WGB and CEM - [2004] FMCAfam 17

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WGB & CEM

[2004] FMCAfam 17

CHILD SUPPORT – Application for Departure Orders – whether liable parent should pay private school fees – whether child being educated in the manner expected by both parents – where both parties fail to make full and frank disclosure of their respective financial positions – where there has been considerable litigation between the parties and their relationship remains acrimonious – where both parties have seen fit to exercise “self help” – lump sum child support – capitalisation of periodic child support – whether “Budget Standard” or “BSU” method of ascertaining the costs of maintaining children should be considered.

Legislation:
Child Support (Assessment) Act 1989
Child Support (Registration and Collection) Act1988
Family Law Act 1975

Cases cited:
Luton v Lessels (2001) FLC 98-015
Gyselman (1992) FLC 92-279
Hides v. Hatton (1997) FLC 92-759
Ross and McDermott (1998) 23 Fam.L.R. 613
F & S (2003) FMCAfam 531
Mee & Ferguson (1986) FLC 91-716
Chang v Su (2002) FLC 93-117
Mezzacappa (1987) FLC 91-853
Black & Kellner (1992) FLC 92-287
Weir (1993) FLC 92-338
Oriolo (1985) FLC 91-653
Briese (1986) FLC 91-715
Giunti (1986) FLC 91-759
Kannis (2002) FamCA 1150 (reported in (2003) FLC 93-135
Hardman (2003) FamCA 1057
Rayson (2003) FamCA 1384
S & S [2003] FMCAfam 301
R & R (No.1) (2002) FMCAfam 153
Prpic v Prpic (1995) FLC 92-574
Barrell Insurance Pty Ltd v Pennant Hills Restaurant Limited (1981) 34 ALR 162
Tadorovic v Waller (1981) 37 ALR 481
Racine v Hemnett (1982) 7 FamLR 716
Bendeich (1993) FLC 92-355
Vaughan (1981) 7 FamLR 379
Anast & Anastopoulos (1981) 7 FamLR 728

Applicant:

WGB

Respondent:

CEM

File No:

MLM 5891 of 2002

Delivered on:

29 October 2004

Delivered at:

Melbourne

Hearing dates:

16, 17 & 18 December 2003

Judgment of:

Walters FM

REPRESENTATION

Counsel for the Applicant:

Mr Crozier-Durham

Solicitors for the Applicant:

Tony O’Brien & Associates

Counsel for the Respondent:

Ms Tulloch

Solicitors for the Respondent:

Anthony Peterson & Co

ORDERS

I propose to make orders to the following effect:
a)There be a departure from the administrative assessment of child support payable by the husband for the period 2 January 2002 to 30 September 2002 as follows:
i)by attributing to the husband a child support income amount of $108,732.00 (or such other figure as shall equate to the maximum possible child support income); and
ii)by attributing to the wife a child support income amount of $32,717.00 (or such other amount as shall equate to the disregarded income amount for that period, less $1,000.00);
b)There be a departure from the administrative assessment of child support payable by the husband for the period 1 October 2002 to 31 December 2003 as follows:
i)by attributing to the husband a child support income amount of $113,542.00 (or such other sum as shall equate to the maximum possible child support income); and
ii)by attributing to the wife a child support income amount of $34,012.00 (or such other sum as shall equate to…

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 WGB and CEM

Details

AGLC: WGB and CEM [2004] FMCAfam 17
Case: [2004] FMCAfam 17
Decision Date: 29 October 2004

CaseChat Overview and Summary

In the Family Court of Australia, the case between WGB and CEM revolves around the calculation and payment of child support. The primary dispute was over the administrative assessment of child support payable by the husband for specified periods and the subsequent departure from those assessments. The wife contested the child support income attributed to both parties and sought adjustments based on what she considered to be more accurate figures.

The court was tasked with determining the appropriate child support income amounts to attribute to both parties for the periods in question, as well as the proper calculation of child support payable. This included examining the figures proposed by both parties and deciding whether the administrative assessments were accurate or required adjustment. Additionally, the court needed to consider a lump sum payment proposed by the husband for a specified period, including its implications for future child support assessments.

The court concluded that the administrative assessments required adjustments to reflect the correct child support income amounts for the periods in question. The court found that attributing a higher income to the husband and a lower income to the wife was justified based on the evidence presented. Regarding the lump sum payment, the court accepted this as a reasonable alternative to periodic payments and directed that it be credited fully against the husband's child support liability. The court dismissed the remaining applications from both parties, reserving the issue of arrears for further consideration.

Following the judgment, the court proposed specific orders to implement the decision, including adjustments to the child support income amounts and the payment of a lump sum by the husband to the wife by a specified date. These orders also included provisions for crediting the lump sum payment against future child support liabilities. The court requested counsel to provide further details on the precise wording of the orders necessary to enforce the judgment.

Orders

Orders of the court

I propose to make orders to the following effect:

a) There be a departure from the administrative assessment of child support payable by the husband for the period 2 January 2002 to 30 September 2002 as follows:

i) by attributing to the husband a child support income amount of $108,732.00 (or such other figure as shall equate to the maximum possible child support income); and

ii) by attributing to the wife a child support income amount of $32,717.00 (or such other amount as shall equate to the disregarded income amount for that period, less $1,000.00);

b) There be a departure from the administrative assessment of child support payable by the husband for the period 1 October 2002 to 31 December 2003 as follows:

i) by attributing to the husband a child support income amount of $113,542.00 (or such other sum as shall equate to the maximum possible child support income); and

ii) by attributing to the wife a child support income amount of $34,012.00 (or such other sum as shall equate to the disregarded income amount for that period, less the sum of $1,000.00).

c) The husband do provide child support to the wife for the child B for the period from 1 January 2004 to 7 September 2007 otherwise than in the form of periodic amounts payable to the wife – such child support to comprise a lump sum payment by the husband to the wife of $67,250.00.

d) The father do pay to the wife the said sum of $67,250.00 referred to in (c) above on or before 5 November 2004.

e) The order referred to (c) above is an order in Section 124 of the Child Support (Assessment) Act 1989, and all child support to be provided by the husband pursuant to it is to be credited against the husband’s liability under all administrative assessments of child support payable by the husband to the wife that relate to the whole or any part of the period referred to in the said order, and is to count for 100% of the annual rate of child support payable under the said administrative assessments.

f) The parties’ applications otherwise be dismissed (save in relation to the issue of arrears brought about by the terms of these orders, or otherwise).

I shall now hear Counsel regarding the precise terms of the orders necessary to give effect to this judgment.

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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