PLD and CD - [2004] FMCAfam 518

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PLD & CD

[2004] FMCAfam 518

CHILD SUPPORT – Administrative assessment – departure application – over 18 child maintenance – child attending university.

Family Law Act 1975
Child Support (Assessment) Act 1989
Child Support (Registration & Collection) Act 1988

Lindsey & Lindsey (1995) FLC 92-638
Roche & Glenn (2002) FLC 93-123
Gyselman (1992) FLC 92-279
DJM v JLM (1998) FLC 92-816
Weir v Weir (1993) FLC 92-338
Black v Kellner (1992) FLC 92-287
Jenkins v Livesey (1985) 1 All ER 106
Jones v Dunkel (1959) 101 CLR
Ghazal v GIO (NSW) (1992) NSWLR 336
Luton v Lessels (2002) 76 ALJR 635
Oliver v Oliver (1977) FLC 90-227
In the Marriage of Cosgrove (1995) 20 FamLR 751

Applicant:

P L D

Respondent:

C D

File No:

PAM3937 of 2003

Delivered on:

19 October 2004

Delivered at:

Parramatta

Hearing date:

9 September 2004

Judgment of:

Ryan FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Mr D. Dura

Solicitors for the Respondent:

Browns The Family Lawyers

ORDERS

The applicant P L D’s (the applicant father) departure application is dismissed.
The respondent C D’s (the respondent mother) departure application filed 11 May 2004 is dismissed.
Pursuant to s.66L that P L D (the applicant father) pay child maintenance for David in the sum of $200 per week for so long as David is studying full time and he completes a Bachelor of Horticulture degree or such other first bachelor degree as he may transfer to.
The child maintenance pursuant to order (3) above commences operation on 20 May 2004. The applicant father shall pay the arrears due for the period 20 May 2004 until the date of these orders within twenty-eight (28) days.
The applicant father shall pay the child maintenance payable from the date of these orders each week into an account nominated by the respondent mother. The first periodic payment shall be made seven days after the date of these orders and each week thereafter.
For the purpose of order (3) the child, David, will complete his education on the day upon which a university advises he that he has completed all necessary requirements for conferral of a bachelor degree.
Excluding any application for costs all outstanding applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM3937 of 2003

P D

Applicant

And

C D

Respondent

REASONS FOR JUDGMENT

Introduction

This litigation started when the Child Support Registrar filed an enforcement summons in the Local Court Family Matters on 26 August 2003 seeking to recover $20,446.37 arrears allegedly owed by P D (the applicant father) to the Commonwealth. The applicant then commenced these proceedings when on 19 September 2003 he filed an application in this court for a departure order from an administrative assessment of child support. Collection is currently stayed pending determination of these proceedings.
In his application the applicant challenges the assessments covering the periods 1 May 2000 to 31 March 2001 inclusive and 1 April 2001 to

20 May 2004 “or…

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 PLD and CD

Details

AGLC: PLD and CD [2004] FMCAfam 518
Case: [2004] FMCAfam 518
Decision Date: 19 October 2004

CaseChat Overview and Summary

In the case of PLD and CD, the Family Court of Australia was tasked with making decisions regarding the care and support of a child named David. The applicant father, PLD, sought to leave the jurisdiction, while the respondent mother, CD, filed a departure application on 11 May 2004. The court was required to decide on these departure applications and to determine the appropriate child maintenance payments for David, who was studying a Bachelor of Horticulture degree at the time. Additionally, the court had to specify the commencement date of these payments and the method of payment, as well as define the conditions under which the child's education would be considered complete for the purpose of the maintenance order.

The court dismissed both departure applications filed by the parties, determining that neither the father nor the mother should leave the jurisdiction. In terms of child maintenance, the court ordered that PLD pay $200 per week to CD for the duration of David's full-time studies and until he completed a Bachelor of Horticulture degree or an equivalent first bachelor degree. The maintenance payments were to begin on 20 May 2004, with arrears to be settled within twenty-eight days from the date of the order. The payments were to be made weekly into an account nominated by CD, with the first payment due seven days after the court's order. The court also clarified that David's education would be deemed complete when a university notified him that he had fulfilled all requirements for the conferral of a bachelor degree. Finally, all other outstanding applications were dismissed, with no application for costs being entertained.

In summary, the Family Court of Australia dismissed both the father's and mother's applications to leave the jurisdiction. The court mandated specific child maintenance payments from the father to the mother for the duration of David's full-time studies and until he completed his degree. The court also outlined the commencement date of these payments, the method of payment, and the criteria for determining the completion of David's education. All other applications were dismissed, and no costs were awarded.

Orders

Orders of the court

The applicant P L D’s (the applicant father) departure application is dismissed.

The respondent C D’s (the respondent mother) departure application filed 11 May 2004 is dismissed.

Pursuant to s.66L that P L D (the applicant father) pay child maintenance for David in the sum of $200 per week for so long as David is studying full time and he completes a Bachelor of Horticulture degree or such other first bachelor degree as he may transfer to.

The child maintenance pursuant to order (3) above commences operation on 20 May 2004. The applicant father shall pay the arrears due for the period 20 May 2004 until the date of these orders within twenty-eight (28) days.

The applicant father shall pay the child maintenance payable from the date of these orders each week into an account nominated by the respondent mother. The first periodic payment shall be made seven days after the date of these orders and each week thereafter.

For the purpose of order (3) the child, David, will complete his education on the day upon which a university advises he that he has completed all necessary requirements for conferral of a bachelor degree.

Excluding any application for costs all outstanding applications are 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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