SYME & WROE - [2010] FMCAfam 247

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SYME & WROE

[2010] FMCAfam 247

FAMILY LAW – Property – what s.75(2) adjustments should be made where parties are of a similar age and income, with the father spending substantial time with the children.

CHILD SUPPORT – Special circumstances – lump sum payment.

Family Law Act 1975 ss.75(2), 79
Child Support (Assessment) Act 1989 ss.117, 125, 129, 130

Hickey & Hickey & Attorney-General of the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Norbis v Norbis (1986) 161 CLR 513
Syme & Wroe [2008] FMCAfam 536
Syme & Wroe [2009] FamCAFC 89

Applicant:

MR SYME

Respondent:

MS WROE

File Number:

SYC 3519 of 2007

Judgment of:

Altobelli FM

Hearing dates:

8-10 July, 17 August, 30 November 2009

Date of Last Submission:

30 November 2009

Delivered at:

Sydney

Delivered on:

18 March 2010

REPRESENTATION

Counsel for the Applicant:

Mr Richards

Solicitors for the Applicant:

Blanchfield Nicholls Partners

Counsel for the Respondent:

Mr Batey

Solicitors for the Respondent:

Maclarens Lawyers

ORDERS

That the wife pay to the husband, by way of property settlement, the sum of $150,372.00 within 28 days.
Order 8 of the orders dated 3 June 2008 be varied to read as follows:
“That pursuant to s.124 of the Child Support (Assessment) Act 1989 the husband pay to the wife 50 percent of the following expenses of the children relating to their attendance at [S] from 1 January 2010 until each child completes his secondary education:
(a)Tuition fees;
(b)Local excursion fees;
(c)Uniform costs including sports uniforms, school and sport shoes;
(d)Other compulsory expenses relating to the children’s attendance at the school;
(e)Extracurricular activities including costs of equipment required for those activities, provided that the parties have agreed in writing to the child enrolling in such extracurricular activity.”
That pursuant to s.125 of the Child Support (Assessment) Act 1984 the annual rate of child support payable by the husband pursuant to any assessment shall be reduced by the amounts paid by the husband pursuant to Order 2, and the annual rate of child support shall be reduced by 50 percent.
Except as provided for in these Orders, Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.
Parties have leave to relist as regards the interpretation, implementation and enforcement of these orders.

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

FEDERAL MAGISTRATES

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 SYME & WROE

Details

AGLC: SYME & WROE [2010] FMCAfam 247
Case: [2010] FMCAfam 247
Decision Date: 18 March 2010

CaseChat Overview and Summary

The case of Syme and Wroe involved a dispute between the parties regarding the division of their matrimonial assets and the payment of child support. The matter was heard in the Family Court of Australia. The central issue in the case was the determination of an appropriate property settlement and child support arrangement given the particular circumstances of the parties.

The court was tasked with deciding the appropriate adjustments to be made under section 75(2) of the Family Law Act 1975, particularly in light of the parties' similar ages and income levels, as well as the father's significant involvement in the children's upbringing. The court also had to determine whether any special circumstances existed that would warrant a deviation from the standard child support calculation, including the possibility of a lump sum payment.

In delivering its judgment, the court found that the husband should receive a property settlement of $150,372.00 from the wife. The court also varied the previous orders to require the husband to pay 50 percent of certain educational expenses for the children, as well as to reduce the annual child support payments by the amounts paid towards these expenses. Furthermore, the court reduced the husband's overall child support obligation by 50 percent. The court emphasised that each party was to retain ownership of their respective personal property, bank accounts, insurance policies, and superannuation entitlements.

The final orders of the court included specific directions regarding the property settlement, the payment of educational expenses, the reduction of child support payments, and the retention of personal property. The parties were granted leave to return to court for any matters concerning the interpretation, implementation, or enforcement of these orders.

Orders

Orders of the court

That the wife pay to the husband, by way of property settlement, the sum of $150,372.00 within 28 days.

Order 8 of the orders dated 3 June 2008 be varied to read as follows:

“That pursuant to s.124 of the Child Support (Assessment) Act 1989 the husband pay to the wife 50 percent of the following expenses of the children relating to their attendance at [S] from 1 January 2010 until each child completes his secondary education:

(a) Tuition fees;

(b) Local excursion fees;

(d) Other compulsory expenses relating to the children’s attendance at the school;

(e) Extracurricular activities including costs of equipment required for those activities, provided that the parties have agreed in writing to the child enrolling in such extracurricular activity.”

That pursuant to s.125 of the Child Support (Assessment) Act 1984 the annual rate of child support payable by the husband pursuant to any assessment shall be reduced by the amounts paid by the husband pursuant to Order 2, and the annual rate of child support shall be reduced by 50 percent.

Except as provided for in these Orders, Each party be solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the banks’ record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof and superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements.

Parties have leave to relist as regards the interpretation, implementation and enforcement of these orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.