BELL & NAHOS (No.2) - [2017] FCCA 2408

FEDERAL CIRCUIT COURT OF AUSTRALIA

BELL & NAHOS (No.2)

[2017] FCCA 2408

Catchwords:
CHILD SUPPORT – The Mother’s application seeking a departure order pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989 (“the Act”) and that such support be paid by way a lump sum payment to be credited 100% against the Father’s child support liability pursuant to section 123(1)(b) of the Act – the Father opposes the application for a departure order and order for a lump sum payment.

HELD – Order made for a departure order – order made for the Father to make a lump sum payment to the Mother to be credited 100% against his child support liability until child completes primary school.

Legislation:

Child Support (Assessment) Act 1989, ss.3, 98E, 116, 117, 123, 123A, 125

Cases cited:

Saberton & Saberton [2013] FamCAFC 89

Applicant:

MS BELL

Respondent:

MR NAHOS

File Number:

MLC 10071 of 2012

Judgment of:

Judge Bender

Hearing date:

18 May 2017

Date of Last Submission:

4 August 2017

Delivered at:

Melbourne

Delivered on:

4 October 2017

REPRESENTATION

Counsel for the Applicant:

Ms Dellidis

Solicitors for the Applicant:

Farrar Gesini Dunn

Counsel for the Respondent:

Self-Represented

Solicitors for the Respondent:

Not Applicable

ORDERS

There be a child support departure order pursuant to section 116(1)(b) of Division 4 of the Child Support (Assessment) Act 1989 (Cth).
Pursuant to section 123(1)(b) of the Child Support (Assessment) Act 1989 (Cth) the Father pay child support to the Mother by way of a lump sum payment in the sum of $30,346.12 on or before 3 December 2017.
Pursuant to section 123A(3) of the Child Support (Assessment) Act 1989 (Cth) the payment shall be credited 100% against any liability of the Father for an administrative assessment of child support in relation to the child X born (omitted) 2011 for the period 11 June 2014 to 12 December 2023.

IT IS NOTED that publication of this judgment under the pseudonym Bell & Nahos (No.2) 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

This is the Mother’s application there be a child support departure order pursuant to section 116(1)(b) of Division 4 of the Child Support (Assessment) Act 1989 (“the Act”) in relation to the child support the Father pays for the parties’ son X born (omitted) 2011 (“X”).
The Mother is also seeking orders be made pursuant to section 123(1)(b) of the Act that the Father pay child support to the Mother by way of a lump sum payment of $50,774, less any monies already paid to the Mother pursuant to the orders made on 21 August 2015 by Judge Small within 60 days. The Mother seeks that pursuant to section 125 of the Act the lump sum payment by the Father be credited 100% against any liability of the Father for an administrative assessment of child support in relation…

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 (No.2)

Details

AGLC: Bell and Nahos (No.2) [2017] FCCA 2408
Case: [2017] FCCA 2408
Decision Date: 4 October 2017

CaseChat Overview and Summary

In *Bell & Nahos (No.2)*, the Federal Circuit Court of Australia considered an application by the Mother for a departure order under section 116(1)(b) of the *Child Support (Assessment) Act 1989* (Cth). The Mother also sought an order for the Father to make a lump sum payment, to be credited 100% against his child support liability, pursuant to section 123(1)(b) of the Act. The Father opposed both the departure order and the lump sum payment.

The central legal issues before Judge Bender were whether the circumstances warranted a departure from the usual child support assessment, and if so, whether a lump sum payment was an appropriate method to satisfy the Father's child support obligations. The court was required to determine if the statutory criteria for a departure order were met and to consider the implications of a lump sum payment under the relevant provisions of the Act.

The court found in favour of the Mother, making a child support departure order. It reasoned that the circumstances justified a departure from the standard assessment. Consequently, the court ordered the Father to pay a lump sum of $30,346.12 to the Mother by 3 December 2017. This payment was to be credited 100% against any future child support liability of the Father for the child X, born in 2011, for the period spanning from 11 June 2014 to 12 December 2023.

Orders

Orders of the court

There be a child support departure order pursuant to section 116(1)(b) of Division 4 of the Child Support (Assessment) Act 1989 (Cth).

Pursuant to section 123(1)(b) of the Child Support (Assessment) Act 1989 (Cth) the Father pay child support to the Mother by way of a lump sum payment in the sum of $30,346.12 on or before 3 December 2017.

Pursuant to section 123A(3) of the Child Support (Assessment) Act 1989 (Cth) the payment shall be credited 100% against any liability of the Father for an administrative assessment of child support in relation to the child X born (omitted) 2011 for the period 11 June 2014 to 12 December 2023.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.