BEARD & FISHER - [2013] FCCA 755

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEARD & FISHER

[2013] FCCA 755

Catchwords:
CHILD SUPPORT – Departure order – lump sum payment – application for review out of time – whether capital sum to be considered in child support assessment – earning capacity.

Legislation:
Child Support (Assessment) Act 1989, ss.111, 112, 112(2), 116, 117(2)(ia) & (ib), 118, 123(3)
Child Support (Registration and Collection) Act 1988, ss.89, 90

Cases cited:
Lightfoot & Hampson (1996) FLC 92-663
Archer & Archer [2013] FCCA 226
Cazet & Faulkner [2011] FMCAfam 117
Christian & Donald (2004) FamCA 1171
CSR & Harrison (1995) 20 FamLR 101
Bendeich & Bendeich (1993) FLC 92-355
Boyd & Boyd (2012) FMCAfam 439
McGuiness v Cowie (2002) FLC 98-018
Reinhold & Casey [2008] FMCAfam 772
Crawford-Hall & Lloyd [2007] FMCAfam 563

Applicant:

MS BEARD

Respondent:

MR FISHER

File Number:

MLC 5637 of 2007

Judgment of:

Judge Small

Hearing date:

2 May 2013

Date of Last Submission:

2 May 2013

Delivered at:

Melbourne

Delivered on:

12 July 2013

REPRESENTATION

Counsel for the Applicant:

Mr Glass

Solicitors for the Applicant:

Victoria Legal Aid

The Respondent:

Appearing on his own behalf

ORDERS

In substitution for periodic payments and pursuant to Section 123A of the Child Support (Assessment) Act 1989 the respondent pay child support to the Applicant for the child X born (omitted) 2004 by way of a lump sum payment of $42,500 within 14 days of the date of these orders. This sum is to be credited against the administrative assessments of child support.
From 1 July 2014, the lump sum payment specified in paragraph (1) of these orders is to be credited as 100% of the amount payable under the relevant administrative assessment of child support and pursuant to Section 69A of the Child Support (Registration and Collection) Act 1988, until the lump sum is exhausted.
That pursuant to Section 116(1)(b) of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment in relation to the child X born (omitted) 2004 for the period 1 July 2014 to 4 February 2022.
That the respondent’s annual rate of child support referred to in paragraph (3) be fixed at $4,500 per annum for the child X.
That the annual rate of child support payable in paragraph 4 is increased from 1 July each year in accordance with variations in the Consumer Price Index for Melbourne.
In the event that the Respondent fails to comply with paragraph (1) of these orders, the Applicant have leave to apply at short notice for orders for enforcement including but not limited to orders allowing her to register a caveat over the respondent’s property and that he be restrained from travelling overseas.
That until the payment specified in paragraph (1) of these orders is made in full, the Respondent be and is hereby restrained by injunction from reducing or causing any other person to reduce the balance in (omitted) Bank account number (omitted) to below $50,000.
That all extant applications are otherwise dismissed and…

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 BEARD & FISHER

Details

AGLC: BEARD & FISHER [2013] FCCA 755
Case: [2013] FCCA 755
Decision Date: 12 July 2013

CaseChat Overview and Summary

This case involved an application by Mr Fisher (the respondent) seeking departure orders from child support assessments made by the Child Support Agency (CSA) and the Social Security Appeals Tribunal (SSAT). The applicant, Ms Beard, sought child support for their child, X. Mr Fisher sought to make his application in relation to the SSAT decision out of time, which had been made on 15 June 2010.

The primary legal issues before the court were whether to grant Mr Fisher leave to proceed out of time with his application for a departure order concerning the SSAT decision, and if so, whether to grant a departure order from the administrative assessments. In considering the grant of leave, the court was required to have regard to the responsibility and reason for the delay, the hardship to Mr Fisher if leave was not granted, and the hardship to Ms Beard if leave was granted, as stipulated by section 112(4) of the Child Support (Assessment) Act 1989.

The court found that Mr Fisher had not provided a satisfactory reason for his delay in seeking to revisit the SSAT decision. While he claimed legal costs were prohibitive, the court noted his significant inheritance received in March 2009 and substantial remaining assets, rendering his assertion of financial inability to pursue legal action "ludicrous." Consequently, the court determined that Mr Fisher had not satisfied the first requirement for granting leave to proceed out of time.

