Neville and Neville - [2010] FMCAfam 1162

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NEVILLE & NEVILLE

[2010] FMCAfam 1162

CHILD SUPPORT – Child support agreement set aside – binding agreement – unconscionable conduct – exceptional circumstances and hardship – loss of financial support provided to the Father by his Mother.

Family Law Act 1975, s.79A
Child Support Legislation Amendment (New Formula and Other Measures) Act 2006 (Cth) (the Amending Act)
Child Support (Assessment) Act 1989 (Cth), ss.3, 4, 80C, 80E , 81, 136(2)(d)

Leonard v Leonard [2010] 239 FLR 66
Gallup v Gallup [2009] FMCAfam 839
Simpson and Hamlin (1984) FLC 91-576
Daley & Daley [2009] FMCAfam 398
Henricksen & Janz (No.3) [2008] FMCAfam 1343

Applicant:

MR NEVILLE

Respondent:

MS NEVILLE

File Number:

BRC 3323 of 2010

Judgment of:

Cassidy FM

Hearing date:

6 August 2010

Date of Last Submission:

6 August 2010

Delivered at:

Brisbane

Delivered on:

26 October 2010

REPRESENTATION

Solicitors for the Applicant:

Self Represented

Counsel for the Respondent:

Mr Alexander

Solicitors for the Respondent:

McPhee Lawyers

ORDERS

That the Child Support Agreement (CSA reference number [omitted]) be set aside by the Court.
That child support payments be administered by the Child Support Agency.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
ATBRISBANE

BRC 3323 of 2010

MR NEVILLE

Applicant

And

MS NEVILLE

Respondent

REASONS FOR JUDGMENT

Introduction – Orders Sought

This is an application by the Father where he seeks the following orders:
a)That the Child Support Agreement (CSA reference number [omitted]) be set aside by the Court.
b)
That paragraph 11 of the Orders BRM8793/2006 agreed

26 February 2007 be set aside by the Court.
c)That child support payments be administered by the Child Support Agency.
d)That the Court Order that 50% of all school fees, school uniforms, booklists and sporting costs be treated as prescribed payments by the Child Support Agency.
Paragraph 11 of the Orders of 26 February 2007 provides
“The father is not able to claim an entitlement to a non agency payment or credit pursuant to s71A and s71C of the Child Support (Registration and Collection) Act in relation to the payment of those school fees, uniforms, book list requirements and health insurance paid for in accordance with the Child Support Agreement a copy of which is annexed to these Orders, such amounts to be treated as amounts which the Registrar is not entitled to credit pursuant to s71D of the Act.”
The Mother seeks that the Father’s application be dismissed.

Background

The parents Ms Neville born [in] 1962, forty-seven (47) years and

Mr Neville born [in] 1961 forty-nine (49) years were married [in] 1991. They have three children, twins [X] and [Y] born [in] 1995 who are fifteen (15) years old and [Z] born [in] 1997. [Z] is thirteen (13) years old.
The parents separated 15 March 2006. The parents entered into consent orders in relation to property and parenting matters on 26 February…

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

Case: [2010] FMCAfam 1162
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Mr Neville applied for the setting aside of a Child Support Agreement he had entered into with his former wife, Ms Neville. He sought that child support payments be administered by the Child Support Agency instead. The key issue before the court was whether the Child Support Agreement could be set aside based on the exceptional circumstances and hardship that had arisen since the agreement was made. The Father argued that his mother, who had previously supported him financially, could no longer do so due to her deteriorating health and financial situation. The Court accepted that the Father's mother could no longer provide the financial support she had been giving, which was a significant change in circumstances. However, the Court noted that while each individual factor might not be exceptional, the cumulative effect of these changes created a situation that could be considered exceptional. The Father also argued that the loss of his mother's financial support had created a hardship, as he was unable to pay his current child support debts without accruing credit card debt. The Court agreed that the loss of the mother's financial support had created a hardship sufficient to warrant setting aside the Child Support Agreement. The Court also considered the Father's argument that the legislation had been amended to make it more difficult to set aside child support agreements. However, the Court found that this change in legislation did not amount to exceptional circumstances. The Court set aside the Child Support Agreement and ordered that child support payments be administered by the Child Support Agency. The Court declined to set aside a property order relating to school fees, as it was not within the scope of the Child Support (Assessment) Act 1989 (Cth).

Orders