M and M - [2002] FMCAfam 259

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M

[2002] FMCAfam 259

CHILD SUPPORT – Whether mortgage payments on property the husband wanted to keep should be regarded as ‘necessary commitments’ pending the finalisation of property proceedings.

Gysleman v Gysleman (1992) FLC92-289 16 FamLR 99
Morrison v Morrison (1990) FLC 92-136
Child Support (Assessment) Act 1989, ss.117 (2) (a) (iiii)(c); 117 (2) (c) (i)

Applicant:

R M

Respondent:

J M

File No:

(P)MLM 4201 of 2002

Delivered on:

1 July 2002

Delivered at:

Melbourne

Hearing Date:

24 June 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr O’Shannassey

Solicitors for the Applicant:

Ryan Mackey & McClelland

Counsel for the Respondent:

Ms Smallwood

Solicitors for the Respondent:

McCarthy Hoey

ORDERS

That the child support assessment dated 18 January 2001 for the period 1 July 2002 to 30 April 2003 be departed from and in lieu of the child support income amount of $113,542.00 the paying parent’s (the husband’s) child support income amount be fixed at $103,627.00.
That in respect of the child support assessments from 28 March 2001 to 30 June 2002, the paying parent (the husband) be given credit for non-agency payments of $936.00 per annum in relation to those periods.
That the Child Support Registrar forthwith make such adjustments to the register as are necessary to give effect to these orders.
That the application of the husband filed on 5 April 2002 be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 4201 of 2002

R M

Applicant

And

J M

Respondent

REASONS FOR JUDGMENT

In this matter the husband has a child support application in relation to his two children aged eight and five. The husband's application is for a departure from administrative assessment of child support for various periods going back to 28 March 2001 and extending through to 31 July 2004. The basis of his application is that he is making various payments, such as mortgage loan repayments and health insurance, which should be taken into account to reduce his child support assessment.

Background

The husband and wife were married in October 1982. S was born in 1994 and L in 1997. The parties separated in September 2000. The children have lived with the wife in the former matrimonial home since separation and have contact with the husband. The parties are still litigating property issues and contact in the Family Court of Australia. The final hearing of those matters is likely to be towards the end of the year. Notwithstanding that those matters will be the subject of a hearing, if not resolved, later in the year, both parties wish this application to proceed as a discrete matter.
When the parties separated the husband was employed as a metallurgist by R Tinto. He ceased his employment with Rio Tinto on 28 February 2001. He then received the equivalent of approximately 11 months of total remuneration, $132,790 plus leave payments of approximately $34,137. These sums totalled $166,927. Tax on the total payments left approximately…

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.

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Details

AGLC: M and M [2002] FMCAfam 259
Case: [2002] FMCAfam 259
Decision Date: 1 July 2002

CaseChat Overview and Summary

The parties involved in the case were a husband and wife who were in dispute over child support payments. The wife brought proceedings in the Family Court of Australia to seek an assessment of child support payments, while the husband contested the assessment and sought a departure from it. The court was required to determine the appropriate child support income amount for the husband, as well as whether he was entitled to credit for non-agency payments made during certain periods. The court considered the evidence and arguments presented by both parties, including financial information and calculations provided by the Child Support Agency. It found that the child support assessment for the period in question was incorrect and that the husband was entitled to credit for non-agency payments made during certain periods. The court therefore varied the child support assessment and ordered that credit be given for non-agency payments. The husband's application to depart from the child support assessment was otherwise dismissed. The court made orders to give effect to its decision, including fixing the child support income amount and directing the Child Support Registrar to make necessary adjustments to the register.

Orders

Orders of the court

That the child support assessment dated 18 January 2001 for the period 1 July 2002 to 30 April 2003 be departed from and in lieu of the child support income amount of $113,542.00 the paying parent’s (the husband’s) child support income amount be fixed at $103,627.00.

That in respect of the child support assessments from 28 March 2001 to 30 June 2002, the paying parent (the husband) be given credit for non-agency payments of $936.00 per annum in relation to those periods.

That the Child Support Registrar forthwith make such adjustments to the register as are necessary to give effect to these orders.

That the application of the husband filed on 5 April 2002 be otherwise 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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