W & M - [2005] FMCAfam 267

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & M

[2005] FMCAfam 267

CHILD SUPPORT – Application to discharge a child support agreement – where applicant received a forced redundancy – duty to support another dependent child from his present marriage – where applicant made appropriate and reasonable attempts to secure paid employment commensurate with his previous employment without success – applicant commences full time tertiary course after outplacement assessment – applicant’s age and skill level – whether in the circumstances his decision to study was reasonable – earning capacity where applicant has the ability to work but opportunity to work is lacking – financial resources of the parties – whether special circumstances warrant – special circumstances established – course of education found to be reasonable – where the respondent sought a capitalisation of child support in the amount of $300,000.

Child Support (Assessment) Act 1989 (Cth), ss.3, 4, 4(2), 4(3), 95, 98, 100, 114, 117, 117(2), 117(2)(c)(i), 117(4), 117(5), 117(6), 117(7), 117(8), 121, 123, 123(1), 124, 124(1), 124(1)(b), 124(2), 124(5)
Child Support (Registration and Collection) Act 1988 (Cth)

Family Law Act 1975 (Cth), ss.66N(2), 79, 100

Gilmour & Gilmour (1995) FLC 92-591; (1994) 18 Fam LR 646
Liesert & Nutsch (1996) FLC 92-665; (1996) 129 FLR 367
Bryant & Bryant (1996) FLC 92-690; (1996) 20 Fam LR 575

Liu & Chen [2003] FMCAfam 322
Wild and Ballard (1997) FLC 92-771
Gyselman & Gyselman (1992) 15 Fam LR 219
Hides & Hatton (1997) FLC 92‑759
DJM v JLM (1998) FLC 92-816
Scott and Scott (1994) FLC 92-457
Scott v Stauder (unreported, judgment delivered 20 November 1996)
R & R (No 1) [2002] FMCAfam 153

Prpic & Prpic (1995) FLC 92–574

Bendeich (1993) FLC 92-355

Applicant:

g w

Respondent:

m m

File Number:

SYM 5081 of 2001

Judgment of:

Pascoe CFM

Hearing date:

27 May 2005

Delivered at:

Parramatta

Delivered on:

27 June 2005

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Nil

Solicitors for the Respondent:

Nil

ORDERS

THAT the provisions of the Child Support Agreement entered into between the applicant and the respondent on 13 August 2001 and registered with the Child Support Agency on 24 September 2004 be departed from, and the obligations of the applicant pursuant to the said agreement be hereby discharged with effect from 27 June 2005.
THAT there be an administrative assessment of child support.
THAT the applicant pay to the respondent a lump sum payment of child support in the amount of $10,000 within 14 days.
THAT all applications otherwise be dismissed and removed from the List of Cases awaiting finalisation.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

SYM 5081 of 2001

G W

Applicant

And

M M

Respondent

REASONS FOR JUDGMENT

Introduction

This application is brought by the applicant father (“the applicant”) pursuant to the provisions of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) in which he seeks a departure from his child support obligations pursuant to a Child Support Agreement…

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 & M

Details

AGLC: W & M [2005] FMCAfam 267
Case: [2005] FMCAfam 267
Decision Date: 27 June 2005

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of W & M concerned a dispute regarding child support arrangements. The applicant sought to depart from the terms of a Child Support Agreement dated 13 August 2001, which had been registered with the Child Support Agency on 24 September 2004, and requested that their obligations under this agreement be discharged as of 27 June 2005. The respondent opposed this application and also sought a review of the child support arrangements. The court was required to determine whether the provisions of the Child Support Agreement should be departed from, and if so, what alternative arrangements should be made for the payment of child support.

The court considered whether the change in circumstances of the applicant warranted a departure from the agreed child support arrangements. The applicant argued that their financial situation had deteriorated significantly, making it impossible to meet the existing child support obligations. The court evaluated the evidence presented by both parties and noted that the applicant's financial circumstances had indeed changed markedly since the agreement was made. The court found that the change in circumstances was significant and justified a departure from the terms of the Child Support Agreement. Given this finding, the court proceeded to order an administrative assessment of child support to determine the appropriate amount going forward. Additionally, the court ordered the applicant to make a lump sum payment of $10,000 within 14 days to the respondent as part of the child support obligations.

In light of the above, the court discharged the applicant's obligations under the Child Support Agreement as of 27 June 2005, mandated an administrative assessment of child support, and ordered the applicant to pay a lump sum of $10,000 within 14 days. All other applications were dismissed and removed from the list of cases awaiting finalisation.

Orders

Orders of the court

THAT the provisions of the Child Support Agreement entered into between the applicant and the respondent on 13 August 2001 and registered with the Child Support Agency on 24 September 2004 be departed from, and the obligations of the applicant pursuant to the said agreement be hereby discharged with effect from 27 June 2005.

THAT there be an administrative assessment of child support.

THAT the applicant pay to the respondent a lump sum payment of child support in the amount of $10,000 within 14 days.

THAT all applications otherwise be dismissed and removed from the List of Cases awaiting finalisation.

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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