Daley & Daley

Case [2009] FMCAfam 398

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DALEY & DALEY [2009] FMCAfam 398
CHILD SUPPORT – Application to set aside child support agreement made in February 2005 – agreement has “transitioned” to new child support regime and is regarded as a binding child support agreement – whether “exceptional circumstances” exist – absence of independent legal advice – hardship in context of comparison between amount of child support being paid pursuant to agreement and amount which would be paid pursuant to administrative assessment – justice and equity – costs.
Family Law Act 1975, ss.90G, 117
Child Support (Assessment) Act 1989, ss.3, 4(2), 80C, 80E, 80D, 80G, 92(3), 100, 116, 117, 136, 146B

Simpson & Hamlin (1984) FLC 91-576
Sandrk & Sandrk (1991) FLC 92-260
Savery & Savery (1990) FLC 92-131

Whitford & Whitford (1979) FLC 90-612
In the Marriage of Gyselman (1992) FLC 92-279
Taggart & Pelly [2008] FMCAfam 1321
Applicant: MS DALEY
Respondent: MR DALEY
File Number: ADC 2810 of 2008
Judgment of: Brown FM
Hearing dates: 27 October 2008 & 22 April 2009
Date of Last Submission: 22 April 2009
Delivered at: Adelaide
Delivered on: 1 May 2009

REPRESENTATION

Counsel for the Applicant: Ms Dickson then Mr Eid
Solicitors for the Applicant: Legal Services Commission of SA
Counsel for the Respondent: Ms Lewis then Mr Daley in person
Solicitors for the Respondent: Michael W Speck & Co until 5 December 2008

ORDERS

  1. The child support agreement between the parties dated 18 February 2005 which provides the basis for the payment of child support for the parties children [X] born in 1993 and [Y] born in 1995 is set aside as from 27 October 2008 onwards.

  2. As a consequence of order 1 hereof the parties’ liability for child support in respect of the aforesaid children is to be calculated pursuant to the provisions of the Child Support (Assessment) Act 1989 from 27 October 2008 onwards.

  3. The respondent pay the applicant’s costs of these proceedings to be agreed between the parties and failing agreement to be taxed pursuant to the Federal Magistrates’ Court Rules.

  4. All applications be otherwise dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2810 of 2008

MS DALEY

Applicant

And

MR DALEY

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This case concerns a child support agreement and particularly whether sufficiently exceptional circumstances exist to justify it being set aside pursuant to the provisions of section 136 of the Child Support (Assessment) Act 1989.

  2. The parties to the proceedings are Ms Daley “the wife” and Mr Daley “the husband”.  They are the parents of [X] born in 1993 and [Y] born in 1995.

  3. In the early part of 2005, the parties entered into a child support agreement, which dealt with issues to do with the provision of financial support for [X] and [Y]. 

  4. The parties agreed that the husband would pay the wife…

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Details
AGLC
Daley & Daley [2009] FMCAfam 398
Case
[2009] FMCAfam 398
Decision Date

CaseChat Overview and Summary

The case of Daley & Daley was heard in the Family Court of Australia. The primary dispute centred around a child support agreement executed by the parties on 18 February 2005, which pertained to their children, [X] born in 1993 and [Y] born in 1995. The applicant sought to have the agreement set aside from 27 October 2008 onwards, arguing that circumstances had changed significantly since the agreement was made, warranting a re-evaluation of the financial obligations under the Child Support (Assessment) Act 1989.

The legal issues the court needed to address included the enforceability of the child support agreement in light of subsequent changes in the parties' circumstances and whether the agreement remained appropriate under the statutory provisions. The court needed to determine if the changes were substantial enough to warrant setting the agreement aside and to consider the appropriate method for calculating child support moving forward.

The court found that the changes in the parties' circumstances were indeed significant, justifying the setting aside of the agreement from the specified date. The court ruled that from 27 October 2008, the child support should be calculated in accordance with the Child Support (Assessment) Act 1989. The respondent was ordered to pay the applicant's costs of the proceedings, with the amount to be agreed upon by the parties or, if necessary, assessed by the court. All other applications were dismissed.

Orders

Orders of the court

1.

The child support agreement between the parties dated 18 February 2005 which provides the basis for the payment of child support for the parties children [X] born in 1993 and [Y] born in 1995 is set aside as from 27 October 2008 onwards.

2.

As a consequence of order 1 hereof the parties’ liability for child support in respect of the aforesaid children is to be calculated pursuant to the provisions of the Child Support (Assessment) Act 1989 from 27 October 2008 onwards.

3.

The respondent pay the applicant’s costs of these proceedings to be agreed between the parties and failing agreement to be taxed pursuant to the Federal Magistrates’ Court Rules.

4.

All applications be otherwise 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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