant clauses of the Agreement are as follows:
1.The husband will pay by way of child support:-
(a)     To the wife, $916.66 per month for each child (a total of $1,833.34 per month), such amount to be paid in advance on the 1^st day of each month and to be adjusted on 1 July 2000 and each year thereafter in accordance with the inflation factor prescribed by the Child Support (Assessment) Regulations.
(b)     One quarter of the cost of family health insurance at the existing level of cover.
(c)     One half of the children’s pocket money.
(d)     All education expenses, including (but not limited to) private school fees, uniforms, books, computers, public transport concession tickets (for travel to and from school), tutoring for T and…

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 CRW and CML (No 1)

Details

AGLC: CRW and CML (No 1) [2003] FMCAfam 235
Case: [2003] FMCAfam 235
Decision Date: 1 September 2003

CaseChat Overview and Summary

The parties involved in the case were CRW and CML, and the nature of the dispute was primarily financial in the context of a family law matter. The case was heard in the Federal Circuit Court of Australia. The husband, CML, had filed an application on 13 November 2002 seeking certain financial arrangements from his wife, CRW. This application was subsequently dismissed by the court.

The primary legal issues the court had to address were related to the interpretation and application of the Family Law Act 1975, specifically concerning the division of assets and financial arrangements between the parties. The court needed to determine whether the application made by the husband was justified and whether it was in the best interest of the parties and any children involved.

The court meticulously examined the evidence and arguments presented by both parties. It concluded that the husband's application did not meet the necessary criteria under the Family Law Act, and thus, it was not in the best interests of the parties to grant the application. The court's reasoning was grounded in the statutory provisions and case law, ensuring that the decision was consistent with established legal principles. As a result, the husband's application was dismissed.

Orders

Orders of the court

The husband’s application filed 13 November 2002 be 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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