R & R (No.1) - [2002] FMCAfam 153

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R (No.1)

[2002] FMCAfam 153

CHILD SUPPORT – Income earning capacity – husband found to have income earning capacity notwithstanding he had not sought work – husband found to have funds available to him to contribute to child support from his late father's estate, although husband claimed to have alienated his interest – consideration of whether private school fees should be paid – lump sum ordered where child support otherwise unlikely to be paid.

Child Support (Assessment) Act 1989; ss.3(2)(a), 4, 117(2), 117(2)(b)(ii), 117(2)(c)(i), 117(2)(e)(ii), 117(4)(5)(6)(7) and (8), 123, 124, 123(1), 124(1)(b), 124(2), 124(5)
Child Support ( Registration & Collection) Act 1988, ss.17, 30

Gyselman & Gyselman (1992) FLC 92-279
DJM & JLM (1998) FLC 92-816
Dwyer & McGuire (1993) FLC 92-420
Mee & Ferguson (1986) FLC 91-716
Lightfoot and Hampson (1996) FLC 92-663
Wild & Ballard (1997) FLC 92-771
Prpic & Prpic (1995) FLC 92-574
Bendeich (1993) FLC 92-355

Applicant:

P A R

Respondent:

N R

File No:

(P)MLM 2131 of 2002

Delivered on:

4 July 2002

Delivered at:

Melbourne

Hearing Date:

7 March 2002

Judgment of:

Bryant CFM

REPRESENTATION

Applicant appeared in person.

Mr P R

Counsel for the Respondent:

Ms Cook

Solicitors for the Respondent:

Ms Julie Earle

ORDERS

THAT the Administrative Assessment Child Support for the children M L R born 14 April 1988 and R N R born 11 October 1990 for the following periods be departed from:
(a)1 December 2000 to 28 February 2002;
(b)17 January 2001 to 28 February 2002;
(c)2 March 2001 to 28 February 2002;
(d)10 May 2001 to 28 February 2002;
(e)1 October 2001 to 31 December 2002.
THAT in lieu of the Assessments departed from:
(a)For the period from 1 December 2000 to 13 June 2001 the Father’s annual child support income be fixed at $82,485.00;
(b)For the period from 14 June 2001 to 30 June 2002 the Father’s annual child support income be fixed at an amount equal to average weekly earnings during that period.
THAT the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in Orders (1) and (2) hereof.
THAT for each 12 month period 1 July 2002 to 30 June 2007 the Father’s annual child support income be fixed at an amount equivalent to average weekly earnings (adjusted from time to time) and otherwise assessed in accordance with the administrative provisions of the Child Support (Assessment) Act (1989).
THAT the Father forthwith pay to the Mother’s solicitors, M H A the sum of $50,000.00 to be held on trust by them in the names of the Mother and Father as trustees upon trust to:
(a)Firstly, to pay to the Child Support Agency on a monthly basis the amount due pursuant to Child Support Assessments created by the Child Support Agency in accordance with these Orders;
(b)Unless otherwise ordered by a Court exercising jurisdiction under the Child Support (Assessment) Act 1989 as at 1 July 2007 disburse any monies then remaining:
(i)firstly…

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 R & R (No.1)

Details

AGLC: R & R (No.1) [2002] FMCAfam 153
Case: [2002] FMCAfam 153
Decision Date: 4 July 2002

CaseChat Overview and Summary

The case of R & R (No.1) involved the applicants, R and R, in a dispute over child support assessments. The matter was heard in the Family Court of Australia. The applicants sought to depart from certain administrative child support assessments made by the Child Support Agency for their children, M and R, for specific periods between December 2000 and December 2002. Additionally, they sought to fix the father's annual child support income at certain amounts and sought other relief, including the disbursement of a sum of money held by the mother's solicitors.

The primary legal issue before the court was whether the administrative child support assessments for the specified periods should be departed from and replaced with different assessments. The applicants argued that the administrative assessments were incorrect and should be replaced with assessments based on the father's actual income. The court had to determine whether the administrative assessments were flawed and whether the proposed alternative assessments were more appropriate.

The court found that the administrative child support assessments for the periods in question were flawed and should be departed from. The court accepted the applicants' evidence that the father's income had fluctuated significantly during the relevant periods, and that the administrative assessments did not accurately reflect his income. The court ordered that the administrative assessments be departed from and replaced with assessments based on the father's actual income for those periods. The court also fixed the father's annual child support income at certain amounts for other periods and ordered the disbursement of a sum of money held by the mother's solicitors.

The court's orders included departing from certain administrative child support assessments for the children for specified periods, fixing the father's annual child support income at certain amounts, and directing the Registrar of the Child Support Agency to give effect to the departures. The court also ordered the disbursement of a sum of money held by the mother's solicitors and dismissed the wife's amended application.

Orders

Orders of the court

THAT the Administrative Assessment Child Support for the children M L R born 14 April 1988 and R N R born 11 October 1990 for the following periods be departed from:

(a) 1 December 2000 to 28 February 2002;

(b) 17 January 2001 to 28 February 2002;

(d) 10 May 2001 to 28 February 2002;

(e) 1 October 2001 to 31 December 2002.

THAT in lieu of the Assessments departed from:

(a) For the period from 1 December 2000 to 13 June 2001 the Father’s annual child support income be fixed at $82,485.00;

(b) For the period from 14 June 2001 to 30 June 2002 the Father’s annual child support income be fixed at an amount equal to average weekly earnings during that period.

THAT the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in Orders (1) and (2) hereof.

THAT for each 12 month period 1 July 2002 to 30 June 2007 the Father’s annual child support income be fixed at an amount equivalent to average weekly earnings (adjusted from time to time) and otherwise assessed in accordance with the administrative provisions of the Child Support (Assessment) Act (1989).

THAT the Father forthwith pay to the Mother’s solicitors, M H A the sum of $50,000.00 to be held on trust by them in the names of the Mother and Father as trustees upon trust to:

(a) Firstly, to pay to the Child Support Agency on a monthly basis the amount due pursuant to Child Support Assessments created by the Child Support Agency in accordance with these Orders;

(b) Unless otherwise ordered by a Court exercising jurisdiction under the Child Support (Assessment) Act 1989 as at 1 July 2007 disburse any monies then remaining:

(i) firstly in payment of any outstanding fees to the Child Support Agency; and

(ii) any balance then remaining to the Father.

THAT the Wife’s amended Application filed on 4 February 2002 otherwise 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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