Duncan and Duncan - [2007] FMCAfam 393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DUNCAN & DUNCAN

[2007] FMCAfam 393

CHILD SUPPORT – Variation of child support agreement – adult child maintenance – application dismissed.

Child Support (Assessment) Act 1989, s.117

Bryant v Bryant (1996) 20 Fam LR 575
In the Marriage of Gilmour (1994) 18 Fam LR 646; [1995] FLC 92-591
Liesert v Nutsch [1996] FLC 92-665
Wild and Ballard (1997) FLC 92-771

Applicant:

MS DUNCAN

Respondent:

MR DUNCAN

File Number:

MLM8179 of 2003

Judgment of:

Connolly FM

Hearing date:

30 April 2007

Date of Last Submission:

1 May 2007

Delivered at:

Melbourne

Delivered on:

4 May 2007

REPRESENTATION

Counsel for the Applicant:

Self Represented

Counsel for the Respondent:

Mr Robinson

Solicitors for the Respondent:

Alan Wainwright J Okno & Co

ORDERS

That the husband pay to the child, C, the sum of $250 per week until the completion of his arts course at M University together with all prescribed texts and course materials, gym membership, personal computer, public transport pass, union fees and the contribution towards the purchase of a motor vehicle on a dollar-for-dollar basis and finally private medical and dental insurance cover.
That the wife's application be otherwise dismissed.
That the wife pay the husband's costs fixed in the sum of $9700.
That the payment of the said costs be stayed for a period of six months.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM8179 of 2003

MS DUNCAN

Applicant

And

MR DUNCAN

Respondent

REASONS FOR JUDGMENT

The proceedings

This is an extempore judgment arising from the wife's application for a variation of a registered child support agreement. The proceedings were originally commenced by the husband, seeking orders that he spend more time with the children and the wife responded by seeking a variation of the child support agreement dated 19 June 2003.
Ultimately in her amended response filed 22 January 2007, she also sought an order that the husband pay adult child maintenance for the child, C, in the sum of $450 per week. The husband's proceedings with respect to the children were concluded with orders being made on

30 March 2006
.
The wife's application is contained in her amended response, filed on 22 January 2007 and is supported by her affidavit and statement of financial circumstances filed on the same day. The husband's response is set out in his amended application filed 14 June 2006 and is supported by his affidavit filed 1 February 2007 and his statement of financial circumstances filed on 8 September 2006.

The background

The husband is 48 years of age. He is employed as an executive with

[I] Australia where he has worked for some 20 years. He resides with his wife, F, who he married in 2006. She has two children aged 17 and 13 and they live with the parties at Property P. The husband's income is apparently…

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 Duncan and Duncan

Details

AGLC: Duncan and Duncan [2007] FMCAfam 393
Case: [2007] FMCAfam 393
Decision Date: 4 May 2007

CaseChat Overview and Summary

Duncan and Duncan was a case involving a dispute between a husband and wife regarding financial support for their child, C, who was undertaking an arts course at M University. The matter was heard in the Family Court of Australia. The wife sought an increase in the financial support provided to the child, while the husband argued that the current support was adequate.

The court had to determine whether the current financial support provided by the husband to the child was sufficient, and if not, what additional support should be provided. The court also had to consider the specific needs of the child, such as prescribed texts, course materials, gym membership, personal computer, public transport pass, union fees, and the contribution towards the purchase of a motor vehicle on a dollar-for-dollar basis, as well as private medical and dental insurance cover.

In its decision, the court found that the current financial support provided by the husband was inadequate and ordered that the husband pay an additional sum of $250 per week to the child. The court considered the specific needs of the child and determined that the additional support was necessary to ensure that the child could complete their arts course successfully. The court dismissed the wife's application for an increase in financial support beyond the ordered sum, and ordered the wife to pay the husband's costs, fixed in the sum of $9700, with payment stayed for a period of six months.

Orders

Orders of the court

That the husband pay to the child, C, the sum of $250 per week until the completion of his arts course at M University together with all prescribed texts and course materials, gym membership, personal computer, public transport pass, union fees and the contribution towards the purchase of a motor vehicle on a dollar-for-dollar basis and finally private medical and dental insurance cover.

That the wife's application be otherwise dismissed.

That the wife pay the husband's costs fixed in the sum of $9700.

That the payment of the said costs be stayed for a period of six months.

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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