Ongal and Materns - [2009] FMCAfam 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ONGAL & MATERNS

[2009] FMCAfam 476

CHILD SUPPORT – Application for departure from administrative assessment – leave sought by father to proceed with application in respect of assessments more than eighteen months old – mother cross applies seeking departure on grounds of father’s income and capacity to earn – father declares income of $1.00 per week – capacity to earn – capacity to pay – father also seeks departure on the basis of high costs of spending time with children – special circumstances – just and equitable – otherwise proper.

Child Support (Assessment) Act1989, ss.111
Family Law Act 1975, ss.44, 117
Child Support (Registration & Collection) Act 1988, ss.4, 72D(1), 88, 98E, 110B, 111, 112, 114, 116, 117, 118

Briese & Briese (1986) FLC 91-713
Black & Kellner (1992) FLC 92-287
Savery and Savery (1990) FLC 92-131
In the Marriage of Gyselman (1992) 15 Fam LR 219
Whitford & Whitford (1979) FLC 90-612
Cantrell & Jennings [2009] FMCAfam 229

Applicant:

MR ONGAL

Respondent:

MS MATERNS

File Number:

ADC 2107 of 2007

Judgment of:

Brown FM

Hearing date:

19 November 2008

Date of Last Submission:

19 November 2008

Delivered at:

Adelaide

Delivered on:

15 May 2009

REPRESENTATION

Counsel for the Applicant:

In Person

Counsel for the Respondent:

Ms Lee

Solicitors for the Respondent:

Julie Margaret

ORDERS

The father’s application for leave pursuant to section 111 of the Child Support (Assessment) Act 1989 is dismissed.
The father’s amended application filed 12 November 2008 is dismissed.
There be a departure from the administrative assessment of child support payable to Ms Materns by Mr Ongal in respect of the children [X] born in 2001 and [Y] born in 2004 from 31 October 2008 until

31 December 2009 pursuant to which the father’s child support income is fixed at $60,000.00 per annum for the period in question.
The father pay the mother’s costs to be agreed between the parties and failing agreement to be taxed pursuant to the Federal Magistrates’ Court Rules.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
ADELAIDE

ADC 2107 of 2007

MR ONGAL

Applicant

And

MS MATERNS

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern the assessment of child support. The parties to the proceedings are Mr Ongal “the father” and Ms Materns “the mother”. They are the parents of [X] born in 2001 and [Y] born in 2004.
The father commenced the relevant round of proceedings on 24 April 2008. He has subsequently amended his application on two occasions since. There have been many other proceedings between the parties regarding care arrangements for [X] and [Y].
Pursuant to some consent orders made in the Family Court of Australia made at Adelaide on 27 February 2007, the children live predominantly with their mother and spend significant periods of time each fortnight, with their father.
The mother and…

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 Ongal and Materns

Details

AGLC: Ongal and Materns [2009] FMCAfam 476
Case: [2009] FMCAfam 476
Decision Date: 15 May 2009

CaseChat Overview and Summary

In the Family Court of Australia, the case of Ongal v Materns involved a dispute over child support payments. The father, Mr Ongal, sought to challenge the administrative assessment of child support payable to the mother, Ms Materns, for their two children, [X] born in 2001 and [Y] born in 2004. The court was required to determine whether the father's application for leave to depart from the administrative assessment and his subsequent amended application should be granted, and if so, the appropriate amount of child support payable.

The primary legal issue before the court was whether the father had sufficient grounds to depart from the administrative child support assessment, which had fixed his income at $60,000.00 per annum. The court examined the statutory provisions of the Child Support (Assessment) Act 1989, specifically section 111, which governs applications to depart from administrative assessments. The court also considered the merits of the father's amended application filed on 12 November 2008, assessing whether it provided adequate grounds to warrant a departure from the administrative assessment.

The court found that the father's application for leave under section 111 of the Act did not provide sufficient grounds to warrant a departure from the administrative assessment. The court further determined that the father's amended application did not sufficiently demonstrate the need for a departure. Consequently, the court dismissed both the father's application for leave and his amended application. However, the court made an order for a departure from the administrative assessment of child support payable by the father to the mother, fixing the father's child support income at $60,000.00 per annum for the specified period from 31 October 2008 until 31 December 2009. The father was also ordered to pay the mother's costs, which were to be agreed upon by the parties or, if no agreement was reached, taxed by the court.

Orders

Orders of the court

The father’s application for leave pursuant to section 111 of the Child Support (Assessment) Act 1989 is dismissed.

The father’s amended application filed 12 November 2008 is dismissed.

There be a departure from the administrative assessment of child support payable to Ms Materns by Mr Ongal in respect of the children [X] born in 2001 and [Y] born in 2004 from 31 October 2008 until

31 December 2009 pursuant to which the father’s child support income is fixed at $60,000.00 per annum for the period in question.

The father pay the mother’s costs to be agreed between the parties and failing agreement to be taxed pursuant to the

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.