S & S - [2005] FMCAfam 78

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S & S

[2005] FMCAfam 78

CHILD SUPPORT – Agreements – departure from agreement – change in circumstances – relevant considerations – change in income – change in contact arrangements.

CHILD SUPPORT – Agreements – departure from agreement – special circumstances – income and earning capacity – change in employment – reduction in hours worked – ‘lifestyle change’ – whether applicant has opportunity to exercise earning capacity.

CHILD SUPPORT – Agreements – departure from agreement – special circumstances – change in care arrangements – whether change sufficient to demonstrate a ‘special circumstance’.

Child Support (Assessment) Act 1989, ss.4, 98, 117, 141

Bryant & Bryant (1996) FLC ¶92-690
DJM v JLM (1998) FLC ¶92-816
Gilmore & Gilmore (1995) FLC ¶92-591
Gyselman & Gyselman (1992) FLC ¶92-279
Ross & McDermott (1998) FLC ¶98-003

Applicant:

RWS

Respondent:

NJS

File Number:

MLM 3280 of 2003

Judgment of:

Riethmuller FM

Hearing dates:

14 October & 10 December 2004

Last Submission:

23 December 2004

Delivered at:

Melbourne

Delivered on:

3 March 2005

REPRESENTATION

Counsel for the Applicant:

Mr Ham

Solicitors for the Applicant:

Westminster Lawyers

Counsel for the Respondent:

Mr Cronin

Solicitors for the Respondent:

Marshalls & Dent

ORDERS

That the husband’s application filed 5 April 2004 be dismissed.
That costs be reserved and adjourned to 29 March 2005.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3280 of 2003

RWS

Applicant

And

NJS

Respondent

REASONS FOR JUDGMENT

The applicant applies to vary or discharge a child support agreement entered into with the respondent on 26 September 2002.
The parties have three children, EVS born 1996, ZCS born 1998 and SAS born 1999.
The parties married on 18 May 1990 and separated on 27 March 2002 (remaining under the same roof until 7 May 2002). The child support agreement was entered into on the same date as consent orders were made with respect to division of property, 26 September 2002. The child support agreement provides, inter alia:
2.1 The father will pay or cause to be paid for the support of the children the sum of $200 per child per week, being $600 per week and being $31,200 per annum.
2.2 The mother will meet all of the expenses of the children, including but not limited to, all private school and pre-school (of any kind) education costs, including but not limited to fees, uniforms, books, and all extra curricular expenses, all nannies expenses for any nanny arranged by the wife and all expenses related to sporting and musical activities arranged by the wife.
2.3 The family medical cover is to be maintained in the current form until the renewal due in April 2003, at which time the wife shall take out separate cover for herself and the children.
2.4 The child support will be paid to the mother, payable monthly in advance on or before the 27th day of each month, by direct debit into an account nominated by the mother or as otherwise agreed between the parties, 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 & S

Details

AGLC: S & S [2005] FMCAfam 78
Case: [2005] FMCAfam 78
Decision Date: 3 March 2005

CaseChat Overview and Summary

The matter involved the parties, S and S, concerning a child support agreement that had been entered into under the Child Support (Assessment) Act 1989. The husband sought a departure from the existing agreement, arguing that there had been a significant change in circumstances, including alterations to the contact arrangements and a reduction in his income. The case was heard by the Family Court of Australia.

The primary legal issues before the court were whether the husband's application for a departure from the child support agreement was justified and what factors should be considered in determining the appropriate amount of child support. Specifically, the court needed to evaluate the husband's reduction in income and hours worked, the change in care arrangements, and whether these constituted special circumstances warranting a departure from the agreement.

In assessing the husband's application, the court considered the relevant legislative provisions and the established principles for varying child support agreements. The court found that the husband's reduction in income and hours worked did not, in itself, constitute a special circumstance warranting a departure from the agreement. Furthermore, the change in care arrangements, which involved a reduction in the time the child spent with the husband, did not meet the threshold for a special circumstance. Consequently, the court dismissed the husband's application for a departure from the child support agreement. The court also reserved the matter of costs and adjourned it to a later date.

The orders made by the court were that the husband's application filed on 5 April 2004 be dismissed and that the matter of costs be reserved and adjourned to 29 March 2005.

Orders

Orders of the court

That the husband’s application filed 5 April 2004 be dismissed.

That costs be reserved and adjourned to 29 March 2005.

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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