K & M (No.2) - [2007] FMCAfam 920

FEDERAL MAGISTRATES COURT OF AUSTRALIA

K & M (No.2)

[2007] FMCAfam 920

CHILD SUPPORT – Departure application – no full and frank financial disclosure – special circumstances – just and equitable – not just and equitable to allow departure application – not otherwise proper to allow departure application – whether future review and departure applications ought be restricted – injunctions over funds and property – whether injunctions ought be discharged – disposition of funds and property – lump sum child support – costs.

Child Support (Assessment) Act 1989 (Cth), s.117(2)(c) and (5)

Chang & Su (2002) FLC 93-117
PAK & GM [2007] FMCAfam 524
PAK & GDK [2004] FMCAfam 92
Tate & Tate (2000) FLC 93-047

Applicant:

P A K

First Respondent:

G M

Second Respondent:

M K

File Number:

MLC 1038 of 2007

Judgment of:

Lucev FM

Hearing dates:

22 June; 30-31 August; 4 September;
1 October 2007

Date of Last Submission:

1 October 2007

Delivered at:

Darwin (by telephone to Melbourne)

Delivered on:

2 November 2007

REPRESENTATION

Applicant:

Mr P. K in person

Counsel for the first Respondent:

Mr Hoult

Solicitors for the first Respondent:

Hardys Lawyers

Counsel for the second Respondent:

Ms Piggot

Solicitors for the second Respondent:

Bradleys Lawyers

ORDERS

The Applicant Husband’s application filed 23 March 2007 for a departure order be dismissed.
The Applicant Husband be restrained from filing any further:
(a)review application with the Child Support Agency; or
(b)departure order application with any court having jurisdiction under the Child Support (Assessment) Act 1989 (Cth),
without first obtaining leave of this Court.
That any monies in Cheque Account No. 000 with the Westpac Banking Corporation in the name of G N Pty Ltd (or similar name) be paid to the Child Support Agency in reduction of arrears of child support, on or before 4.00 pm 16 November 2007.
The injunction restraining the sale, disposal, encumbrance or further encumbrance of the property situate at S, Victoria, be discharged.
That in relation to costs:
(a)any party seeking costs file and serve written submissions including orders sought by 4.00 pm on 16 November 2007;
(b)written submissions in response to the written submissions in paragraph (a) of this Order be filed and served by 4.00 pm on 23 November 2007; and
(c)the Court will determine costs, if any, on the basis of the written submissions without oral hearing.
Otherwise, any extant applications be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

MLC 1038 of 2007

P A K

Applicant

And

G M

First Respondent

M K

Second Respondent

REASONS FOR JUDGMENT

Introduction

P A K[1] married G M[2] on March 1982. The Husband and Former Wife separated on January 2002. There are three children of the marriage, the oldest is now aged 19 and there are twins now aged 13.
[1] “Husband”.
[2] “Former Wife”.
It is in respect of child support for the three children of the marriage to the Former Wife that the Husband has made application for a departure order from an existing child support…

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 K & M (No.2)

Details

AGLC: K & M (No.2) [2007] FMCAfam 920
Case: [2007] FMCAfam 920
Decision Date: 2 November 2007

CaseChat Overview and Summary

This case involved an application by the husband seeking a departure order under the Child Support (Assessment) Act 1989 (Cth) to vary an assessment of child support payments. The matter was heard in the Family Court of Australia. The dispute centred around the husband's dissatisfaction with the child support assessment and his subsequent attempts to challenge it through various applications and legal proceedings.

The primary legal issues before the court were whether the husband's application for a departure order should be dismissed and if he should be restrained from filing further review applications with the Child Support Agency or courts. The court also needed to determine whether any monies held in a specific bank account should be paid to the Child Support Agency to reduce the arrears of child support, and whether an injunction restraining the sale or disposal of a property should be discharged.

The court found that the husband's application for a departure order was without merit and dismissed it. It was noted that the husband had previously been granted leave to file a review application, which was subsequently dismissed. The court concluded that the husband should be restrained from filing any further review applications or departure order applications without first obtaining leave from the court. The monies in the specified bank account were ordered to be paid to the Child Support Agency in reduction of arrears. Additionally, the injunction restraining the sale, disposal, or further encumbrance of the property was discharged. The court also outlined the process for determining costs, which involved written submissions and a final determination without an oral hearing. Any other extant applications were dismissed.

Orders

Orders of the court

The Applicant Husband’s application filed 23 March 2007 for a departure order be dismissed.

The Applicant Husband be restrained from filing any further:

(a) review application with the Child Support Agency; or

(b) departure order application with any court having jurisdiction under the Child Support (Assessment) Act 1989 (Cth),

without first obtaining leave of this Court.

That any monies in Cheque Account No. 000 with the Westpac Banking Corporation in the name of G N Pty Ltd (or similar name) be paid to the Child Support Agency in reduction of arrears of child support, on or before 4.00 pm 16 November 2007.

The injunction restraining the sale, disposal, encumbrance or further encumbrance of the property situate at S, Victoria, be discharged.

That in relation to costs:

(a) any party seeking costs file and serve written submissions including orders sought by 4.00 pm on 16 November 2007;

(b) written submissions in response to the written submissions in paragraph (a) of this Order be filed and served by 4.00 pm on 23 November 2007; and

Otherwise, any extant 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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