Shaw and Shaw - [2010] FMCAfam 1535

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SHAW & SHAW

[2010] FMCAfam 1535

CHILD SUPPORT – Application for child support in a form other than periodic payment – application for departure – costs.

Child Support (Assessment) Act 1989, ss.3, 4, 100, 116, 117, 123, 124, 125

Family Law Act 1975, s.117
Federal Magistrates Court Rules 2001 – Schedule 1
Declaration of Human Rights 1948

McGuiness & Cowie [2002] FamCA 461
Mee & Ferguson (1986) FLC 91-716
Lightfoot & Hampson (1996) FLC 92-663
Wild & Ballard (1997) FLC 92-771
DJM & JLM (1998) FLC 92-816
C & G [2002] FMCAfam 361
Hardman & Hardman [2003] FamCA 1057
Carlson & Acuff & Anor [2010] FMCAfam 677
Prpic & Prpic (1995) FLC 92-574
Parrish & Torrey [2009] FMCAfam 274
Bendeich (1993) FLC 92-355
Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225

Applicant:

MS SHAW

Respondent:

MR SHAW

File Number:

SYC 1040 of 2009

Judgment of:

Harman FM

Hearing date:

18 August 2010

Date of Last Submission:

18 August 2010

Delivered at:

Parramatta

Delivered on:

18 August 2010

REPRESENTATION

Counsel for the Respondent:

Mr Givney

Solicitors for the Respondent:

McLaughlin & Riordan

ORDERS

That the application of Ms Shaw filed 8 March 2010 is dismissed.
All issues are removed from the list of cases awaiting hearing.
The wife shall pay the husband’s costs of these proceedings in the sum of $10,350 such cost to be paid within six months of today’s date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 1040 of 2009

MS SHAW

Applicant

And

MR SHAW

Respondent

REASONS FOR JUDGMENT

These are proceedings involving competing applications under the Child Support (Assessment) Act 1989.
The proceedings were commenced by Ms Shaw by application filed 8 March 2010. A Response has been filed.
Prior to these proceedings the parties have otherwise been engaged in proceedings before the Sydney Registry of the Court with respect to issues of property adjustment, and final orders were made in those proceedings by Altobelli FM on 7 December 2009, those orders ultimately being made by consent but having been made at the commencement of a scheduled two-day trial. Those orders precede these proceedings by some four months and have some other, greater connection to which I will return.

Jurisdiction

The application that is commenced by Ms Shaw seeks relief in two respects. Whilst it is not spelt out by reference to relevant sections of the legislation, from the terms of the orders sought it is clear that an application is made under s.123 of the Act for the provision of child support in a form other than periodic payment and that in aid of that, it is sought, utilising s.116, to bring an application for departure under s.117 of the Act.
The later issue was addressed at the commencement of the hearing. An application for departure is ordinarily not dealt…

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 Shaw and Shaw

Details

AGLC: Shaw and Shaw [2010] FMCAfam 1535
Case: [2010] FMCAfam 1535
Decision Date

CaseChat Overview and Summary

The case involves proceedings under the Child Support (Assessment) Act 1989, with Ms Shaw applying for child support in a form other than periodic payment, specifically a lump sum, and an application for departure from the administrative assessment. The application was heard in the Federal Magistrates Court of Australia, presided over by Harman FM. The central issue was whether the court should depart from the administrative assessment to order a lump sum payment of child support or make any departure at all under s.117 of the Act.

The court considered whether the application was properly before it and whether the application for a lump sum or departure was just and equitable and otherwise proper. The court found that the application for a lump sum or departure was not just and equitable, nor otherwise proper. The court held that the administrative assessment should stand, as it was not appropriate to order a lump sum payment that would substantially erode one parent's resources. The court also dismissed the application for a departure from the administrative assessment.

In conclusion, the court dismissed Ms Shaw's application for child support in a form other than periodic payment and for departure from the administrative assessment. The court ordered that Ms Shaw pay Mr Shaw's costs of $10,350 within six months. The court also discharged all prior orders in the proceedings.

Orders