BELL & NAHOS - [2015] FCCA 2259

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELL & NAHOS

[2015] FCCA 2259

Catchwords:
CHILD SUPPORT – Child support – departure order – whether the father has deliberately changed his occupation and reduced his income in order to pay less child support for his four-year-old son – lump sum payment – whether it would be just and equitable and otherwise proper to order the father to make a lump sum payment.

Legislation:

Child Support (Assessment) Act 1989, ss.116, 117, 123A

Family Law Act 1975, s.90SN

Rice v Asplund (1979) FCL 90-725
Saberton & Saberton [2013] FamCAFC 89
Walsh v Barron [2014] WASCA 124

Applicant:

MS BELL

Respondent:

MR NAHOS

File Number:

MLC 10071 of 2012

Judgment of:

Judge Small

Hearing date:

17 April 2015

Date of Last Submission:

17 April 2015

Delivered at:

Melbourne

Delivered on:

21 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr J. Stanley

Solicitors for the Applicant:

Farrar Gesini Dunn

The Respondent:

In person

ORDERS

The Court not being satisfied under s.117(1)(b)(ii) of the Child Support (Assessment) Act 1989 that it would be just and equitable or otherwise proper to make the Departure Order sought in the Application filed 11 July 2014, the said Application for a departure order is dismissed.
The Court being satisfied that an order for a lump sum payment of child support is just and equitable or otherwise proper under s.123A(1) of the Child Support (Assessment) Act 1989, the Respondent shall pay to the Applicant within 60 days the sum of $13,853.88 less any monies the Department of Human Services (Child Support) has collected from him since 11 June 2014 (“the payment”).
Pursuant to s.125 of the Child Support (Assessment) Act 1989 the payment shall be credited 100% against any liability of the Respondent for an administrative assessment of child support in relation to the child X born (omitted) 2011 for the period 11 June 2014 to 10 June 2017.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10071 of 2012

MS BELL

Applicant

And

MR NAHOS

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings arise from previous property and parenting proceedings between Ms Bell (“Ms Bell” or “the mother”) and Mr Nahos (“Mr Nahos” or “the father”) which were concluded on 3 September 2013.
There are essentially two parts to these proceedings:
· the first relates to property settlement orders made 3 September 2013 and is the result of an Application made by Ms Bell under s.90SN of the Family Law Act 1975; and
· the second is a Departure Application filed by Ms Bell under s.116 and a lump sum payment application filed under s.123A of the Child Support (Assessment) Act 1989 (“the Act”) in relation to the child support Mr Nahos pays for the support of the parties’ child X born (omitted) 2011 (“X”).
The first part of the proceedings was resolved…

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 BELL & NAHOS

Details

AGLC: Bell and Nahos [2015] FCCA 2259
Case: [2015] FCCA 2259
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the matter of *Bell & Nahos*, heard by Judge Small, the Applicant sought a departure order under the *Child Support (Assessment) Act 1989* (Cth). The Respondent sought a lump sum payment of child support.

The primary legal issue before the Court was whether it was just and equitable to make the departure order sought by the Applicant. Additionally, the Court was required to determine if a lump sum payment of child support was just and equitable under the Act.

The Court dismissed the Applicant's application for a departure order, finding it was not satisfied that such an order would be just and equitable or otherwise proper under section 117(1)(b)(ii) of the Act. However, the Court was satisfied that a lump sum payment of child support was just and equitable under section 123A(1) of the Act. Consequently, the Respondent was ordered to pay the Applicant a sum of $13,853.88, less any amounts collected by the Department of Human Services (Child Support) since 11 June 2014. This payment was to be credited 100% against the Respondent's liability for administrative assessments of child support for the child X for the period 11 June 2014 to 10 June 2017, pursuant to section 125 of the Act.

Orders

Orders of the court

The Court not being satisfied under s.117(1)(b)(ii) of the Child Support (Assessment) Act 1989 that it would be just and equitable or otherwise proper to make the Departure Order sought in the Application filed 11 July 2014, the said Application for a departure order is dismissed.

The Court being satisfied that an order for a lump sum payment of child support is just and equitable or otherwise proper under s.123A(1) of the Child Support (Assessment) Act 1989, the Respondent shall pay to the Applicant within 60 days the sum of $13,853.88 less any monies the Department of Human Services (Child Support) has collected from him since 11 June 2014 (“the payment”).

Pursuant to s.125 of the Child Support (Assessment) Act 1989 the payment shall be credited 100% against any liability of the Respondent for an administrative assessment of child support in relation to the child X born (omitted) 2011 for the period 11 June 2014 to 10 June 2017.

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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