May and May (No.2) - [2005] FMCAfam 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MAY & MAY (No.2)

[2005] FMCAfam 113

CHILD SUPPORT – Departure Application – grounds for departure.

Child Support (Assessment) Act 1989 (Cth), ss.3; 115; 116; 117
Mental Health (Criminal Procedure Act 1990 (NSW), s.32

In the Marriage of Gyselman (1991) 15 Fam LR 219; FLC 92-279
In the Marriage of DJM and JLM (1998) 23 Fam LR 396; FLC 92-816

Applicant:

RICHARD PAUL MAY

Respondent:

SRI PURNAMAWATI MAY

File Number:

PAM 3009 of 2000

Judgment of:

Scarlett FM

Hearing date:

4 September 2002

Date of Last Submission:

4 September 2002

Delivered at:

Sydney

Delivered on:

7 March 2005

REPRESENTATION

The Applicant:

Appeared in person

The Respondent:

Appeared in person

ORDERS

That there be a departure from the administrative assessment of child support made on 17 April 2000 varying the annual rate of child support payable by the Applicant for the period 1 January 2000 to

30 September 2002 to $8,067.00.
That the annual rate of child support payable by the Applicant to the Respondent for the support of the children TAMARA NADIA MAY born 21 June 1988, EMILY FITRIA MAY born 16 April 1991 and JACINTA RACHMAWATI MAY born 20 August 1992 for the period

1 January 2000 to 30 September 2002 is set at $3,082.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAM 3009 of 2000

RICHARD PAUL MAY

Applicant

And

SRI PURNAMAWATI MAY

Respondent

REASONS FOR JUDGMENT

Application

This is an application by the husband, the liable parent, to depart from an administrative assessment of child support made on 17^th April 2000. The orders that the Applicant seeks are the following:
(a) That the child support decision of 6^th May 2000 be varied to $45.00 per week in the light of special circumstances, income earning history and capacity, and the need to support his spouse and future child.
(b) That the Child Support Agency back-payments and penalties be varied to NIL, as is deemed right and proper in the circumstances of this case.
The Respondent, who is the payee, opposes the application.

Background

The Applicant and the Respondent were married on 9^th June 1983 at Jakarta, in the Republic of Indonesia. The parties separated on

15^th September 1997 and were divorced on 2^nd February 2001. They both live in Australia.
There are three children of the marriage – TAMARA NADIA MAY, born on 21^st June 1988, EMILY FITRIA MAY born 16^th April 1991, and JACINTA RACHMAWATI MAY, born 20^th August 1992. They live with the Respondent.
Orders were made by consent in the Family Court of Australia at Canberra on 7^th December 2000, discharging earlier orders made on 22^nd June 1999, and providing that the children would live with the Respondent and the Applicant would have defined contact with them.
The administrative assessment that is the subject of the Departure Application was made on 17^th April 2000. That assessment provided that the annual rate of child support for the period 1^st

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 May and May (No.2)

Details

AGLC: May and May (No.2) [2005] FMCAfam 113
Case: [2005] FMCAfam 113
Decision Date: 7 March 2005

CaseChat Overview and Summary

The case of May and May (No.2) involved a dispute between the applicant and the respondent over the amount of child support payable by the applicant for the support of their three children. The matter was heard in the Family Court of Australia. The primary issue before the court was whether the administrative assessment of child support made on 17 April 2000 was correct, or whether the annual rate of child support payable by the applicant should be varied.

The court was required to decide if the administrative assessment of child support was accurate and, if not, what the correct annual rate of child support payable by the applicant should be. The court considered various factors, including the income of both parties, the needs of the children, and the Child Support (Assessment) Act 1989. After considering the evidence presented by both parties, the court found that the administrative assessment was incorrect.

In its decision, the court held that the annual rate of child support payable by the applicant for the period from 1 January 2000 to 30 September 2002 should be set at $3,082.00. The court found that the administrative assessment had incorrectly calculated the child support payable by the applicant and that the correct amount should be lower. The court also held that there should be a departure from the administrative assessment of child support made on 17 April 2000. The court's decision was based on a careful consideration of the evidence and the relevant legislation.

In summary, the court found that the administrative assessment of child support was incorrect and varied the annual rate of child support payable by the applicant. The court set the annual rate of child support payable by the applicant at $3,082.00 for the period from 1 January 2000 to 30 September 2002. The court's decision was based on a detailed analysis of the evidence and the relevant legislation.

Orders

Orders of the court

That there be a departure from the administrative assessment of child support made on 17 April 2000 varying the annual rate of child support payable by the Applicant for the period 1 January 2000 to

30 September 2002 to $8,067.00.

That the annual rate of child support payable by the Applicant to the Respondent for the support of the children TAMARA NADIA MAY born 21 June 1988, EMILY FITRIA MAY born 16 April 1991 and JACINTA RACHMAWATI MAY born 20 August 1992 for the period

1 January 2000 to 30 September 2002 is set at $3,082.00.

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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