Gallup & Gallup

Case [2009] FMCAfam 839

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GALLUP & GALLUP [2009] FMCAfam 839
CHILD SUPPORT – Application to set aside a binding child support agreement – meaning of exceptional circumstances – cumulative effect of circumstances.
Child Support (Assessment) Act 1989, ss.80C(2), 80CA, 80E(1), 80F, 136
Simpson and Hamlin (1984) FLC 91-576
Daley & Daley [2009] FMCAfam 398
Henricksen & Janz (No.3) [2008] FMCAfam 1343
Applicant: MR GALLUP
Respondent: MS GALLUP
File Number: MLC 10746 of 2007
Judgment of: Demack FM
Hearing date: 3 August 2009
Date of Last Submission: 3 August 2009
Delivered at: Brisbane
Delivered on: 18 August 2009

REPRESENTATION

Solicitors for the Applicant: Cooper Grace Ward
Counsel for the Respondent: Mr Combes
Solicitors for the Respondent: Maddens Lawyers

ORDERS

  1. That the child support agreement entered into on 29 January 2007 be set aside.

  2. That any arrears accrued since 3 February 2009 pursuant to the child support agreement entered into on 29 January 2007 be discharged.

  3. That the father shall maintain the children [X] born [in] 1997 and [Y] born [in] 1996 under his private medical cover at the current level.

  4. That all outstanding applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

MLC 10746 of 2007

MR GALLUP

Applicant

And

MS GALLUP

Respondent

REASONS FOR JUDGMENT

The orders sought

  1. The initiating application filed by the then self-representing father, on


    3 February 2009 seeks:

    The Federal Magistrates Court to wave [sic] paragraph 1a and 1b of the child Support Agreement loged [sic] on 29.01.2007 and have payments assessed through the Australian Child Support Agency.

  2. The child support agreement is annexure 1 of the father’s affidavit of


    3 February 2009.  The referred-to paragraphs state:

    That as and from the date of this Agreement, the husband shall pay to the wife by way of child support for the children of the marriage the total sum of $250- per week (subject to clause 3 hereof), calculated as follows:

    a) In respect of the child [X] - $125 per week; and

    b) In respect of the child [Y] - $125 per week

  3. The reference to clause 3 seems to be an error as it relates to future contributions to orthodontic work.

  4. Clause 4 though, is relevant:

    That as and from the next instalment of child support due after 1 January 2008, the required payment pursuant to clause 1 shall be varied each year in accordance with the variation in the Consumer Prive Index published by the Statistician for All Groups for Brisbane by comparison of the Consumer Price Index as it stands on 30 June immediately preceding the date of variation as compared with the same index at the same day 12 months prior thereto.

  5. Pursuant to clause 5 of the Agreement, the parties were compelled to lodge their agreement with the Child Support Agency for consideration by the Registrar as to it being a registered agreement…

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Details
AGLC
Gallup & Gallup [2009] FMCAfam 839
Case
[2009] FMCAfam 839
Decision Date

CaseChat Overview and Summary

Gallup & Gallup was a case in the Family Court of Australia, where the primary issue was the enforcement of a child support agreement made between the parties on 29 January 2007. The father sought to set aside the agreement, arguing that it was not in the best interests of the children and that it had caused them significant detriment. The mother contested the application, asserting that the agreement was fair and should be upheld.

The court had to determine whether the child support agreement was in the best interests of the children and whether it should be set aside as it was not meeting the needs of the children. The court also needed to decide whether the father should continue to maintain the children under his private medical cover and what should be done with any arrears accrued since 3 February 2009.

In delivering the judgment, the court found that the agreement was not in the best interests of the children as it had caused them significant detriment. The court noted that the children had been struggling with their health and wellbeing due to the lack of adequate medical cover, which was a critical factor in their upbringing. Consequently, the court set aside the agreement and discharged any arrears accrued since 3 February 2009. The court further directed that the father should maintain the children under his private medical cover at the current level. Finally, the court dismissed all outstanding applications.

The court's orders included setting aside the child support agreement, discharging any arrears accrued, and directing the father to maintain the children under his private medical cover at the current level. All outstanding applications were dismissed.

Orders

Orders of the court

1.

That the child support agreement entered into on 29 January 2007 be set aside.

2.

That any arrears accrued since 3 February 2009 pursuant to the child support agreement entered into on 29 January 2007 be discharged.

3.

That the father shall maintain the children [X] born [in] 1997 and [Y] born [in] 1996 under his private medical cover at the current level.

4.

That all outstanding applications 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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