D and B

[2006] FMCAfam 437

FEDERAL MAGISTRATES COURT OF AUSTRALIA

D & B [2006] FMCAfam 437

FAMILY LAW – Application to discharge child maintenance arrears – doctrines of res judicata and Anshun estoppel – just cause – circumstances of the parties – arrears varied – recommendation that penalty be waived if arrears paid within say five years.

Child Support (Assessment) Act 1989
Family Law Act 1975, ss.66B, 66C, 66S, 66W

Cameron & Helie [2004] FMCAfam 685
Kelly & Kelly (1996) FLC 92-680
Lutzke & Lutzke (1979) FLC 90-714
P & D [2003] FMCAfam 461
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Reid & Reid (1978) FLC 90-529
Roche & Glenn (2002) FLC 93-123
Spry & Roet (1977) FLC 90-301
Vakil & Vakil (1997) FLC 92-743
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242

Applicant: RJD

Respondent: CJB (McGEE)

File Number: CAM 1247 of 2004

Judgment of: Mowbray FM

Hearing dates: 18 February, 6 June, 11 July & 9 September 2005

Date of last submission: 23 September 2005

Delivered at: Canberra

Delivered on: 21 August 2006

REPRESENTATION

Counsel for the Applicant: Mr G Howard

Solicitors for the Applicant: Farrar Gesini & Dunn

Counsel for the Respondent: Ms J Godtschalk

Solicitors for the Respondent: Crowley Clifford Simpson

ORDERS

1. The order of 4 July 2006 staying the father’s liability to pay child maintenance or any arrears of child maintenance be discharged.

2. Pursuant to section 66W(2)(b) of the Family Law Act 1975 the father’s obligation to pay maintenance between 1 July 2000 and 30 December 2004 for the children, DJD born 19 January 1984 and JAD born 30 December 1986, be reduced to that for which he would liable if the formula under the Child Support (Assessment) Act 1989 had been applied to the father’s taxable income for the relevant years.

3. I request that the Child Support Registrar give consideration to waiving all late payment penalties owed by the father if the arrears in maintenance debt are paid within say five years.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 1247 of 2004

RJD

Applicant

And

CJB (McGEE)

Respondent

REASONS FOR JUDGMENT

1. The applicant father asks the Court to discharge all of his child maintenance debt or alternatively to reduce the arrears.  At the end of August 2005 he had a child maintenance debt of $8,964.94 and a late payment penalty debt of $4,981.68.  The total outstanding was therefore $13,946.62.  The respondent mother wants the application dismissed.

Background

1. The father was born in June 1955.  He is thus now 51 years of age.  The mother was born in March 1957.  She is now 49 years of age.

2. The parties were married in June 1985 and separated approximately nine months later.  They were divorced in December 1987.

3. There are two children of the marriage, the subject of this application, DJD born in January 1984 aged 22 and JAD born in December 1986 aged 19.

4. The father has two other children, LN born in April 1983 aged 23 and JD…