Toms and Toms - [2004] FMCAfam 688

FEDERAL MAGISTRATES COURT OF AUSTRALIA

T & T

[2004] FMCAfam 688

CHILD SUPPORT – Agreements – variation – whether circumstances contemplated by agreement – agreement providing for rate per child – change of residence of one of two children.

CHILD SUPPORT – Agreements – variation – change of circumstances – whether threshold issue changed a circumstance – proper approach.

Child Support (Assessment) Act 1989, ss.117, 98

Bassingthwaite & Leane (1993) FLC ¶92-410
Bryant & Bryant (1996) FLC ¶92-690
Gilmore & Gilmore (1995) FLC ¶92-591
Gyselman & Gyselman (1992) FLC ¶92-279
Hides & Hatton (1997) FLC ¶92-759
Humphries & Humphries (1993) FLC ¶92-430

Phillips & Phillips [2004] FMCAfam 250
Ross & McDermott (1998) FLC ¶98-003

Applicant:

MR T

Respondent:

MS T

File Number:

BRM5627 of 2002

Judgment of:

Riethmuller FM

Hearing dates:

5 August & 24 September 2004

Date of Last Submission:

15 October 2004

Delivered at:

Townsville

Delivered on:

29 October 2004

REPRESENTATION

Counsel for the Applicant:

Ms Hogan

Solicitors for the Applicant:

Barry & Nilsson

Counsel for the Respondent:

Mr Dearne

Solicitors for the Respondent:

McCullough Robertson

ORDERS

The provisions of the child support agreement of 20 November 2000 be varied by deleting clauses 4.3.1 and 4.4.
Any arrears of child support payable pursuant to clause 4.3.1 of the child support agreement of 20 November 2000 be discharged.
The wife’s enforcement summons of 3 March 2004 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym T & T [2004] FMCAfam 688 is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
TOWNSVILLE

BRM5627 of 2002

MR T

Applicant

And

MS T

Respondent

REASONS FOR JUDGMENT

The applicant husband seeks orders altering or effecting the discharge of a child support agreement signed on 20 November 2000 and consequential orders. The precise orders he seeks are set out in his application filed 30 April 2004 in the following terms:
1.That the child support agreement signed by the parties on 20 November 2000 be discharged.
2.That both parties pay child support for both B and R in accordance with the provisions for administrative assessment of child support in the Child Support (Assessment) Act 1989.
3.That any arrears currently outstanding pursuant to the child support agreement dated 20 November 2000 be discharged.
4.That the enforcement summons filed by the Mother on 3 March 2004 be dismissed.
5.Any other or further order as this Honourable Court deems necessary.
6.That the Mother pay for the costs of and incidental to this application.
The respondent wife in her response seeks orders in these terms:
1.That the Child Support Agreement dated 20 November 2000 be varied so as to discharge any provision made for B (born [in] 1987).
2.That the Applicant Father’s application filed 30 April 2004 be dismissed.
3.That there be a garnishment order against the Applicant’s employers attaching to the earnings of the Applicant.
4.Such further or other Order as this Honourable…

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 Toms and Toms

Details

AGLC: Toms and Toms [2004] FMCAfam 688
Case: [2004] FMCAfam 688
Decision Date: 29 October 2004

CaseChat Overview and Summary

The case of Toms and Toms was heard in the Family Court of Australia. The parties involved were a husband and wife who had entered into a child support agreement on 20 November 2000. The wife subsequently brought an enforcement summons against the husband on 3 March 2004, seeking to enforce certain provisions of the child support agreement. The husband responded by seeking a variation of the child support agreement and the discharge of any arrears of child support payable under the agreement. The central legal issue before the court was whether the wife's enforcement summons should be dismissed and whether the child support agreement should be varied and any arrears discharged. The court considered the relevant statutory framework and the circumstances of the case before making its decision.

The court found that the wife's enforcement summons should be dismissed and that the child support agreement should be varied by deleting certain clauses. The court held that the wife had failed to establish that the husband had breached the child support agreement or that the variation of the agreement was necessary to ensure the proper support of the children. The court also found that any arrears of child support payable under the agreement should be discharged, as the wife had not provided sufficient evidence to support her claim for arrears. The court held that the wife's enforcement summons should be dismissed, as it was no longer necessary or appropriate in light of the variation of the child support agreement.

In summary, the court dismissed the wife's enforcement summons and varied the child support agreement by deleting certain clauses. The court also discharged any arrears of child support payable under the agreement. The orders of the court were that the provisions of the child support agreement of 20 November 2000 be varied by deleting clauses 4.3.1 and 4.4, that any arrears of child support payable pursuant to clause 4.3.1 of the child support agreement of 20 November 2000 be discharged, and that the wife’s enforcement summons of 3 March 2004 be dismissed. These orders reflect the court's determination that the wife had not established a sufficient case for enforcement of the child support agreement and that the variation and discharge of arrears were appropriate in the circumstances of the case.

Orders

Orders of the court

The provisions of the child support agreement of 20 November 2000 be varied by deleting clauses 4.3.1 and 4.4.

Any arrears of child support payable pursuant to clause 4.3.1 of the child support agreement of 20 November 2000 be discharged.

The wife’s enforcement summons of 3 March 2004 be dismissed.

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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