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 | of | 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…
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- AGLC
- Thurston & Loomis & Ors [2018] FamCA 26
- Case
- [2018] FamCA 26
- Decision Date
CaseChat Overview and Summary
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
1.
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.
2.
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;
(c) From 1 July 2014 to 30 June 2015;
(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.
3.
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.
4.
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.
5.
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.
6.
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.
7.
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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