FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Aliyev & Higashi [2024] FedCFamC1F 182
File number: SYC 3392 of 2020 Judgment of: HARPER J Date of judgment: 20 March 2024 Catchwords: FAMILY LAW – CHILD SUPPORT – Where father’s Amended Initiating Application dismissed for non-compliance with Court orders – Where mother sought orders for enforcement of child support assessment – Where father is resident overseas and has no assets or income in Australia against which a child support debt could be enforced by the Registrar of Child Support – Enforcement orders required to enable mother to recover debt overseas – Orders made that father pay arrears in child support – Where parties have engaged extensively with Services Australia and their review process – Where the requirement for service of the Registrar of Child Support dispensed with – Where it is just and equitable and otherwise proper to make an order for lump sum child support payments in lieu of periodic payments. Legislation: Child Support (Assessment) Act 1989 (Cth) ss 79, 117, 123(1)(b), 123A
Child Support (Registration and Collection) Act 1988 (Cth) ss 113, 104
Evidence Act 1995 (Cth) ss 91,157
Family Law Act 1975 (Cth) Pt VII, s 117(1)
Federal Circuit and Family Court of Australia (Family Law) Rules (2021) (Cth) rr 1.13, 1.31, 11.27
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Caffyn & Caffyn [2021] FedCFamC1F 68
Nevins & Urwin (2022) FLC 94-084; [2022] FedCFamC1A 57
Division: Division 1 First Instance Number of paragraphs: 33 Date of hearing: 18 March 2024 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Kelly Solicitor for the Respondent: Derham Houston Lawyers ORDERS
SYC 3392 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR ALIYEV
Applicant
AND: MS HIGASHI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.By no later than 19 April 2024 , pursuant to s 113 of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) the Applicant Father (“the father”) pay to the Respondent Mother (“the mother”) or as she may direct in writing, the sum of $62,716 being the arrears of child support in relation to X born 2016 (“the child”).
2.By no later than 19 April 2024, pursuant to s 123(l)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) father pay child support to the mother by way of a lump sum payment in the amount of $10,485.
3.Pursuant to s 123A(3) of the Assessment Act the payment pursuant to Order 2 hereof shall be credited 100 per cent against the administrative assessment of child support for the period 1 April 2024 to 31 August 2024.
4.Commencing on 1 September 2024 and on 1 September every subsequent year up to and including 1 September 2033 the father pay child support to the mother by way of a lump sum payment in the amount of $30,000 (“the payment”), pursuant to s 123(1)(b)…
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CaseChat Overview and Summary
The court held that it was appropriate to make enforcement orders to assist Ms Higashi in recovering the child support debt from Mr Aliyev, who resides overseas. The court also found it just and equitable to order lump sum child support payments in lieu of periodic payments due to the nature of the father's overseas residence and lack of assets or income in Australia. The court determined that these orders would better serve the interests of the child and the mother.
Accordingly, the court ordered Mr Aliyev to pay the arrears of child support in the amount of $62,716 by 19 April 2024. Additionally, he was ordered to make a lump sum payment of $10,485 by the same date. From 1 September 2024, Mr Aliyev was ordered to make annual lump sum payments of $30,000 until 1 September 2033. The court also directed that these lump sum payments be credited against the administrative assessment of child support. Finally, the court ordered Mr Aliyev to pay Ms Higashi's costs of the proceedings.
Orders
Orders of the court
SYC 3392 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MR ALIYEV
Applicant
AND:
MS HIGASHI
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1. By no later than 19 April 2024 , pursuant to s 113 of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) the Applicant Father (“the father”) pay to the Respondent Mother (“the mother”) or as she may direct in writing, the sum of $62,716 being the arrears of child support in relation to X born 2016 (“the child”).
2. By no later than 19 April 2024, pursuant to s 123(l)(b) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) father pay child support to the mother by way of a lump sum payment in the amount of $10,485.
3. Pursuant to s 123A(3) of the Assessment Act the payment pursuant to Order 2 hereof shall be credited 100 per cent against the administrative assessment of child support for the period 1 April 2024 to 31 August 2024.
4. Commencing on 1 September 2024 and on 1 September every subsequent year up to and including 1 September 2033 the father pay child support to the mother by way of a lump sum payment in the amount of $30,000 (“the payment”), pursuant to s 123(1)(b) of the Assessment Act.
5. Pursuant to s 123A(3) of the Assessment Act the payment pursuant to Order 4 shall be credited 100 per cent against the administrative assessment of child support for the period from 1 September in the year it is payable to 31 August the following year.
6. By no later than 17 April 2024, each party do all acts and things and sign all documents as may be required to give effect to these orders.
7. In the event either party refuses to execute, neglects to execute or defaults in the execution of any deed, document or instrument necessary to give effect to these orders, then a Registrar of the Court shall be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the defaulting party and do all acts and things to give validity and operation to the deed, document or instrument upon the Registrar being provided with the verification of such refusal or failure by way of affidavit.
8. Pursuant to r 1.31(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the requirements of r 1.13 are dispensed with.
9. The mother serve a sealed copy of these orders on the Registrar of Child Support, as soon as practicable.
10. The father pay the mother’s costs of and incidental to these proceedings fixed in the sum of $5,500.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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