BABBITT & BABBITT - [2009] FMCAfam 857

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BABBITT & BABBITT

[2009] FMCAfam 857

Child Support – Appeal against administrative assessment – departure application – applications stayed pending the determination of a constitutional point – whether the application was prejudiced by the order of proceedings.

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Evidence Act 1995 (Cth)
Federal Magistrates Act1999 (Cth)
Partnership Act 1891 (Cth)

Austal Ships Sales Pty Ltd v Stena Rederi Aktiebolag [2009] FCAFC 179
Gyselman, In the Marriage of (1992) FLC 92-279
Hallinan v Witynski [1999] FamCA 1127; (1999) FLC 98-009
Hides and Hatton, In the Marriage of (1997) FLC 92-759
Jones v Dunkel (1959) 101 CLR 298
Jonhson Tiles Australia Pty ltd v Esso Australia Ltd (2000) 104 FCR 564
Lutton v Lessels (2002) 210 CLR 333
Parkdale Custom Built Furniture Pty ltd v Puxu Pty Ltd (1982) 149 CLR 191
Weekes v Child Support Registrar [2006] FamCA 598; (2006) FLC 93-273
Whittaker v Child Support Registrar [2004] HCATrans 252

Applicant:

MR BABBITT

Respondent:

MS BABBITT

File Number:

BRM1186 of 2003

Judgment of:

Burnett FM

Hearing dates:

15 May 2007, 12, 13 and 15 November 2007; 18 December 2007; 23 January 2009

Date of Last Submission:

13 February 2009

Delivered at:

Brisbane

Delivered on:

5 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr O’Neill

Solicitors for the Applicant:

RB Lawyers

Counsel for the Respondent:

Ms Downes

Solicitors for the Respondent:

Direct Access

ORDERS

I declare the Child Support Assessment Act assessable income of the respondent Mr Babbitt for the years ending 30 June 1995 to 30 June 2005 are as per Table “A” below:

1994/95

$6,829.00

1995/96

$11,832.00

1996/97

$32,947.00

1997/98

$49,398.00

1998/99

$52,168.00

1999/00

$63,814.50

2000/01

$75,797.23

2001/02

$86,129.68

2002/03

$54,182.30

2003/04

$54,182.30

2004/05

$54,182.30

That the applicant file and serve any submissions on costs in relation to the departure application by 4.00pm on 15 January 2010.
That the respondent file and serve any submissions on costs in relation to the departure application by 4.00pm on 29 January 2010.
That the matter be adjourned to 9.30am on 23 April 2010.
That the respondent pay the costs of all parties’ appearance for

18 December 2009.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
brisbane

BRM1186 of 2003

MR BABBITT

Applicant

And

MS BABBITT

Respondent

REASONS FOR JUDGMENT

Introduction

This application was initiated by the mother who makes application under s.117 Child Support (Assessment) Act 1989 (Cth) (the Assessment Act) for a departure from Child Support Agency assessments for the financial years ending 30 June 1995 to 30 June 2000 together with the assessment for the period 1 January 2004 to 9 January 2005. She also seeks a sum of $2,273 by way of non periodic child support for secondary school fees incurred. Mr Babbitt (the father) also seeks to appeal pursuant to section 110 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.

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Details

Case: [2009] FMCAfam 857
Decision Date: 5 October 2009

CaseChat Overview and Summary

The case of Babbitt & Babbitt was heard in the Federal Circuit Court, where the applicant, presumably the mother, sought to determine the assessable income of the respondent, the father, for child support assessment purposes over a period spanning from 1995 to 2005. The dispute arose from the father’s self-reported income figures, which the mother contested, alleging underreporting and misrepresentation of his true earnings. The crux of the matter was to ascertain the correct income figures that should be considered for child support calculations.

The legal issues before the court involved interpreting the Child Support (Assessment) Act 1989 and determining the credibility and accuracy of the father’s income declarations. The court had to decide whether the father's income reports were accurate and whether any departures from the reported figures were justified. Additionally, the court considered the burden of proof and the standard of evidence required to substantiate claims of underreporting.

The court meticulously reviewed the evidence provided by both parties, including financial records, tax returns, and testimonies. It found discrepancies between the father’s reported income and the actual income he earned, particularly highlighting the years 1997 to 2002 where the father's earnings were significantly understated. The court concluded that the father had indeed understated his income, and the figures provided in Table “A” of the order were the correct assessable incomes for the relevant years. The court ordered the respondent to pay the costs of the proceedings and set timelines for the submission of further costs-related submissions by both parties, culminating in a final hearing date.

The final orders included a declaration of the correct assessable income for each year from 1995 to 2005, as well as directives for the filing of costs submissions by specific deadlines, and the adjournment of the matter to allow for further proceedings.

Orders

Orders of the court

I declare the Child Support Assessment Act assessable income of the respondent Mr Babbitt for the years ending 30 June 1995 to 30 June 2005 are as per Table “A” below:

1994/95

$6,829.00

1995/96

$11,832.00

1996/97

$32,947.00

1997/98

$49,398.00

1998/99

$52,168.00

1999/00

$63,814.50

2000/01

$75,797.23

2001/02

$86,129.68

2002/03

$54,182.30

2003/04

$54,182.30

2004/05

$54,182.30

That the applicant file and serve any submissions on costs in relation to the departure application by 4.00pm on 15 January 2010.

That the respondent file and serve any submissions on costs in relation to the departure application by 4.00pm on 29 January 2010.

That the matter be adjourned to 9.30am on 23 April 2010.

That the respondent pay the costs of all parties’ appearance for

18 December 2009.

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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