Aitken and Porteus - [2009] FMCAfam 783

FEDERAL MAGISTRATES COURT OF AUSTRALIA

AITKEN & PORTEUS

[2009] FMCAfam 783

CHILD SUPPORT – Application for lump sum child support – relevant provisions of Child Support (Assessment) Act – lump sum ordered to operate both retrospectively and prospectively.

Child Support (Assessment) Act 1989, ss.116, 117, 123, 123A, 124, 125, 126 & 141
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006

Federal Magistrates Court Rules 2001, r.24.01

Lightfoot & Hampson (1996) FLC 92-663
Ivanovic (1996) FLC 92-689
Hartnett & Baker (1995) FLC 92-620
McGuinness & Cowie [2002] FamCA 461
Kettle & Baker & Green [2009] FamCAFC 113

Applicant:

MS AITKEN

Respondent:

MR PORTEUS

File Number:

PAC2768 of 2007

Judgment of:

Lindsay FM

Hearing dates:

20, 21 & 26 May 2009

Date of Last Submission:

26 May 2009

Delivered at:

Parramatta

Delivered on:

31 July 2009

REPRESENTATION

Counsel for the Applicant:

Mr Livingstone

Solicitors for the Applicant:

Rafton Family Lawyers

Counsel for the Respondent:

Self-represented

ORDERS

Pursuant to s.124 of the Child Support (Assessment) Act 1989 (Cth), in respect of the period 1 May 2007 to 31 July 2012, the father do provide child support for the children [Y] born in 2002 and [X] born in 2001 to the mother other than in the form of periodic payments, namely in the form of a lump sum of FORTY EIGHT THOUSAND DOLLARS ($48,000).
The annual rate of child support payable by the father under any relevant administrative assessment for that said period is to be reduced by ONE HUNDRED PER CENT (100%).
The payment referred to in paragraph 1 be paid by the father to the mother within sixty (60) days of today’s date.
In the event that the father fails or neglects to comply with the payment of the lump sum referred to in paragraph 1, then the parties shall forthwith do all such things and sign all such documents and give all such instructions as may be necessary to list for sale and sell the property situate and known as Property C in the State of New South Wales, being the whole of the land comprised in Certificate of Title folio identifier Lot [2] in Deposited Plan [1], (“the Property”) with a real estate agent as agreed upon between the parties or, in default as to the identity of such real estate agent for a period greater than seven (7) days, with a real estate agent as nominated by the Real Estate Institute of New South Wales, at a price agreed upon between the parties or, in default as to agreement on such a selling price for a period greater than seven (7) days, at such selling price as nominated by the said real estate agent, and, upon completion of the said sale, the balance of proceeds of such sale be applied in the following priority:
(a)in payment of an amount sufficient to discharge any mortgage secured upon the Property;
(b)in payment of the fees due for the nomination…

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 Aitken and Porteus

Details

AGLC: Aitken and Porteus [2009] FMCAfam 783
Case: [2009] FMCAfam 783
Decision Date: 31 July 2009

CaseChat Overview and Summary

The case of Aitken and Porteus involved the father, Aitken, and the mother, Porteus, with the dispute focusing on the provision of child support for their two children, born in 2001 and 2002. The matter was heard in the Family Court of Australia, where the primary concern was the enforcement of child support obligations under the Child Support (Assessment) Act 1989 (Cth). The court had to decide whether the father was to provide child support in the form of a lump sum payment rather than periodic payments, and if so, what the amount should be. Additionally, the court was tasked with determining the reduction rate of the annual child support payable by the father and establishing the terms for the enforcement of these payments.

The court's reasoning was grounded in the specific statutory provisions of the Child Support (Assessment) Act. It found that the father's obligation to provide child support for the specified period should be fulfilled through a lump sum payment of $48,000. The court justified this decision by considering the unique circumstances of the case, where the lump sum payment was deemed more appropriate given the nature of the father's income and assets. Furthermore, the court determined that the annual rate of child support payable by the father should be reduced by 100% for the period in question, reflecting a comprehensive reassessment of his financial capacity and obligations. The court also mandated that the lump sum payment be made within 60 days of the judgment and imposed stringent measures to ensure compliance, including the potential sale of a specified property if the father failed to meet his obligations.

The orders issued by the court required the father to pay the specified lump sum to the mother within 60 days. In the event of non-compliance, the court detailed a process for the sale of a particular property, with proceeds to be applied to various obligations before any distribution to the father. The father was also restrained from transferring or encumbering his interest in the property until compliance with the payment order. The court's final orders included provisions for liberty to apply for further consequential orders, ensuring that the court retained the ability to adjust the terms as necessary to enforce compliance.

Orders

Orders of the court

Pursuant to s.124 of the Child Support (Assessment) Act 1989 (Cth), in respect of the period 1 May 2007 to 31 July 2012, the father do provide child support for the children [Y] born in 2002 and [X] born in 2001 to the mother other than in the form of periodic payments, namely in the form of a lump sum of FORTY EIGHT THOUSAND DOLLARS ($48,000).

The annual rate of child support payable by the father under any relevant administrative assessment for that said period is to be reduced by ONE HUNDRED PER CENT (100%).

The payment referred to in paragraph 1 be paid by the father to the mother within sixty (60) days of today’s date.

In the event that the father fails or neglects to comply with the payment of the lump sum referred to in paragraph 1, then the parties shall forthwith do all such things and sign all such documents and give all such instructions as may be necessary to list for sale and sell the property situate and known as Property C in the State of New South Wales, being the whole of the land comprised in Certificate of Title folio identifier Lot [2] in Deposited Plan [1], (“the Property”) with a real estate agent as agreed upon between the parties or, in default as to the identity of such real estate agent for a period greater than seven (7) days, with a real estate agent as nominated by the Real Estate Institute of New South Wales, at a price agreed upon between the parties or, in default as to agreement on such a selling price for a period greater than seven (7) days, at such selling price as nominated by the said real estate agent, and, upon completion of the said sale, the balance of proceeds of such sale be applied in the following priority:

(a) in payment of an amount sufficient to discharge any mortgage secured upon the Property;

(b) in payment of the fees due for the nomination of a real estate agent, the real estate agent’s commission and legal costs incurred in relation to the said sale;

(d) in payment of the balance to the father.

Pending compliance by the father with paragraph 1, the father be restrained from transferring, encumbering, assigning, mortgaging or otherwise adversely dealing with or disposing of his right, entitlement and interest in the Property.

All applications do otherwise stand dismissed.

There be liberty to apply as to consequential orders.

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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