W & C

[2005] FMCAfam 96

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & C [2005] FMCAfam 96

FAMILY LAW – Injunction sought by wife to restrain husband from discharging mortgage in accordance with property orders – injunction refused.

CHILD SUPPORT – Wife seeking lump sum child support payment – order for costs refused where no prior undertaking offered.

Child Support (Assessment) Act 1989 (Cth), ss.4; 114; 117.
Family Law Act 1975 (Cth), s.117

Waugh & Waugh [2000] FamCA 1183
Abelia v Anderson [1987] 2 Qd R 1

Applicant: QW

Respondent: CC

File Number: PAM 6194 of 2004

Judgment of: Emmett FM

Hearing date: 25 February 2005

Delivered at: Parramatta

Delivered on: 25 February 2005

REPRESENTATION

Counsel for the Applicant: Mr Campton

Solicitors for the Applicant: Doherty & Partners

Counsel for the Respondent: Mr Dura

Solicitors for the Respondent: J.A. Buda & Associates

ORDERS

1. Order 4 of the Application for Departure Order filed 14 January 2005 is hereby dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 6194 of 2004

QW

Applicant

And

CC

Respondent

REASONS FOR JUDGMENT

History

1. An Order is sought by the Applicant Mother restraining the Respondent Father from dealing with his interests in an investment property at F (“the F Property”) owned by the parties.  Pursuant to Orders made by Halligan JR on 2 November 2004, the Respondent Father is to pay $16,556.25 to the Applicant Mother and discharge the mortgage in respect of the F property within 3 months.

2. Upon compliance with that Order, the Applicant Mother is to transfer her interest in the F property to the Respondent Father.

   
   

   I understand that is to happen at any moment.

3. On 14 January 2005 the Applicant Mother filed a Child Support Application for a Departure Order seeking lump sum payment of $124,426.63.  The present assessment of child support is $21.67 a month. 

4. The Applicant Mother’s Departure Application is based on the earning capacity of the Respondent Father enabling him to contribute equally to the cost of the 2 children of the marriage assessed by the Applicant Mother as costing $800 a month. 

The evidence

1. The Applicant Mother relies on her Affidavit sworn 17 December 2004 in support of the restraining Order she seeks today and in particular paragraphs 9, 21 and 22 of that Affidavit. 

2. Paragraphs 9 and 21 of the Applicant Mother refer to statements alleged by the Applicant Mother to have been made by the Respondent Father around November 2001, from which the Applicant Mother asks the Court to infer that the Respondent Father intends to avoid any child support obligations and intends to return to China:

   “Where it will be impossible for you to get child support.”

3. There is another unidentified occasion in paragraph 22 where the Applicant Mother states that the Respondent Father said to her:

   “I won’t pay any money for the children.”

4. The Respondent Father denies these conversations. 

5. The Respondent Father relies on his Affidavit sworn 17 February 2005.

Findings

1. In respect of the alleged statement of the Respondent Father in November 2001, I note that they…