Muirden & Muirden - [2008] FMCAfam 311

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MUIRDEN & MUIRDEN

[2008] FMCAfam 311

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

SPOUSAL MAINTENANCE – Variation of existing orders.

Child Support Legislation Amendment (Reform of the Child Support
Scheme – New Formula and Other Measures) Act, 2006 (Cth)
Child Support (Assessment) Act, 1989 (Cth)
Family Law Act 1975 (Cth) ss. 72(1), 81

M & M [2007] FMCAfam 662

Applicant:

MS MUIRDEN

Respondent:

MR MUIRDEN

File Number:

MLM 2825 of 2003

Judgment of:

Lucev FM

Hearing date:

24 October 2007

Date of Last Submission:

24 October 2007

Delivered at:

Sydney (via telephone by Scarlett FM)

Delivered on:

8 April 2008

REPRESENTATION

Applicant:

Ms Muirden appeared in person

Respondent:

Mr Muirden appeared in person

ORDERS

Order 14(b) of the Family Court orders of 18 November 2003 be discharged with effect from 1 July 2005.
That for the period 1 July 2005 – 30 June 2006 there be a departure from the provisions of administrative assessment of child support payable by the father, Mr Muirden (“the liable parent”) for the children T, born in 1997, and P, born in 2000, in that for the said period the liable parent’s child support income amount be fixed in the sum of $41,600.00 and the obligation to pay child support otherwise assessed in accordance with the provisions of the Child Support (Assessment) Act 1989.
That for the period 1 July 2006 – 30 June 2007 there be a departure from the provisions of administrative assessment of child support payable by the father, Mr Muirden (“the liable parent”) for the children T, born in 1997, and P, born in 2000 in that for the said period the liable parent’s child support income amount be fixed in the sum of $17,272.00 and the obligation to pay child support otherwise assessed in accordance with the provisions of the Child Support (Assessment) Act 1989.
That the Child Support Registrar be requested to make the necessary calculations and to amend the Child Support assessment accordingly.
That order 13 of the Family Court orders of 18 November 2003 be varied by inserting the date “30 June 2006” in lieu of

“18 November 2008”.
Otherwise, all extant applications be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

MLM 2825 of 2003

MS MUIRDEN

Applicant

And

MR MUIRDEN

Respondent

REASONS FOR JUDGMENT

Application – Child Support

In M & M[1] the background and orders sought by the parties were set out as follows:
[1] [2007] FMCAfam 662 (“M & M”).

Background

20. Order 14(b) of the Family Court orders in M[2] provide for a departure from administrative assessment for child support, and that for the period from 23 December 2002 to 1 February 2006 that Mr M pay child support of:
[2] M & M (unreported, Family Court of Australia, Brown J,…

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 Muirden & Muirden

Details

AGLC: Muirden & Muirden [2008] FMCAfam 311
Case: [2008] FMCAfam 311
Decision Date: 8 April 2008

CaseChat Overview and Summary

The case of Muirden & Muirden was before the Family Court, where the primary issue was the variation of existing child support and spousal maintenance orders. The application was brought by the mother, who sought changes to the child support and spousal maintenance orders established in previous Family Court orders. The existing orders were made on 18 November 2003, and the mother argued that changes were necessary due to altered circumstances, particularly relating to the father's income and the children's needs.

The legal issues the court had to address were whether there were special circumstances justifying a departure from the standard administrative assessment of child support and whether the existing spousal maintenance order should be varied. Special circumstances warranting a departure from standard child support assessments are narrowly construed and require clear and compelling evidence. Similarly, variations to spousal maintenance orders require a demonstration of significant changes in circumstances since the original orders were made.

The court found that there were indeed special circumstances warranting a variation of the child support orders. Evidence was presented demonstrating significant changes in the father's income, which had decreased considerably from the time the original orders were made. The court accepted that the fixed income amounts proposed for the child support assessments were appropriate given the father's current financial situation. Regarding spousal maintenance, the court found that while the mother's financial situation had improved, the overall change in circumstances did not warrant a variation to the existing spousal maintenance order at that time.

The court made several orders, including discharging the existing child support orders and substituting them with fixed income amounts for specific periods. Additionally, the court varied the spousal maintenance order to end earlier than originally stipulated. It directed the Child Support Registrar to amend the child support assessment accordingly. The court dismissed all other applications not addressed in the orders.

Orders

Orders of the court

Order 14(b) of the Family Court orders of 18 November 2003 be discharged with effect from 1 July 2005.

That for the period 1 July 2005 – 30 June 2006 there be a departure from the provisions of administrative assessment of child support payable by the father, Mr Muirden (“the liable parent”) for the children T, born in 1997, and P, born in 2000, in that for the said period the liable parent’s child support income amount be fixed in the sum of $41,600.00 and the obligation to pay child support otherwise assessed in accordance with the provisions of the Child Support (Assessment) Act 1989.

That for the period 1 July 2006 – 30 June 2007 there be a departure from the provisions of administrative assessment of child support payable by the father, Mr Muirden (“the liable parent”) for the children T, born in 1997, and P, born in 2000 in that for the said period the liable parent’s child support income amount be fixed in the sum of $17,272.00 and the obligation to pay child support otherwise assessed in accordance with the provisions of the Child Support (Assessment) Act 1989.

That the Child Support Registrar be requested to make the necessary calculations and to amend the Child Support assessment accordingly.

That order 13 of the Family Court orders of 18 November 2003 be varied by inserting the date “30 June 2006” in lieu of

“18 November 2008”.

Otherwise, all extant applications 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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