SKINNER & CLUNY - [2013] FamCA 301

FAMILY COURT OF AUSTRALIA

SKINNER & CLUNY

[2013] FamCA 301

FAMILY LAW – CHILD SUPPORT – Where Wife seeks a child support departure Order – s 117 Child Support Assessment Act 1989 (Cth) – Gyselman and Gyselman (1992) 15 Fam LR 219 – Richardson & Older (No. 2) [2008] FamCA 512 – Where current child support payment liabilities in respect of the Husband have been assessed as nil – Non-disclosure of the Husband’s financial circumstances – Where Husband found to have capacity to earn $250,000 per annum – Where Husband found to have access to financial resources – Departure allowed – Periodic child support payments ordered.

FAMILY LAW – CHILD SUPPORT – Where Wife seeks an order for retrospective child support – s 114 Child Support Assessment Act 1989 (Cth) – Where Father found to have had capacity to pay payments during period in question – Lump sum of retrospective child support ordered for the relevant period.

FAMILY LAW – SPOUSAL MAINTENANCE – Where Wife seeks an order for spousal maintenance – s 74 Family Law Act 1975 (Cth) – Bevan and Bevan (1995) FLC 92-600 – DJM v JLM (1998) FLC 92-816 distinguished – Where Wife’s list of needs not reasonable – Order made for periodic spousal maintenance payments until either the child commences school in 2015 or when the Wife commences full-time employment, whichever is the earlier.

FAMILY LAW – SPOUSAL MAINTENANCE – Where Wife seeks an order for retrospective spousal maintenance – Milenkov & Milenkov (2002) FLC 93-095 – Where Wife established a need for maintenance during the identified period – Where the Husband found to have had the means to pay maintenance during the identified period – Lump sum of retrospective spousal maintenance ordered for the relevant period.

FAMILY LAW – PROCEDURAL – Where Wife seeks enforcement of child support arrears and spousal maintenance arrears – Where Wife seeks enforcement of arrears in respect of Order for costs made against the Husband in previous proceedings – s 105 Family Law Act 1975 (Cth) – Enforcement order made.

APPLICANT:

Mr Skinner

RESPONDENT:

Ms Cluny

FILE NUMBER:

BRC

812

2010

DATE DELIVERED:

16 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

3, 4 September 2013; 17 January 2013; and 21 March 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

The Applicant Husband appearing in person

COUNSEL FOR THE RESPONDENT:

The Respondent Wife appearing in person

Orders

There be a departure from the administrative assessment of child support payable by the Husband to the Wife in respect of the child, B born on … August 2009.
Pursuant to sections 117 and 118 of the Child Support (Assessment) Act (Cth), the weekly rate of child support payable by the Husband in respect of the child be fixed at $665, commencing 22 April 2013.
Pursuant to section 114(h) of the Child Support (Assessment) Act (Cth), by way of retrospective child support, for the period 1 February 2011 to 13 June 2011, the Husband shall pay to…

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: SKINNER & CLUNY [2013] FamCA 301
Case: [2013] FamCA 301
Decision Date: 16 April 2013

CaseChat Overview and Summary

In proceedings before Bell J, the wife sought various orders concerning child support, spousal maintenance, and the enforcement of existing orders. The primary dispute involved a departure from the administrative assessment of child support, where the husband's current liabilities were assessed as nil. The wife also sought retrospective child support and spousal maintenance, as well as the enforcement of arrears relating to child support, spousal maintenance, and costs orders made in previous proceedings.

The court was required to determine whether to grant a departure from the child support assessment under s 117 of the *Child Support (Assessment) Act 1989* (Cth), considering the husband's non-disclosure of his financial circumstances and his assessed capacity to earn $250,000 per annum and access to financial resources. Additionally, the court had to consider an order for retrospective child support under s 114 of the Act, and orders for periodic and retrospective spousal maintenance under s 74 of the *Family Law Act 1975* (Cth). Finally, the court was asked to make orders for the enforcement of various arrears pursuant to s 105 of the *Family Law Act 1975* (Cth).

Bell J allowed the departure from the child support assessment, finding the husband had the capacity to pay. The court ordered periodic child support payments of $665 per week, commencing from 22 April 2013, and a lump sum of $11,970 plus interest for retrospective child support for the period 1 February 2011 to 13 June 2011. The husband and wife were ordered to share equally in the child's educational expenses. For spousal maintenance, the husband was ordered to pay $350 per week until the child commenced school in 2015 or the wife commenced full-time employment, whichever was earlier. A lump sum of $31,500 plus interest was ordered for retrospective spousal maintenance for the period 20 September 2009 to 13 June 2011. The court also made enforcement orders for significant arrears totalling $76,321.08 plus interest, and further arrears from previous orders, with a deadline of 31 December 2013 for payment of these lump sums.

Orders

Orders of the court

There be a departure from the administrative assessment of child support payable by the Husband to the Wife in respect of the child, B born on … August 2009.

Pursuant to sections 117 and 118 of the Child Support (Assessment) Act (Cth), the weekly rate of child support payable by the Husband in respect of the child be fixed at $665, commencing 22 April 2013.

Pursuant to section 114(h) of the Child Support (Assessment) Act (Cth), by way of retrospective child support, for the period 1 February 2011 to 13 June 2011, the Husband shall pay to the Wife, in respect of the child, the sum of $11,970 plus interest pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004.

The Husband and Wife shall share equally in the costs of the child’s educational expenses, including but not limited to, school fees, compulsory uniforms, books and materials, excursions and extra-curricular activities up until the child reaches the age of 18 years of age.

By way of spousal maintenance, the Husband shall pay to the Wife, by depositing into a bank account nominated in writing by her, the sum of $350 each week commencing 22 April 2013, until either the child commences school in 2015 or the Wife commences full-time employment, whichever is the earlier date.

By way of retrospective spousal maintenance, being for the period

20 September 2009 to 13 June 2011, the Husband shall pay to the Wife, by depositing into a bank account nominated in writing by her, the sum of $31,500 plus interest pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004.

Pursuant to section 105 of the Family Law Act 1975 (Cth), the Husband pay to the Wife, arrears payable under Orders (2), (4) and (6) of the Order of Justice Murphy made 14 June 2011, being the amount of $76,321.08 plus interest, pursuant to section 117B of the Family Law Act 1975 (Cth) and Reg 17.03 of the Family Law Rules 2004, to a bank account nominated in writing by the Wife.

Pursuant to section 105 of the Family Law Act 1975 (Cth), the Husband pay to the Wife, arrears payable under Order (3) of the Order of Justice Young made

3 June 2011, plus interest payable in the amount prescribed in Order (4) of the Order of Justice Young made 3 June 2011.

The payment of Orders (3), (6), (7) and (8) hereof are to be paid by the Husband to the Wife by close of business on 31 December 2013, into a bank account nominated by the Wife in writing.

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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