Acuff and Carlson - [2006] FMCAfam 14

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ACUFF & CARLSON

[2006] FMCAfam 14

CHILD SUPPORT – Departure order – the income, earning capacity, property and financial resources of the parents – whether either party has an unused capacity to earn income.

Child Support (Assessment) Act 1989 (Cth), ss.4, 117

Gilmour and Gilmour (1995) FLC 92-591
Liesert v Nutsch (1996) FLC 92-665
Bryant and Bryant (1996) FLC 92-690
Savery and Savery (1990) FLC 92-131
Gyselman and Gyselman (1992) FLC 92-279
DJM v LNM (1998) FLC 92-816
Spinks v Spinks (2002) FLC 98-016

Applicant:

MS ACUFF

Respondent:

MR CARLSON

File Number:

HBM3108 of 2001

Judgment of:

Roberts FM

Hearing dates:

6 July & 5 December 2005

Date of Last Submission:

5 December 2005

Delivered at:

Hobart

Delivered on:

30 January 2006

REPRESENTATION

Counsel for the Applicant:

Mr R Blissenden

Solicitors for the Applicant:

Avery Partners

Counsel for the Respondent:

Mr. M Trezise

Solicitors for the Respondent:

Dobson Mitchell & Allport

ORDERS

That there be a departure from administrative assessment of child support payable by MR CARLSON (“the liable parent”) for the children [X] born [in] 1989, [Y] born [in] 1993 and [Z] born [in] 1996 as follows:
(a)That for the period 6 October 2003 to 30 June 2006 the liable parent’s child support income be fixed at an annual rate of fifty five thousand three hundred and eighty six dollars ($55,386).
That within seven days MS ACUFF is to forward a copy of these Orders to the Child Support Agency, and the Child Support Registrar is requested to make the necessary calculations and to amend the Child Support Register accordingly.

IT IS NOTED that publication of this judgment under the pseudonym Acuff & Carlson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

HBM3108 of 2001

MS ACUFF

Applicant

And

MR CARLSON

Respondent

REASONS FOR JUDGMENT

Applications

These proceedings relate to child support and whether there should be any departure from the child support assessment procedure in relation to the children [X] born [in] 1989, [Y] born [in] 1993 and [Z] born [in] 1996.
MS ACUFF (“the Mother”) initially filed an Application in relation to child support on 18 March 2004. The Mother now relies on an Amended Application filed 2 May 2005. In that document she seeks an order that the child support payable by the Respondent for the period

6 October 2003 to 31 December 2005 be increased to $709.67 per month. She also seeks a further order that in addition to the child support payments of $709.67 per month the Father pay all fees associated with the attendance by the three children named in the Application at the [C] School at [K] in Tasmania.
MR CARLSON (“the Father”) filed his Response on 3 November 2004 at that time he was seeking Orders that reduced the child support assessment to nil and further that there be a departure from child support to provide that the Mother pay to him the sum of…

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: [2006] FMCAfam 14
Decision Date: 30 January 2006

CaseChat Overview and Summary

The case of Acuff and Carlson involved a dispute over the child support payments that were to be made by the father, Mr Carlson, for his three children with the mother, Ms Acuff. The matter was heard and determined in a family court in Australia. The primary concern was the calculation of the liable parent’s income for the purposes of determining the child support payable.

The legal issues that the court had to decide centred on the appropriate income assessment for the liable parent over a specified period. The court was required to consider whether the administrative assessment of Mr Carlson's income was accurate and to determine if any adjustments were necessary based on the evidence presented.

The court concluded that the administrative assessment did not accurately reflect Mr Carlson's income for the period from 6 October 2003 to 30 June 2006. It was found that his income should be fixed at an annual rate of fifty-five thousand three hundred and eighty-six dollars ($55,386). The court made orders that the Child Support Agency and the Child Support Registrar be notified of these findings and that appropriate adjustments be made to the Child Support Register.

Orders

Orders of the court

That there be a departure from administrative assessment of child support payable by MR CARLSON (“the liable parent”) for the children [X] born [in] 1989, [Y] born [in] 1993 and [Z] born [in] 1996 as follows:

(a) That for the period 6 October 2003 to 30 June 2006 the liable parent’s child support income be fixed at an annual rate of fifty five thousand three hundred and eighty six dollars ($55,386).

That within seven days MS ACUFF is to forward a copy of these Orders to the Child Support Agency, and the Child Support Registrar is requested to make the necessary calculations and to amend the Child Support Register accordingly.

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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