J and J - [2004] FMCAfam 98

FEDERAL MAGISTRATES COURT OF AUSTRALIA

J & J

[2004] FMCAfam 98

CHILD SUPPORT – Application for departure from administrative assessment of child support – variation of child support agreement – whether any special circumstances – where the father had reduced his hours of work and divested himself of his interest in his company by resigning the directorship and transferred his shareholding to defeat the claim of the mother to the enforcement of child support – where the mother claimed a capitalisation of child support but failed to demonstrate the father’s capacity to pay a lump sum – pursuant to section 100 of the Child Support (Assessment) Act and section 106 of the Family Law Act transactions whereby father resigned as director and transferred shareholding set aside and father’s interest in land charged.

Child Support (Assessment) Act 1989 (Cth), ss.85, 98, 100, 117, 117(1), 117(2), 117(2)(b)(ii), 117(4), 117(5), 117(6), 117(7), 117(8), 123(1), 124(1)(b), 124(2), 124(5)
Family Law Act 1975 (Cth), ss.66N(2), 100, 106B, 117

Gilmour & Gilmour (1995) FLC 92-591

Gyselman & Gyselman (1992) FLC 92-279
Hides v Hatton (1997) FLC 92-759
Prpic v Prpic (1995) FLC 92-574
Bendeich (1993) FLC 92-355
R & R [2002] FMCAfam 153

Applicant:

F (F) J

Respondent:

E J

File No:

DGM665 of 2003

Completed on:

2 July 2004 by Bryant CFM

Delivered on:

22 July 2004 by Bennett FM

Delivered at:

Melbourne

Hearing date:

24 November 2003

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Dr Ingelby

Solicitors for the Respondent:

Tausig Cherrie & Associates

ORDERS

That the father's application filed 30 June 2003 is hereby dismissed.
That in relation to the mother's application filed 11 November 2003:
(a)Pursuant to s.100 of the Child Support (Assessment) Act 1989 and s.106B of the Family Law Act 1975:
(i)the father's purported resignation as director of his company dated 26 May 2003 be set aside as from 26 May 2003; and
(ii)transfer of the father's shareholding in his company be set aside as from 26 May 2003.
That the father be restrained by injunction from conducting his business other than through his company or as a self employed businessman until further order.
That until further order the father's interest in the property at Noble Park being the whole of the land be charged with all debts owed by the father to the wife and/or the Child Support Agency arising from the child support agreement registered with the Child Support Agency on 27 February 2003 and the mother be entitled to lodge a caveat over the said property to secure her interest pursuant to this order.
That the application otherwise be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

DGM665 of 2003

F J

Applicant

And

E J

Respondent

REASONS FOR JUDGMENT

Introduction

There are two applications for determination in this matter. The first is an application by the father pursuant to the Child Support (Assessment) Act 1989 (Cth) ("the Act") in which he seeks…

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 J and J

Details

AGLC: J and J [2004] FMCAfam 98
Case: [2004] FMCAfam 98
Decision Date: 22 July 2004

CaseChat Overview and Summary

In the case of J and J, the parties were engaged in a dispute over child support obligations. The matter was before the Family Court of Australia. The father had applied to set aside his resignation from his company and a transfer of his shareholding, actions he claimed were taken to reduce his child support liability. The mother, in turn, sought to have these actions declared invalid and to enforce a charge against the father's property to secure his child support obligations.

The court had to decide whether the father's actions in resigning from his company and transferring his shareholding were valid and whether they could be set aside. Additionally, the court needed to determine if an injunction should be issued to prevent the father from conducting his business in a manner that might circumvent his child support obligations. The court also had to consider whether the mother's interest in the father's property could be secured through a charge.

The court found that the father's resignation and the transfer of his shareholding were attempts to avoid his child support obligations and were therefore invalid. The court set aside these actions and restrained the father from conducting his business outside of his company or as a self-employed businessman until further order. The court also charged the father's property to secure his child support obligations, allowing the mother to lodge a caveat over the property. The father's application was dismissed, while the mother's application was partially granted as outlined in the orders.

Orders

Orders of the court

That the father's application filed 30 June 2003 is hereby dismissed.

That in relation to the mother's application filed 11 November 2003:

(a) Pursuant to s.100 of the Child Support (Assessment) Act 1989 and s.106B of the Family Law Act 1975:

(i) the father's purported resignation as director of his company dated 26 May 2003 be set aside as from 26 May 2003; and

(ii) transfer of the father's shareholding in his company be set aside as from 26 May 2003.

That the father be restrained by injunction from conducting his business other than through his company or as a self employed businessman until further order.

That until further order the father's interest in the property at Noble Park being the whole of the land be charged with all debts owed by the father to the wife and/or the Child Support Agency arising from the child support agreement registered with the Child Support Agency on 27 February 2003 and the mother be entitled to lodge a caveat over the said property to secure her interest pursuant to this order.

That the application otherwise 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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