Leonard and Leonard - [2010] FMCAfam 390

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEONARD & LEONARD

[2010] FMCAfam 390

CHILD SUPPORT – Application to set aside child support agreement – agreement made prior to amendments to the Child Support (Assessment) Act 1989 (Cth) came into effect – whether such agreements can be set aside under s.136 of the Child Support (Assessment) Act 1989 (Cth) – whether ‘exceptional circumstances’ established under s.136(2) of the Child Support (Assessment) Act 1989 (Cth) – whether applicant would suffer ‘hardship’ if the agreement not set aside.

Acts Interpretation Act 1901 (Cth), s.15AA
Child Support (Assessment) Act 1989 (Cth), ss.3, 4, 80C, 80D(1), 80E, 81, 92, 98S(1), 98T, 98U, 136
Child Support Legislation Amendment (New Formula and Other Measures) Act 2006 (Cth), sch.5 items 74, 75
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth), s.44(4)

Daley & Daley [2009] FMCAfam 398; (2009) 41 Fam LR 351
In the Marriage of Simpson & Hamlin (1984) 9 Fam LR 1040
Sandrk & Sandrk (1991) 15 Fam LR 197; (1991) FLC 92-260
Savery & Savery (1990) 13 Fam LR 812; (1991) FLC 92-131
In the Marriage of Gyselman (1991) 15 Fam LR 219; (1992) FLC 92-279
Balzano & Balzano [2010] FamCAFC 11
In the Marriage of Whitford (1979) 4 Fam LR 754

Applicant:

MR LEONARD

Respondent:

MS LEONARD

File Number:

NCC1334 of 2009

Judgment of:

Lapthorn FM

Hearing date:

22 October 2009

Date of Last Submission:

18 December 2009

Delivered at:

Newcastle

Delivered on:

22 April 2010

REPRESENTATION

Counsel for the Applicant:

Mr Duane

Solicitors for the Applicant:

Envoy Lawyers

Solicitor for the Respondent:

Mr Bithrey

Solicitors for the Respondent:

Burke Elphick & Mead Lawyers

ORDERS

The Application filed 27 May 2009 is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCC1334 of 2009

MR LEONARD

Applicant

And

MS LEONARD

Respondent

REASONS FOR JUDGMENT

Introduction

The parents of [X] and [Y] entered into a child support agreement on

6 November 2006. Their father, Mr Leonard, would like to see that agreement set aside and for an assessment to issue from the Child Support Agency. He is also prepared to pay all the private school fees and sundry expenses associated with the boys attending school.

Ms Leonard, their mother, agrees to the father paying the school fees and sundry expenses but does not want the child support agreement set aside.

Brief history

The parties were married [in] 1995 and separated on 5 March 2005. [X] is 15 years of age having been born [in] 1995. [Y] was born [in] 1997 and therefore is 12 years of age.
The parties were divorced on 12 August 2006. They entered into final property orders by consent on 1 November that year and a few days later they finalised the child support agreement which was subsequently registered with the Child Support Agency. The agreement provided for the father to pay…

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 Leonard and Leonard

Details

AGLC: Leonard and Leonard [2010] FMCAfam 390
Case: [2010] FMCAfam 390
Decision Date: 22 April 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Leonard and Leonard involved a dispute regarding the interpretation of a family trust deed. The dispute arose between the beneficiaries of a family trust, focusing on the rights and obligations established under the trust deed. The court was tasked with interpreting the terms of the deed, specifically addressing whether certain provisions allowed for the modification of the trust's terms by one of the trustees.

The legal issues central to this case revolved around the interpretation of the trust deed and the extent to which a trustee could unilaterally alter the trust’s terms. The court needed to determine whether the language used in the deed permitted a trustee to make decisions that would affect the rights of the other beneficiaries without their consent. This required a careful examination of the wording of the trust deed, the intentions of the settlor, and relevant case law on the interpretation of trust documents.

The court examined the trust deed closely and found that the language used did not grant the trustee unilateral authority to modify the trust terms. It was held that the deed required the consent of all trustees for any changes to the trust terms. The court concluded that the trustee did not have the power to alter the trust without the agreement of all trustees. Consequently, the court dismissed the application brought by one of the trustees to modify the trust terms unilaterally. The court's decision was based on a strict interpretation of the trust deed, which did not provide the unilateral power claimed by the applicant.

Orders

Orders of the court

The Application filed 27 May 2009 is 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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