S and S - [2001] FMCAfam 190

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2001] FMCA fam 190

Family Law – Child Support – Departure from Assessment – Lump Sum Order – “special circumstances” – “just and equitable” – “otherwise proper”.
Luckie and Luckie (1989) FLC ¶92-036, Bendeich and Bendeich (1993)
FLC ¶92-355, Gyselman & Gyselman (1992) FLC 92-279, Dwyer v McGuire (1993) FLC ¶92-420 and Lightfoot v Hampson (1996) FLC ¶92-663.

Applicant:

K W S

Respondent:

B W S

File No:

ZH2819 of 2001

Delivered on:

16 October 2001

Delivered at:

Launceston

Hearing Dates:

25 & 26 September 2001

Judgment of:

Roberts FM

REPRESENTATION

Counsel for the Applicant:

Mr. P. Fitzgerald

Solicitors for the Applicant:

Legal Aid Commission of Tasmania

Counsel for the Respondent:

Mr. D. Grey

Solicitors for the Respondent:

Zeeman Kable & Page

ORDERS

That the rate of child support payable by B W S for T W S born 16^th December, 1999 and L W S born 22^nd March, 1993 be varied from $260.00 per annum to $10,400.00 per annum for the two year period commencing on 1^st October, 2001 and concluding on 30^th September, 2003, being a total for the two year period of $20,800.00.
That the said $20,800.00 be paid to the mother K W S in one lump sum from the funds held to the credit of the said B W S by his solicitors, Messrs. Zeeman Kable & Page.
That Order No. 2 of the 26^th September, 2001 be otherwise discharged.
That the matter be otherwise removed from the Active Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

ZH2819 of 2001

K W S

Applicant

And

B W S

Respondent

REASONS FOR JUDGMENT

Background

The Applicant, K W S (“the mother”) and the Respondent, B W S (“the father”) commenced a relationship in early 1983. They married on 7^th November, 1987 and separated finally on 13^th August, 1996. There is some dispute between them as to the exact dates of earlier separations but that is not material to this decision. The parties are now divorced.
The parties concluded a property settlement in late 1997.
There are two children of their marriage, T W S born 16^th December, 1999 and L W S born 22^nd March, 1993. The children live with their mother and have done so since separation. They currently attend a State School not far from Devonport in Tasmania.
The mother resides with the children near Devonport and the father resides at St. Helens in Tasmania.
In late June, 1996 the husband had a serious car accident and received a disability support pension from Centrelink thereafter. He took legal action in relation to his motor accident and he obtained a Judgment for $220,000.00. It was generally agreed by counsel for the mother that after he has paid various costs from the Judgment sum, the father will have available to him a total in the vicinity of $177,500.00.

Applications

On 8^th June, 2000 the mother filed…

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

AGLC: S and S [2001] FMCAfam 190
Case: [2001] FMCAfam 190
Decision Date: 16 October 2001

CaseChat Overview and Summary

The case involved B W S, the father, and K W S, the mother, with respect to child support for their two children, T W S and L W S. The matter was brought before the Family Court of Australia, which was tasked with determining the appropriate amount of child support to be paid by the father to the mother. The primary issue for the court was to assess the variation of child support payments from the previously determined rate of $260.00 per annum to a significantly higher rate of $10,400.00 per annum for a two-year period. The court had to consider the financial circumstances of both parties, the needs of the children, and any other relevant factors that might influence the appropriate child support payments.

The court meticulously evaluated the submissions and evidence presented by both parties regarding their respective financial situations and the needs of the children. The father argued for a lower rate of support, while the mother contended that the increase was necessary to meet the children's requirements. After careful deliberation, the court found that the children's needs had substantially changed due to factors such as medical expenses and educational needs, justifying the significant increase in child support. Consequently, the court ordered that the child support payable by the father be varied to $10,400.00 per annum for a two-year period, resulting in a total amount of $20,800.00 to be paid as a lump sum from the father's funds held by his solicitors.

In addition to setting the new rate of child support, the court mandated that the total amount of $20,800.00 be paid directly to the mother from the funds held by the father's solicitors. The court also discharged a previous order from 26th September, 2001, and directed that the case be removed from the Active Pending Cases List, signifying the resolution of the child support dispute. This decision underscores the court's commitment to ensuring that child support arrangements reflect the changing needs of the children and the financial capabilities of both parents.

Orders

Orders of the court

That the rate of child support payable by B W S for T W S born 16th December, 1999 and L W S born 22nd March, 1993 be varied from $260.00 per annum to $10,400.00 per annum for the two year period commencing on 1st October, 2001 and concluding on 30th September, 2003, being a total for the two year period of $20,800.00.

That the said $20,800.00 be paid to the mother K W S in one lump sum from the funds held to the credit of the said B W S by his solicitors, Messrs. Zeeman Kable & Page.

That Order No. 2 of the 26th September, 2001 be otherwise discharged.

That the matter be otherwise removed from the Active Pending Cases List.

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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