Ultimately, the court made orders for a lump sum child support payment of $42,500 to be paid by the respondent to the applicant, to be credited against administrative assessments. The court also ordered a departure from administrative assessment for the period 1 July 2014 to 4 February 2022, fixing the respondent's annual child support rate at $4,500, to be increased annually in accordance with the Consumer Price Index. The court also made orders restraining the respondent from reducing the balance in a specific bank account and granted the applicant leave to apply for enforcement orders if the lump sum payment was not made.

Orders

Orders of the court

In substitution for periodic payments and pursuant to Section 123A of the Child Support (Assessment) Act 1989 the respondent pay child support to the Applicant for the child X born (omitted) 2004 by way of a lump sum payment of $42,500 within 14 days of the date of these orders. This sum is to be credited against the administrative assessments of child support.

From 1 July 2014, the lump sum payment specified in paragraph (1) of these orders is to be credited as 100% of the amount payable under the relevant administrative assessment of child support and pursuant to Section 69A of the Child Support (Registration and Collection) Act 1988, until the lump sum is exhausted.

That pursuant to Section 116(1)(b) of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment in relation to the child X born (omitted) 2004 for the period 1 July 2014 to 4 February 2022.

That the respondent’s annual rate of child support referred to in paragraph (3) be fixed at $4,500 per annum for the child X.

That the annual rate of child support payable in paragraph 4 is increased from 1 July each year in accordance with variations in the Consumer Price Index for Melbourne.

In the event that the Respondent fails to comply with paragraph (1) of these orders, the Applicant have leave to apply at short notice for orders for enforcement including but not limited to orders allowing her to register a caveat over the respondent’s property and that he be restrained from travelling overseas.

That until the payment specified in paragraph (1) of these orders is made in full, the Respondent be and is hereby restrained by injunction from reducing or causing any other person to reduce the balance in (omitted) Bank account number (omitted) to below $50,000.

That all extant applications are otherwise dismissed and removed from the list of cases awaiting judicial determination.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The orders sought in Mr Fisher's Response essentially ask that the court make departure orders in relation to both the SSAT and CSA decisions and that he be permitted to make the application in relation to the SSAT decision out of time.The question of whether leave should be granted for the Respondent to proceed out of time in relation to the SSAT decision As it is Mr Fisher’s application to have those decisions revisited, it is first incumbent upon him to show why the application in relation to the SSAT decision should be granted out of time, that decision having been made on 15 June 2010. In his Affidavit sworn 20 September 2012, he states the following:13. I understand that if I am to be successful in the aspect of these proceedings seeking an extension of time I must show three things. Firstly, I must show good reason for my delay in bringing the proceedings. Secondly, I must establish some merit in the substantive application for a decrease in my past child support. Thirdly, I must show that the applicant will not be unduly prejudiced by granting me my extension of time. I am not sure where Mr Fisher finds these three factors. The matters the court must have regard to when deciding whether to grant leave to make an application for an order in respect of an assessment made more than 18 months previously are set out in s.112(4) of the Act, which says:112(4) Matters to be considered. In considering whether to grant leave under subsection (1), the court must have regard to:(a) any responsibility, and reason, for the delay in:(i) making an application under section 98B or 116; or(ii) making a determination under section 98S;(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and(c) the hardship to the other party or parties (other than the Registrar)( if leave is granted. In relation to the question of delay, Mr Fisher admits that the delay is his responsibility, and states, at paragraph 15 of his Affidavit of 20 September 2012 (“the September Affidavit”):I sought legal advice in 2010 over the issue but the costs quoted to me of litigating the matter were just completely outside my budget. It was not until now (when I have found myself in court opposed to the applicant in other proceedings) that the issue has become cost effective for me. This statement is at best disingenuous. Mr Fisher received his inheritance of some $850,000 from his mother’s estate in March 2009 and at the time of trial, there were about $640,000 worth of assets remaining. To say that he did not seek a review of the CSA decision or appeal the SSAT decision after March 2009 because he could not afford the legal fees is simply ludicrous. There being no other reason given for the delay, I find that Mr Fisher has not satisfied the first of the three matters I must consider in deciding whether to grant his application to proceed with his departure order application out of time. He next sets out his case in relation to the second matter, that case being (at paragraph 17):In that respect I note the inherent unfairness of the situation where I have been charged child support on an income way in excess of what I have been able to earn from my investments. I have always invested my inheritance prudently. My tax returns (which, along with my other relevant documents I will bring to court with me as required by the Rules) will confirm that the actual incomes I have been able to generate from my investments have not come anywhere near where the Child Support Agency and SSAT’s calculation suggest they would have.

Ratio Decidendi

Legal Principle Established

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