Gillen and Gillen - [2016] FCCA 3004

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILLEN & GILLEN

[2016] FCCA 3004

Catchwords:
FAMILY LAW – Various applications regarding child support – parties entering into consent Court orders and binding financial agreement in 2008 – whether same should be set aside – parties to be held to their bargain – application for adult child maintenance – father substantially under declaring income – order for adult child maintenance made.

Legislation:

Family Law Act 1975, ss.66K(5), 66L

Child Support (Assessment) Act 1989, ss.117, 129, 136(2)(d)

Cases cited:
Balzano & Balzano [2010] FamCAFC 11
Gallup & Gallup [2009] FMCAfam 839

Applicant:

MS GILLEN

Respondent:

MR GILLEN

File Number:

MLC 11757 of 2014

Judgment of:

Judge Burchardt

Hearing date:

4 October 2016

Date of Last Submission:

4 October 2016

Delivered at:

Melbourne

Delivered on:

24 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Mellas

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Mr Hall

Solicitors for the Respondent:

Plaza Legal

ORDERS

That the father pay $100 per week to the mother by way of adult-child maintenance in respect of his child X until such time as she completes her degree in (qualifications omitted) whichever is the later.
The $100 per week is to increase by $10 per week on 17 November 2017 and a further $10 per week on each 17 November thereafter until maintenance ceases pursuant to order 1.
Otherwise, all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11757 of 2014

MS GILLEN

Applicant

And

MR GILLEN

Respondent

REASONS FOR JUDGMENT

Introductory

In this matter, the parties, to their credit, have been able to make parenting orders by their consent. That, however, has by no means resolved all the controversies between them. Put shortly, the applicant mother seeks a raft of orders all designed to produce an outcome whereby the father pays a lot more to her by way of child support, whether in terms of arrears or prospective payments. The father bitterly opposes all the orders that the mother seeks, although he has made some proposals of his own to pay adult-child maintenance in respect of his older child, X, born (omitted) 1997.
For the reasons that follow, I propose to dismiss all of the mother’s application save for the adult-child maintenance application.

Some Agreed Background Facts

The mother was born on (omitted) 1967 and the father on (omitted) 1964. They married on (omitted) 1989 and separated in 2005.
As noted, X was born on (omitted) 1997 and their younger son Y on (omitted) 2003.
Following separation and divorce in 2006, the father remarried Ms S in (omitted) 2006 and has two further children whose ages do not appear to be given with great precision but who appear now to be eight and five.
The father is employed as a (occupation omitted) and has various business interests in…

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 Gillen and Gillen

Details

AGLC: Gillen and Gillen [2016] FCCA 3004
Case: [2016] FCCA 3004
Decision Date: 24 November 2016

CaseChat Overview and Summary

In *Gillen and Gillen*, heard by Judge Burchardt, the dispute concerned applications for adult-child maintenance. The father sought to terminate his obligation to pay maintenance, while the mother sought to continue it.

The primary legal issue before the court was whether the father's obligation to pay adult-child maintenance for his daughter, X, should continue, and if so, on what terms. This involved considering the daughter's ongoing education and the father's financial capacity and responsibilities.

Judge Burchardt reasoned that the daughter's pursuit of a university degree constituted a continuing responsibility for the father, justifying the continuation of maintenance. The court ordered the father to pay $100 per week in adult-child maintenance until the daughter completed her degree, with annual increases of $10 per week on each 17 November thereafter. All other applications were dismissed.

Orders

Orders of the court

That the father pay $100 per week to the mother by way of adult-child maintenance in respect of his child X until such time as she completes her degree in (qualifications omitted) whichever is the later.

The $100 per week is to increase by $10 per week on 17 November 2017 and a further $10 per week on each 17 November thereafter until maintenance ceases pursuant to order 1.

Otherwise, all extant applications are 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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