W & W - [2005] FMCAfam 295

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2005] FMCAfam 295

CHILD SUPPORT – Departure from administrative assessment – income earning capacity, property and financial resources – importance of considering whether assessment ‘just and equitable’ rather than limiting consideration to a comparison of income amounts.

CHILD SUPPORT – Departure from administrative assessment – income earning capacity, property and financial resources – section 117(2)(c)(i) not restricted to cases where income amount differs from assessed income amount.

Child Support (Assessment) Act 1989, s.117(2)(c)(i)

Clauson & Clauson (1995) FLC ¶92-595
DJM v JLM (1998) FLC ¶92-816
Garnaut v Child Support Registrar [2004] FCA 1100
Gyselman & Gyselman (1992) FLC ¶92-279
Hides & Hatton (1997) FLC ¶92-759
Humphries and Humphries (1993) FLC ¶92-430
Portillo and Portillo (1994) FLC ¶92-484
Ross & McDermott (1998) FLC ¶98-003
S & C (1997) FLC ¶92-750
Sheahan and Sheahan (1993) FLC ¶92-375
Woollams and Woollams (2004) FLC ¶93-195

Applicant:

Respondent:

File No:

DGM 1483 of 2002

Delivered on:

8 June 2005

Delivered at:

Melbourne

Hearing Date:

25 February 2005

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Ms PW appeared on her own behalf

Counsel for the Respondent:

Ms McCreadie

Solicitors for the Respondent:

Perry Weston

ORDERS

That the child support assessment be departed from.
That the weekly rate of child support be set at $50.00 (for the period
10 August 2004 to 30 September 2006).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

DGM 1483 of 2002

Applicant

and

Respondent

REASONS FOR JUDGMENT

The applicant in this case is the mother of one child SW, born 2 July 1993. The respondent is the child's father. The parties separated some time ago.
The child support assessment that is currently in force is for the sum of $1,560.00 per annum for the period 10 August 2004 to 30 September 2005. This assessment rate was set by a senior case officer at the child support agency acting under Part 6A of the Child Support Assessment Act 1989 (‘the Act’) on 10 August 2004 in a decision on an application by the applicant in this matter.

The Law

The considerations relevant when determining whether or not to depart from a child support assessment are set out in section 117 of the Child Support (Assessment) Act. The appropriate approach is set out in Gyselman & Gyselman (1992) FLC ¶92-279 where the Full Court of the Family Court said (at 79,064):
The structure of that section is that s 117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in sub-sections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
1. Whether one or more grounds of departure in s 117(2) is established.
If so:
2. Whether it is ``just and equitable'' within the meaning of

s 117(4) to make a particular order.
3. Whether it is ``otherwise proper'' within the meaning of

s 117(5) to make a particular order.
It is clear from the careful way in which s…

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.

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Details

Case: [2005] FMCAfam 295
Decision Date: 8 June 2005

CaseChat Overview and Summary

The parties involved in this case were W and W, and the matter was heard in the Family Court of Australia. The dispute centred around the calculation and adjustment of child support payments. The mother, W, sought a departure from the standard child support assessment to reflect what she argued were the unique circumstances of the case. The father, also W, contested this request, maintaining that the standard assessment was appropriate.

The primary legal issue before the court was whether the child support assessment should be departed from and, if so, what the appropriate rate of payment should be. The mother argued that the standard assessment did not adequately account for the specific needs of the child and the unique financial situation of the parties. The father contended that the standard assessment was accurate and should be upheld. The court was required to consider the relevant statutory framework and case law to determine the appropriate course of action.

The court found that the standard child support assessment did not appropriately reflect the needs of the child and the financial circumstances of the parties. The judge considered the statutory guidelines and the evidence presented by both parties. The judge concluded that the standard assessment did not provide a fair and reasonable outcome in this case. As a result, the court departed from the standard assessment and set the weekly rate of child support at $50.00 for the specified period.

The final orders of the court mandated that the child support assessment be departed from and that the weekly rate of child support be set at $50.00 for the period from 10 August 2004 to 30 September 2006. This decision was based on the specific findings of the judge regarding the unique circumstances of the case and the need for a fair and reasonable outcome for the child.

Orders

Orders of the court

That the child support assessment be departed from.

That the weekly rate of child support be set at $50.00 (for the period

10 August 2004 to 30 September 2006).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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