Thurston & Loomis & Ors - [2018] FamCA 26

FAMILY COURT OF AUSTRALIA

THURSTON & LOOMIS AND ORS

[2018] FamCA 26

FAMILY LAW – PROPERTY – Where there has been a breakdown of the parties de facto relationship – Where there is a high level of disagreement between parties as to their financial contributions – Where the parties have contributed property into the relationship of relatively equal value – Where the parties have one child of the relationship – Where certain add-backs are considered appropriate to include –Where it is not just and equitable to consider parties’ contributions on an asset by asset basis – Where the parties have lost wealth and their primary remaining asset is their self-managed superannuation fund – Where justice and equity requires the parties’ interests to be adjusted – Where net property pool is to be divided 60 per cent to the Respondent and 40 per cent to the Applicant – Where the matter will be listed to hear final submissions that the Applicant, the Respondents and the Intervener may wish to make in respect of the precise wording of the final orders to be made in the property settlement proceedings so that the Court can be satisfied they give effect to the findings and determinations set out in these reasons for judgment in a just and equitable way.

FAMILY LAW – CHILD SUPPORT – ARREARS – DEPARTURE ORDERS – Where the Respondent has provided little assistance in the form of child support– Where the Respondent is likely to be in arrears – Where Applicant has had the principal responsibility of caring for the child since separation and will continue to have principal responsibility into the future–Where leave is granted pursuant to s 112 of the Child Support (Assessment) Act to allow for the Court to make an order pursuant to s 118 of the Child Support (Assessment) Act for any day in the period 1 July 2012 to 7 June 2014 – Where orders are made for the Respondent to make a child support contribution towards the financial support of his child.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Income Tax Assessment Act 1936 (Cth)

Browne v Green (1999) FLC 92-873
Cerini v Cerini [1998] FamCA 143
Chorn v Hopkins (2004) FLC 93-204; (2004) 32 Fam LR 518
Kowaliw and Kowaliw (1981) FLC 91-092
Marker v Marker [1998] FamCA 42
Omacini and Omacini (2005) FLC 93-218; (2005) 33 Fam LR 134
Stanford v Stanford (2012) 293 ALR 70

APPLICANT:

Ms Thurston

FIRST RESPONDENT:	Mr Loomis
SECOND RESPONDENT:	L Ltd

THIRD RESPONDENT:

C Pty Ltd

INTERVENER:

ML Lawyer

FILE NUMBER:

BRC

1010

2012

DATE DELIVERED:

25 January 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

7, 8, 9 & 10 December 2015

(Last submissions received 22 February 2017)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Baston (direct brief)

THE RESPONDENTS:

Mr Loomis in Person

INTERVENERS:

No appearance

Orders

That leave is granted pursuant to s 112 of the Child Support (Assessment) Act 1989 for…

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 Thurston & Loomis & Ors

Details

AGLC: Thurston & Loomis & Ors [2018] FamCA 26
Case: [2018] FamCA 26
Decision Date: 25 January 2018

CaseChat Overview and Summary

This matter concerned property settlement and child support proceedings between the Applicant and the First Respondent, following the breakdown of their de facto relationship. The parties had one child together and presented a high level of disagreement regarding their financial contributions to the relationship, which had involved the contribution of property of relatively equal value. The primary remaining asset for the parties was their self-managed superannuation fund, and the court noted a loss of wealth during the relationship. An intervener was also involved in the property settlement proceedings.

The court was required to determine how to divide the net property pool in a just and equitable manner, considering that it was not appropriate to assess contributions on an asset-by-asset basis. Additionally, the court needed to address child support arrears and make departure orders, given the First Respondent's limited assistance with child support and the Applicant's principal responsibility for the child's care since separation. Leave was sought and granted to make orders under section 118 of the Child Support (Assessment) Act 1989 for a specified period.

Forrest J reasoned that justice and equity necessitated an adjustment to the parties' interests in the property pool, ultimately ordering a division of 60 per cent to the Respondent and 40 per cent to the Applicant. In relation to child support, the court varied the annual rate payable by the father for the child, KK, to $3,333.20 for several child support periods between 2012 and 2018. For subsequent periods, the rate was to be determined by the normal administrative provisions, with specific income figures set for both parents.

The proceedings were adjourned for the court to hear final submissions on the precise wording of the property settlement orders to ensure they gave effect to the court's findings in a just and equitable way. Orders were also made for the parties to serve the sealed orders on the Child Support Registrar to calculate arrears and future payments, and to file an affidavit detailing these amounts.

Orders

Orders of the court

That leave is granted pursuant to s 112 of the Child Support (Assessment) Act 1989 for an order to be made under s 118 of that Act as between the Applicant mother and the First Respondent father in these proceedings for any day in the period 1 July 2012 to 7 June 2014.

That the annual rate of child support payable by the father in respect of the child, KK born … 2009, be varied to $3,333.20 in respect of each the following child support periods:

(a) From 1 July 2012 to 30 June 2013;

(b) From 1 July 2013 to 30 June 2014;

(d) From 1 July 2015 to 30 June 2016;

(e) From 1 July 2016 to 30 June 2017;

(f) From 1 July 2017 to 30 June 2018.

That the annual rate of child support payable by the father in respect of the child, KK born … 2009, for the child support period from 1 July 2018 to 30 June 2019 be varied and determined by applying the normal administrative provisions of the Child Support (Assessment) Act 1999, with the father’s child support income being set at $37,000 per annum and the mother’s child support income being set at $28,000.

That the rate of child support payable by the father to the mother thereafter is to be fixed in accordance with the normal administrative provisions of the Child Support (Assessment) Act 1989.

That any payments of child support previously made by the father in the period from 1 July 2012 to 30 June 2018 under the administrative assessment for child support then in force, be credited against the father’s liability for child support under the departure orders for that same period as specified in paragraph (2) hereof.

That the mother and the father shall each cause a copy of these sealed Orders to be served on the Child Support Registrar forthwith and request the Child Support Registrar to put these Orders into effect and to calculate the amount of arrears of child support, if any, now owing by the father in respect of the child, KK born … 2009, in addition to the annual amount of child support payable by the father pursuant to these orders from the date hereof until 30 June 2019. The mother and the father are then to file and serve as soon as possible an affidavit attaching a notice from the Child Support Registrar setting out the amount of arrears, if any, owing by the father as at the date hereof and the annual amount of child support payable by the father pursuant to these Orders from the date hereof until 30 June 2019.

That the proceedings are adjourned to a time and date to be fixed for the hearing of any further submissions that the Applicant, the Respondents and the Intervener may wish to make in respect of the precise wording of the final orders to be made in the property settlement proceedings so as to give effect to the findings and determinations set out in these reasons for judgment in a way that the Court can be satisfied is just and equitable.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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