S & D - [2005] FMCAfam 446

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & D

[2005] FMCAfam 446

CHILD SUPPORT – Departure application – income earning capacity – property and financial resources – complex financial affairs of respondent – lack of clear evidence as to respondent’s financial position or business dealings.

FAMILY LAW – Children’s issues – counselling to facilitate relationship of father with child – orders for child inclusive counselling.

Child Support (Assessment) Act 1989 (Cth), ss.116, 117(2)(c)

Cottle & Cottle [2005] FMCAfam 185
DJM v JML (1998) FLC ¶92-816
Gyselman & Gyselman (1992) FLC ¶92-279

Applicant:

Respondent:

File Number:

MLM 7077 of 2004

Judgment of:

Riethmuller FM

Hearing dates:

15 & 24 March 2005

Date of Last Submission:

14 April 2005

Delivered at:

Melbourne

Delivered on:

15 September 2005

REPRESENTATION

Counsel for the Applicant:

Mr Mawson

Solicitors for the Applicant:

Gavan J Black

Counsel for the Respondent:

Ms Colla

Solicitors for the Respondent:

Secombs

ORDERS

There be a departure from administrative assessment of child support for NJD payable by the respondent to the applicant as follows:
(a)from 4 January 2005 to 4 January 2008 the periodic rate of child support payable by the respondent be set at $80.00 per week; and
(b)then such rate to be adjusted on that date each year in accordance with any change in the Consumer Price Index for the preceding year.
Both parties forthwith do all things necessary to facilitate, attend and participate in confidential counselling at “Relationships Australia”, such counselling to include N.
The parties do comply with all reasonable directions as to attendance upon the Counsellor as and when required by the Counsellor for a period of 6 months from the date of this order.
That the husband forthwith provide to Relationships Australia a copy of the Family Report dated 3 March 2005 and a copy of these orders.
Both parties do share equally in the cost of the said counselling.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 7077 of 2004

Applicant

And

Respondent

REASONS FOR JUDGMENT

This is an application with respect to the child support payable for NJD. N lives with the applicant. There were also some limited children’s issues that were not able to be settled, which are dealt with at the end of this judgment.
The applicant seeks a departure from the current child support assessment based upon the income earning capacity, property and financial resources of the respondent to set the periodic child support rate at $250.00 per week from 27 July 2004.
The respondent also seeks a departure from the child support assessment, based upon his duty to maintain another child or person, and the income earning capacity, property and financial resources of the parties.
The respondent seeks departures from a number of child support assessment periods. In the respondent’s application he sought to have the parties’ child support income amounts set at various rates (from $32,855.00 to $35,000.00 per annum for him, and $75,000.00 to $78,500.00 per annum for the applicant).
At the hearing the…

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 S & D

Details

AGLC: S & D [2005] FMCAfam 446
Case: [2005] FMCAfam 446
Decision Date: 15 September 2005

CaseChat Overview and Summary

In the case of S & D, the applicant sought a departure from the administrative assessment of child support payable by the respondent for their child, NJD. The Family Court of Australia was tasked with determining the appropriate periodic rate of child support and other related issues. The legal issues before the court included the calculation of the child support payable by the respondent, the necessity of counselling for the parties, and the sharing of costs associated with such counselling.

The court considered the appropriate child support rate, taking into account the administrative assessment and the evidence presented by both parties. It was determined that the periodic rate of child support payable by the respondent to the applicant should be set at $80.00 per week from 4 January 2005 to 4 January 2008, with annual adjustments based on the Consumer Price Index. Furthermore, the court mandated that both parties participate in confidential counselling at Relationships Australia to address underlying issues in their relationship. The court also directed the parties to comply with reasonable directions from the counsellor for six months and share the costs of the counselling equally.

The court's reasoning was based on the need to ensure the best interests of the child, NJD, were prioritised. The decision to mandate counselling was aimed at facilitating communication and understanding between the parties, which would ultimately benefit the child. The court's orders were designed to provide a fair and reasonable outcome for both the child and the parties involved.

The final orders included setting the child support rate, mandating counselling, directing the sharing of counselling costs, and requiring the husband to provide relevant documents to the counsellor. These orders were made to ensure that the child's needs were met and that the parties engaged in a process to improve their relationship dynamics.

Orders

Orders of the court

There be a departure from administrative assessment of child support for NJD payable by the respondent to the applicant as follows:

(a) from 4 January 2005 to 4 January 2008 the periodic rate of child support payable by the respondent be set at $80.00 per week; and

(b) then such rate to be adjusted on that date each year in accordance with any change in the Consumer Price Index for the preceding year.

Both parties forthwith do all things necessary to facilitate, attend and participate in confidential counselling at “Relationships Australia”, such counselling to include N.

The parties do comply with all reasonable directions as to attendance upon the Counsellor as and when required by the Counsellor for a period of 6 months from the date of this order.

That the husband forthwith provide to Relationships Australia a copy of the Family Report dated 3 March 2005 and a copy of these orders.

Both parties do share equally in the cost of the said counselling.

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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