Imago and Imago - [2010] FMCAfam 411

FEDERAL MAGISTRATES COURT OF AUSTRALIA

IMAGO & IMAGO

[2010] FMCAfam 411

CHILD SUPPORT – Overseas maintenance orders made in 1998 and varied in 2006 – mother and two children live in the United States of America – father’s application to vary American order and to discharge arrears.

Child Support (Registration and Collection) Act1988, ss.4, 18A
Child Support (Registration and Collection) Regulations1988, schedule 2
Family Law Act 1975, ss.66B, 66C, 66D, 66S, 66G, 66H, 66J

Family Law Regulations1984, reg.36, 38

Beck v Sliwka (1992) FLC 92-296
Coon v Cox (1994) FLC 92-464
Ganter v Grimshaw (1998) FLC 92-810
Mee and Ferguson (1986) FLC 91-716

Streets & Streets (1994) FLC 92-509

Applicant:

MR IMAGO

Respondent:

MS IMAGO

File Number:

SYC 4746 of 2009

Judgment of:

Sexton FM

Hearing date:

3 February 2010

Date of Last Submission:

3 February 2010

Delivered at:

Sydney

Delivered on:

28 April 2010

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

No appearance

In attendance for Child Support Agency:

Ms R

THE COURT ORDERS THAT:

The Father’s application for DNA testing of the applicant’s two children [X] and [Y] be dismissed.
The Orders of the Pennsylvania Court of 6 March 2006 be varied as follows:
(a)For the period 1 March 2006 until 23 August 2015 ([Y]’s 18^th birthday) the Father’s liability for child maintenance be set at $217AUD per month.
(b)The child support payable by the Father be increased in accordance with the Consumer Price Index on 1 July 2010 and on 1 July each year thereafter.
A sealed copy of these orders be forwarded forthwith to Ms R of the International Division of the Child Support Agency.
The Child Support Agency be granted liberty to apply within 30 days in relation to implementation of these orders.
The Child Support Agency of Australia forthwith forward a sealed copy of this Order to the Respondent Mother.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATSYDNEY

SYC 4746 of 2009

MR IMAGO

Applicant

And

MS IMAGO

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns child maintenance for [X] born [in] 1995, now aged 15 years and [Y] born [in] 1997, now aged 12 years. The parties are the children’s parents. The Father lives in Sydney with his wife of 10 years, Ms P. The applicant Father and Ms P were expecting their first child in March 2010. The Mother lives in the United States of America with [X] and [Y].
In his application filed on 10 August 2009, the Father sought a variation of a child maintenance order made by the Court of Common Pleas of Cumberland County, Pennsylvania, USA on 6 March 2006. The Father asked this Court to discharge the whole of his child maintenance arrears and sought an order that his ongoing liability for child maintenance be calculated by the Child Support Agency in Australia in accordance…

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.

Keep reading for free

Create a free CaseChat account to read Imago and Imago and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCAfam 411
Decision Date: 28 April 2010

CaseChat Overview and Summary

Imago and Imago involved a dispute between the father and the mother of two children, [X] and [Y], regarding child maintenance and DNA testing. The case was heard in the Family Court of Australia. The father sought DNA testing to determine whether he was the biological father of the children, and also sought a variation of the child maintenance orders made by the Pennsylvania Court.

The court had to decide whether the father's application for DNA testing was justified, and if so, whether it should be granted. The court also had to determine if the child maintenance orders made by the Pennsylvania Court should be varied, and if so, what the new orders should be. The court considered the best interests of the children in making its decision.

The court found that there was no justification for the father's application for DNA testing, and dismissed the application. The court varied the child maintenance orders made by the Pennsylvania Court, setting the father's liability for child maintenance at $217AUD per month until the child [Y] turned 18. The court also ordered that the child support payable by the father be increased in accordance with the Consumer Price Index on 1 July 2010 and on 1 July each year thereafter. The court further ordered that a sealed copy of the orders be sent to the Child Support Agency and the mother of the children, and that the Child Support Agency be granted liberty to apply within 30 days in relation to implementation of these orders.

Orders

Orders of the court

The Father’s application for DNA testing of the applicant’s two children [X] and [Y] be dismissed.

The Orders of the Pennsylvania Court of 6 March 2006 be varied as follows:

(a) For the period 1 March 2006 until 23 August 2015 ([Y]’s 18th birthday) the Father’s liability for child maintenance be set at $217AUD per month.

(b) The child support payable by the Father be increased in accordance with the Consumer Price Index on 1 July 2010 and on 1 July each year thereafter.

A sealed copy of these orders be forwarded forthwith to Ms R of the International Division of the Child Support Agency.

The Child Support Agency be granted liberty to apply within 30 days in relation to implementation of these orders.

The Child Support Agency of Australia forthwith forward a sealed copy of this Order to the Respondent Mother.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.