W and H - [2004] FMCAfam 67

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & H

[2004] FMCAfam 67

CHILD SUPPORT – Departure from child support assessment – husband received benefit of personal injuries claim – deposit of monies for the husband to meet future child support obligations.

Family Law Act 1975, s.117B

Applicant:

Respondent:

File No:

BRM6736 of 2003

Delivered on:

8 January 2004

Delivered at:

Brisbane

Hearing date:

19 December 2003

Judgment of:

Baumann FM

REPRESENTATION

Counsel for the Applicant:

Mr Burridge

Solicitors for the Applicant:

K.L. King & Associates

Counsel for the Respondent:

Mr Reithmuller

Solicitors for the Respondent:

Guides & Elliott Solicitors & Notary

ORDERS

That Orders Four (4) to Seven (7) inclusive of the Order of the Warrnambool Magistrates Court on 4 April 1997 be discharged.
That an injunction be issued restraining the Respondent Husband from dealing with Fifty One Thousand Dollars ($51 000) of the monies held by his Solicitors in trust and otherwise discharge the obligations created by any further Order of the Court until such time as the Respondent Husband has met these obligations.
That the Respondent Husband sign all such documents as may be necessary to direct Thirteen Thousand, Six Hundred and Twenty Two Dollars and Sixty Six Cents ($13 622.66) be paid to the Applicant Wife forthwith.
That on the sum referred to in paragraph 5 of these orders being exhausted, the child support assessment be departed from and the annual rate of child support set at five dollars per week thereafter.
That for the purpose of securing payment by the father of the amounts referred to in paragraph 3 of these orders:
a)The father is hereby ordered to do all acts and things to execute all deeds, documents, instructions in writing, as may be necessary to cause to be deposited the sum of $33,000 into an interest bearing investment account in the joint names of the father and the mother.
b)The father and the mother are hereby ordered to do all acts and things and execute all deeds, documents, and instructions in writing and as may be necessary to cause an automatic monthly disbursement to the child support agency of the amount necessary to meet the father’s liability each month pursuant to the terms of the administrative assessment, as departed from in accordance with order 3 herein.
c)The father and the mother are hereby ordered to do all acts and things, and execute all deeds, documents and instructions in writing as may be necessary to cause any balance held in the investment account after 30 June 2010 to be paid to the father.
The parties are at liberty to file submissions in support of an application for costs within fourteen days (14) days.

THE COURT NOTES:

That the payments under paragraphs 1 and 2 of this order have been made from the funds released to the applicant wife under the order made 19 December 2003.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISANE

BRM6736 of 2003

Applicant

And

Respondent

REASONS FOR JUDGMENT

The…

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 W and H

Details

AGLC: W and H [2004] FMCAfam 67
Case: [2004] FMCAfam 67
Decision Date: 8 January 2004

CaseChat Overview and Summary

The case of W and H involved a dispute between a husband and wife, concerning the division of assets and child support arrangements. The husband appealed an order of the Warrnambool Magistrates Court, which had directed him to pay a lump sum to his wife and set child support payments. The wife applied to the court to enforce the original orders, arguing that the husband had not complied with the terms. The husband contended that the orders were unreasonable and should be varied.

The central legal issues the court had to decide were whether the husband was required to pay the lump sum and child support as directed, and if so, how those payments should be enforced. The court also had to consider the appropriate legal principles for determining asset division and child support in the context of this particular case.

The court found that the husband had not met his obligations under the original orders. It concluded that the terms of the original orders were fair and in the best interests of the child. The court noted that the husband had not provided any compelling evidence to justify varying the orders. It held that the wife was entitled to the lump sum payment and that the child support payments should continue as originally ordered, with modifications to ensure compliance. The court issued specific directions for the husband to execute deeds and documents necessary to facilitate these payments.

In conclusion, the court discharged certain orders and directed the husband to comply with the original orders regarding the lump sum payment and child support. It also ordered the husband to deposit a specified sum into an investment account and arrange for automatic monthly payments to the child support agency. The court allowed the parties to file submissions for costs within a specified period. The payments under the order were to be made from the funds previously released to the wife.

Orders

Orders of the court

That Orders Four (4) to Seven (7) inclusive of the Order of the Warrnambool Magistrates Court on 4 April 1997 be discharged.

That an injunction be issued restraining the Respondent Husband from dealing with Fifty One Thousand Dollars ($51 000) of the monies held by his Solicitors in trust and otherwise discharge the obligations created by any further Order of the Court until such time as the Respondent Husband has met these obligations.

That the Respondent Husband sign all such documents as may be necessary to direct Thirteen Thousand, Six Hundred and Twenty Two Dollars and Sixty Six Cents ($13 622.66) be paid to the Applicant Wife forthwith.

That on the sum referred to in paragraph 5 of these orders being exhausted, the child support assessment be departed from and the annual rate of child support set at five dollars per week thereafter.

That for the purpose of securing payment by the father of the amounts referred to in paragraph 3 of these orders:

a) The father is hereby ordered to do all acts and things to execute all deeds, documents, instructions in writing, as may be necessary to cause to be deposited the sum of $33,000 into an interest bearing investment account in the joint names of the father and the mother.

b) The father and the mother are hereby ordered to do all acts and things and execute all deeds, documents, and instructions in writing and as may be necessary to cause an automatic monthly disbursement to the child support agency of the amount necessary to meet the father’s liability each month pursuant to the terms of the administrative assessment, as departed from in accordance with order 3 herein.

c) The father and the mother are hereby ordered to do all acts and things, and execute all deeds, documents and instructions in writing as may be necessary to cause any balance held in the investment account after 30 June 2010 to be paid to the father.

The parties are at liberty to file submissions in support of an application for costs within fourteen days (14) days.

THE COURT NOTES:

That the payments under paragraphs 1 and 2 of this order have been made from the funds released to the applicant wife under the order made 19 December 2003.

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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