Wadsworth and Wadsworth - [2013] FCCA 2043

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADSWORTH & WADSWORTH

[2013] FCCA 2043

Catchwords:
FAMILY LAW – Adult child maintenance – twin adult children studying at university – enforcement application filed and later withdrawn – whether order should be discharged or varied because of refusal by twin adult children to undertake any paid work – competing costs arguments.

Legislation:

Child Support (Assessment) Act 1989, s.24
Family Law Act 1975, ss.66B, 66C, 66E, 66F, 66G, 66H, 66K, 66J, 66L, 66P, 66S, 66T, 69E, 117
Family Law Rules 2004, Chapter 19
Federal Circuit Court Act 1999, s.102, 103
Federal Circuit Court Rules 2001, reg. 20.00A, 21.02

Arman & Arman [2009] FamCA 8
Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 at 256
Fennessy & Gregorian [2009] FamCAFC 44 (2009) FLC 93-399
Kohan & Kohan (1993) FLC 92-340 (1992) 16 Fam LR 245
In the Marriage of Ryan (1988) 12 Fam LR 529 (1988) FLC 91-970
Tobin & Tobin [1999] FamCA 446; (1999) FLC 92-848 (1999) 24 Fam LR 635
Yunghanns & Yunghanns (2000) FLC 93-029 (2000) 26 Fam LR 331

Applicant:

MR WADSWORTH

Respondent:

MS WADSWORTH

File Number:

SYC 7629 of 2010

Judgment of:

Judge Monahan

Hearing date:

24 July 2013

Date of Last Submission:

24 July 2013

Delivered at:

Sydney

Delivered on:

11 December 2013

REPRESENTATION

Counsel for the Applicant:

Not Applicable

Solicitors for the Applicant:

Mr Ryrie, Elliot Tuthill, Solicitors

Counsel for the Respondent:

Not Applicable

Solicitors for the Respondent:

Mr Purdon, William Purdon, Solicitor

ORDERS

The Orders made on 21 March 2011 be varied as follows:
(a)MR WADSWORTH (“the father”) pay to MS WADSWORTH (“the mother”) the sum of $646.00 per month for 12 months from the date of these Orders (i.e. from December 2013 until and including November 2014) being for adult child maintenance for the two children of the marriage X born (omitted) 1993 and Y born (omitted) 1993.
or
(b)in the alternative, the father may elect to make a final lump sum payment to the mother in the sum of $7,362 and in that event he must notify the mother in writing of his intention to do so within 14 days from the date of these Orders and if so pay such sum to the mother as she directs in writing within 28 days from the date of these Orders.
Within 28 days of today’s date the mother pay the father in such manner as he directs in writing the sum of $153.00 by way of costs.
All extant applications before this Court be otherwise dismissed.

AND THE COURT NOTES THAT:

(A)The figure of $153.00 in paragraph 2 herein is the result of setting-off costs orders made against each party, that is a costs order in favour of the mother in the sum of $2,112.00 and a costs orders in favour of the father in the sum of $2,265.00.

IT IS NOTED that publication of this judgment under the pseudonym Wadsworth & Wadsworth is approved pursuant to s.121(9)(g) of 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 Wadsworth and Wadsworth

Details

AGLC: Wadsworth and Wadsworth [2013] FCCA 2043
Case: [2013] FCCA 2043
Decision Date: 11 December 2013

CaseChat Overview and Summary

In *Wadsworth and Wadsworth*, heard by Judge Monahan, the dispute concerned an application to vary existing orders relating to adult child maintenance and costs. The parties, Mr and Ms Wadsworth, sought to alter the financial arrangements concerning their two adult children, born in 1993.

The court was required to determine the appropriate level of adult child maintenance payable by the father to the mother, and to make orders regarding the costs of the proceedings.

Judge Monahan reasoned that the father should pay a monthly sum for adult child maintenance for a limited period, or alternatively, a lump sum. The court also addressed the costs of the proceedings by setting off the costs orders made in favour of each party, resulting in a net payment from the mother to the father. The court ordered that the father pay $646.00 per month for 12 months for adult child maintenance, or a lump sum of $7,362.00 if elected by the father within 14 days. The mother was ordered to pay the father $153.00 for costs within 28 days, representing the net effect of set-off costs orders. All other extant applications before the court were dismissed.

Orders

Orders of the court

The Orders made on 21 March 2011 be varied as follows:

(a) MR WADSWORTH (“the father”) pay to MS WADSWORTH (“the mother”) the sum of $646.00 per month for 12 months from the date of these Orders (i.e. from December 2013 until and including November 2014) being for adult child maintenance for the two children of the marriage X born (omitted) 1993 and Y born (omitted) 1993.

(b) in the alternative, the father may elect to make a final lump sum payment to the mother in the sum of $7,362 and in that event he must notify the mother in writing of his intention to do so within 14 days from the date of these Orders and if so pay such sum to the mother as she directs in writing within 28 days from the date of these Orders.

Within 28 days of today’s date the mother pay the father in such manner as he directs in writing the sum of $153.00 by way of costs.

All extant applications before this Court be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) The figure of $153.00 in paragraph 2 herein is the result of setting-off costs orders made against each party, that is a costs order in favour of the mother in the sum of $2,112.00 and a costs orders in favour of the father in the sum of $2,265.00.

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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