M and M - [2007] FMCAfam 662

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M

[2007] FMCAfam 662

CHILD SUPPORT – Variation of existing departure orders – special circumstances.

FAMILY LAW – Parenting orders – changeover – psychiatric assessment.

SPOUSAL MAINTENANCE – Variation or discharge of existing orders.

Child Support (Assessment) Act 1989 (Cth), ss.111(1), 112(1)(b) and (2), 117(2)(a)(iii), 2(c)(ia) & (ib), (4)(a), (b), (d)(da) & (e), (5)(a) & (b), (6)(a) & (b), (7B)(a)(i), (b) & (c), and 118(2B)
Family Law Act 1975 (Cth), ss.60CC(2)(a) & (3), 83(1)(c) & (f)and (2)(a)(ii)

Bevan & Bevan (1995) FLC 92 - 600
Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346
Hungerford & Tank [2007] FamCA 637
In the Marriage of Gilmour (1994) 18 FamLR 646
In the Marriage of Gyselman (1991) 15 FamLR 219
In the Marriage of JM & PJ Bryant (1996) 20 FamLR 575
M & M (unreported, Family Court of Australia, Brown J, 18 November 2003)

Applicant:

C J M

Respondent:

C T M

File Number:

MLM 2825 of 2003

Judgment of:

Lucev FM

Hearing date:

18 June 2007

Date of Last Submission:

18 June 2007

Delivered at:

New South Wales (via telephone to Melbourne)

Delivered on:

21 September 2007

REPRESENTATION

Applicant:

Mrs M appeared in person

Respondent:

Mr M appeared in person

DECLARATION AND ORDERS

The Court declares that:

the Respondent has established that:
(a)a special circumstance ground of departure under s.117(2)(c)(i) of the Child Support (Assessment) Act 1989 (“the Assessment Act”) warranting the making of an order or orders departing from the existing assessment of child support under order 14(b) of the orders of the Family Court of Australia dated 18 November 2003 (“the existing child support orders”);
(b)it would be just and equitable under s.117(4) of the Assessment Act to make an order or orders departing from the existing child support orders;
(c)it would be otherwise proper under s.117(5) of the Assessment Act to make an order or orders departing from the existing child support orders; and
(d)the final form of any such order or orders will be determined following the filing of updated financial material by the parties.
The Respondent has established grounds for an order or orders under s.83(1)(c) and (f) and 83(2)(a)(ii) of the Family Law Act 1975 (Cth), for the discharge or variance of the existing quantum of spousal maintenance under order 13 of the orders of the Family Court of Australia dated 18 November 2003, but that the final form of any such order or orders will be determined following the filing of updated financial material by the parties.

AND THE COURT ORDERS THAT:

Orders 13 and 14(b) of the orders of the Family Court of Australia dated 18 November 2003 be stayed until further order of this Court.
The Applicant and Respondent are to file and serve:
(a)copies of personal income tax returns for the financial years ending:
(i)30 June 2005;
(ii)30 June 2006; and
(iii)30 June 2007,
and that if personal income tax returns have not been filed for any of…

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 M and M

Details

AGLC: M and M [2007] FMCAfam 662
Case: [2007] FMCAfam 662
Decision Date: 21 September 2007

CaseChat Overview and Summary

This matter concerns the application of C J M for the variation of child support and spousal maintenance orders made in the Family Court of Australia on 18 November 2003. The Court is satisfied that the respondent, C T M, has established that a special circumstance ground of departure under s.117(2)(c)(i) of the Child Support (Assessment) Act 1989 warrants the making of an order or orders departing from the existing assessment of child support. The Court is also satisfied that the respondent has established grounds for an order or orders under s.83(1)(c) and (f) and 83(2)(a)(ii) of the Family Law Act 1975 for the discharge or variance of the existing quantum of spousal maintenance. However, the final form of any such order or orders will be determined following the filing of updated financial material by the parties.

The Court heard evidence from both parties and the Official Trustee in Bankruptcy regarding the financial circumstances of the respondent. The Court found that the respondent’s evidence was credible, and that he did not have undisclosed assets and income as the applicant had alleged. The Court found that the respondent’s financial position had significantly diminished since the decision in M. He was declared bankrupt in 2005 and now receives Centrelink benefits of about $424 a week. The Court found that a special circumstance exists warranting variation of the existing departure order for child support.

The Court found that it was just and equitable to make an order varying the amount of child support payable by the respondent, and that a particular order would be otherwise proper. The final determination of the quantum of any order can await the filing of further updated financial information by both parties. The Court also found that there may be just cause for the discharge of any spousal maintenance order, or reason to vary the existing spousal maintenance order by reason of the circumstances of the respondent having so significantly changed.

The Court ordered that the existing child support and spousal maintenance orders be stayed until further order of the Court. The Court ordered that the parties file and serve copies of personal income tax returns for the financial years ending 30 June 2005, 30 June 2006, and 30 June 2007, copies of documents evidencing any remuneration or income received from any employment, engagement or provision of service of any kind, and any Centrelink benefits received, from 1 July 2007 to 30 September 2007, and updated Form 13 – Financial Statements by 4.00 pm 17 October 2007. The matter was adjourned to 24 October 2007 at 9:00 am for hearing to determine the final form of order for child support and spousal maintenance. Otherwise, all extant applications by the applicant and the respondent were dismissed.

Orders