Potter and Potter

[2004] FMCAfam 250

FEDERAL MAGISTRATES COURT OF AUSTRALIA

PHILLIPS & PHILLIPS [2004] FMCAfam 250

CHILD SUPPORT – Application for departure from a Child Support Agreement – whether there has been any significant changes in the parents’ means and/or the children’s needs since the agreement was entered into – what was reasonably anticipated by the parents at the time – whether the agreement created an unjust and inequitable obligation of financial support by the father.

Child Support (Assessment) Act 1989, s.117
Family Law Act1975, s.77A

Liu & Chen [2003] FMCAfam 322
Liesert v Nutsch (1996) FLC 92-665
Bryant (1996) FLC 92-690
Wild v Ballard (1997) FLC 92-771
Gilmour & Gilmour (1995) FLC 92-591

Applicant: MR PHILLIPS

Respondent: MS PHILLIPS

File No: BRM8705 of 2002

Delivered on: 28 May 2004

Delivered at: Brisbane

Hearing date: 25 June 2003

Judgment of: Baumann FM

REPRESENTATION

Counsel for the Applicant: Mr Kirk SC

Solicitors for the Applicant: Philippa Power Solicitor

Counsel for the Respondent: Mr Baston

Solicitors for the Respondent: Mitchell Lawyers

ORDERS

1. The Child Support Departure Application filed by the father on
   14 November 2002 be dismissed.

2. Any written submissions in respect of costs be filed and served within 14 days.

3. Any written submissions in response to the application for costs be filed and served within 14 days thereafter.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM8705 of 2002

MR PHILLIPS

Applicant

And

MS PHILLIPS

Respondent

REASONS FOR JUDGMENT

Introduction

1. By Child Support Agreement dated 30 January 2002 and subsequently registered with the Child Support Agency, the Applicant Father

   
   

   Mr Phillips and the respondent mother Ms Phillips, the parents agreed that the father would pay periodic Child Support for the three children of the marriage in :-

   “The total sum of $8,000 per calendar month (calculated at $2,666.67 per child per calendar month)”

2. Additionally the payment was to be reviewed annually and varied by reference to the CPI increases. Paragraph 4.2 of the Agreement further provided that the father:-

   “shall in addition pay all school fees for the children at the schools they are currently attending, or comparable schools”

3. The father’s application to the Court is for the Agreement to be discharged retrospectively from 1 July 2002, including any arrears, and that there be no payment for child support other than:-

   “(a)That each of the father and the mother shall fully support the children when in their care.

   (b)That the father pay all school fees and related educational costs.”

4. The mother opposes the application and seeks that it be dismissed with costs.

5. Each party was represented by Counsel and filed extensive material. Both parents were cross examined.

6. The grounds for the application do provide a choice summary of the father’s argument, namely:-

   “1.In the special circumstances of this case the provisions of the Agreement dated 30 January 2002 are an unjust and inequitable obligation of financial support, which…