F and F (No.2)

[2005] FMCAfam 41

FEDERAL MAGISTRATES COURT OF AUSTRALIA

F & F (No.2) [2005] FMCAfam 41

CHILD SUPPORT – Application for departure – children concerned in shared care arrangement – husband engaged in full time employment – wife engaged in tertiary studies and part-time work – application of formula results in nil assessment for wife – whether wife fully utilising her income earning capacity – hardship to husband – whether just and equitable to make departure order.

Child Support (Assessment) Act 1989, ss.3, 4, 114, 116, 117

Savery and Savery (1990) FLC 92-131
In the Marriage of Gyselman (1992) 15 FLR 219
Dwyer v McGuire (1993) FLC 92-420
Hendy & The Deputy Child Support Registrar and Webb [2001] FamCA 632
DJM v JLM (1998) FLC 92-816

Applicant: D R F

Respondent: V M F

File No: DNM 500 of 2004

Delivered on: 14 February 2005

Delivered at: Alice Springs

Hearing date: 7 February 2005

Judgment of: Brown FM

REPRESENTATION

Counsel for the Applicant: Ms H

Solicitors for the Applicant: S & A

Counsel for the Respondent: Ms O

Solicitors for the Respondent: N T L A C

ORDERS

1. That orders one and two of the orders made on 16 December 2004 be discharged.

2. That pursuant to section 117 of the Child Support (Assessment) Act 1989 there be a departure from the administrative assessment of child support.

3. For the period from 1 November 2004 to 31 December 2005 the father’s child support income be fixed at an annual rate of $70,000.00 and the mother’s child support income be fixed an annual rate of $32,000.00 for the same period.

4. That the application be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNM 500 of 2005

D R F

Applicant

And

V M F

Respondent

REASONS FOR JUDGMENT

Introduction

1. These proceedings relate to child support and whether there should be any departure from the child support assessment procedure in respect of three children, namely J D F, who was born on 24 February 1997;

   
   

   J T F, who was born on 18 March 1999; and D J F, who was born on

   
   

   1 November 2001.

2. The applicant in the proceedings is D R F, who is the children’s father.  The respondent in the proceedings is V M F, who is the children’s mother.  For obvious reasons of convenience, I will refer to Mr F as “the father” in these reasons for judgement and to Ms F as “the mother”.

3. The father commenced these proceedings on 1 November 2004.  He seeks the following orders:

   1.   

   That pursuant to section 117 of the Child Support (Assessment) Act 1989, there be a departure from administrative assessment of child support for J D F born

   
   

   24 February 1997, J T F born 18 March 1999 and D J F born 28 April 2001 payable by the father to the mother as follows:

   a) the annual rate of child support be set at $7,500.00 from 17 July 2003 and be adjusted each 17 July thereafter in accordance with any change…