Mathieson & Hamilton

Case [2006] FMCAfam 238


FEDERAL MAGISTRATES COURT OF AUSTRALIA

MATHIESON & HAMILTON [2006] FMCAfam 238

FAMILY LAW ─ Departure from administrative assessment ─ effect of earlier property settlement on payment of child support ─ where orders made no mention of child support ─ where orders do not contain a specific component for child support (in any form) ─ where no evidence that orders were intended to deal with child support ─ effect of lump-sum payment received by liable parent after property settlement ─ where lump-sum payment comprised part of liable parent’s income ─ where no evidence that liable parent disclosed the fact that the lump-sum payment was to be received prior to orders for property settlement being made ─ consideration of effect of decision in Paradine (1981) FLC 91-056 ─ whether parties presented evidence regarding the needs of the subject children ─ whether appropriate to rely on formula where evidence of needs of subject children is inadequate ─ consideration of Lee Scale regarding costs of children.

CHILD SUPPORT ─ Maintenance ─ whether child support and/or child maintenance "stipendiary" in nature ─ whether child support arrears can be considered to be some form of compensatory payment to a party long after the need for a child to be maintained has passed ─ power of court to retrospectively increase a party's child support obligations ─ power of court to create "instant arrears" ─ whether so-called "12 months rule" still exists ─ discretionary nature of enforcement of accumulated arrears of maintenance or child support ─ discussion of so-called "12 months rule” ─ conclusion that so-called "12 months rule" no longer exists ─ suggested considerations to be taken into account in determining whether to order the payment of accrued arrears of child support or maintenance.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989
Bassingthwaite v Leane (1993) 16 Fam LR 918
Biggs v Dienes (1975) 2 Fam LR 11,273
Breen (unreported ─ June 1996)
Cameron and Helie (2004) FMCAfam 685
Clauson (1995) FLC 92-595
Coon v Cox (1994) FLC 92-464
Dwyer v McGuire (1993) 17 Fam LR 42, (1993) FLC 92-420
Frei & Frei-Souter (unreported ─ March 1996)
Gyselman (1992) FLC 920279 at 79,064-5
Hamilton & Nowak (1988) 12 Fam LR 704
Hides & Hatton (1997) 21 Fam LR 855
Kelley (1996) 20 Fam LR 502
Levis & Mavilli (unreported ─ February 1997)
Luton v Lessels (2002) 28 Fam LR 398 at 429
Lutzke (1979) 5 Fam LR 553 at 569
Mee v Ferguson (1986) FLC 91,716
Milankov (2002) 28 Fam LR 514
Molier & Van Wyk (1980) 7 Fam LR 18 at 30
Paradine (1981) FLC 91-056
Patrikos (1977) 31 FLR 524
Portillo (1994) FLC 92-484
Reid (1978) FLC 90-529
Ross v McDermott (1998) 23 Fam LR 613 at 623-4
S v C (1997) FLC 92-750
Savery (1990) FLC 92-131 at 77,897
Sloan (1994) 18 Fam LR 249
Spry v Roet (1977) FLC 90-301
Streets (1994) FLC 92-509
Tingle (1947) 65 W.N. (NSW) 43
Truscott (1986) FLC 91-761
Vautin (1998) 23 Fam LR 627

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AGLC
Mathieson & Hamilton [2006] FMCAfam 238
Case
[2006] FMCAfam 238
Decision Date

CaseChat Overview and Summary

The case of Mathieson & Hamilton involved a dispute between the husband and wife regarding the assessment of child support payments. The matter was brought before the court under section 117 of the Child Support (Assessment) Act 1989, which grants the court the authority to depart from the administrative assessment of child support. The husband and wife were in disagreement over the child support payable for their children, Carl and Mary-Ellen.

The court was required to decide on the appropriate annual rates of child support for the husband to pay to the wife for the benefit of their children for various periods. The determination involved considering the specific needs and circumstances of each child over the stipulated time frames. The court had to balance the statutory guidelines provided by the Child Support (Assessment) Act 1989 with the individual requirements of the children, taking into account factors such as the ages and living arrangements of Carl and Mary-Ellen.

In reaching its decision, the court meticulously reviewed the evidence presented and applied the relevant statutory provisions. The court calculated the child support amounts by considering the income of the husband and the needs of the children for each specified period. The resulting decision set different annual rates of child support for each child based on their respective circumstances during the relevant periods. The court's determination reflected a careful consideration of the statutory framework and the particular needs of each child.

Orders

Orders of the court

1.

Pursuant to section 117 of the Child Support (Assessment) Act 1989, there be a departure from the administrative assessment of child support payable by the husband to the wife for the children Carl and Mary-Ellen as follows:

(a) For the period from 4 July 2002 to 30 June 2003, the annual rate of child support be set at $8,372.00 (being the equivalent of $161.00 per week). This amount is in respect of the child Carl only.

(b) For the period from 1 July 2003 to 31 January 2004, the annual rate of child support be set at $4,992.00 (being the equivalent of $96.00 per week). This amount is in respect of the child Carl only.

(c) For the period from 1 February 2004 to 29 February 2004, the annual rate of child support be set at $17,472.00 (being the equivalent of $336.00 per week). This amount is in respect of the children Carl and Mary-Ellen, and is to be apportioned equally between the children.

(d) For the period from 1 March 2004 to 30 June 2004, the annual rate of child support be set at $8,736.00 (being the equivalent of $168.00 per week). This amount is in respect of the child Mary-Ellen only.

(e) For the period from 1 July 2004 to 31 May 2005, the annual rate of child support be set at $10,400.00 (being the equivalent of $200.00 per week). This amount is in respect of the child Mary-Ellen only.

(f) For the period from 1 June 2005 to 30 June 2005, the annual rate of child support be set at $8,736.00 (being the equivalent of $168.00 per week). This amount is in respect of the child Mary-Ellen only.

(g) For the period from 1 July 2005 to 26 November 2005, the annual rate of child support be set at $9,152.00 (being the equivalent of $176.00 per week). This amount is in respect of the child Mary-Ellen only.

2.

All extant applications of the husband and the wife 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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