Berge and Berge - [2013] FMCAfam 38

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BERGE & BERGE

[2013] FMCAfam 38

CHILD SUPPORT – Departure Application – where Social Security Appeals Tribunal declined to make a decision because the issues were too complex – whether ground for departure established – whether just and equitable to make an order under Division 4 of Part 7 of the Child Support (Assessment) Act 1989 (Cth) – whether it is otherwise proper to make an order under Division 4 of Part 7 of the Child Support (Assessment) Act 1989 (Cth).
PRACTICE AND PROCEDURE – Application to re-open case – where applicant obtained fresh evidence.

Child Support (Assessment) Act 1989, ss.3, 98E, 114, 116, 117, 118
Family Law Act 1975, ss.75(2), 79A

Berge & Berge & Ors [2009] FamCA 968
Christian & Donald [2004] FamCA 1171; (2008) FLC 93-367
Gyselman & Gyselman (1991) 15 Fam LR 219; FLC 92-279
Jones v Dunkel (1959) 101 CLR 298

Applicant:

MS BERGE

Respondent:

MR BERGE

File Number:

SYM 7148 of 2005

Judgment of:

Scarlett FM

Hearing dates:

24 March, 3 June 2010, 21 June 2011

Date of Last Submission:

21 June 2011

Delivered at:

Sydney

Delivered on:

29 January 2013

REPRESENTATION

Solicitors for the Applicant:

Hamish Cumming Family Lawyers

Solicitors for the Respondent:

In person

ORDERS

The Respondent’s child support income for the period 1 January 2009 to 31 December 2009 is set at $100,000.00 (one hundred thousand dollars).
The Respondent’s child support income for the period 1 January 2010 to 31 December 2010 is set at $100,000.00 (one hundred thousand dollars).
Written submissions in support of any application for costs are to be filed and served within 21 days and written submissions in opposition to any such application are to be filed and served within 28 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYM 7148 of 2005

MS BERGE

Applicant

And

MR BERGE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for departure from assessment of child support made by the wife. The husband is currently assessed to pay $nil by way of child support for the parties’ daughter. It is her application, which was commenced by a Notice of Appeal filed on 19 August 2009, that the husband’s child support income should be deemed to be 2.5 times the EAWE (the annual equivalent of all employees’ average total weekly earnings).
The husband opposes the Application. By his Response, filed on 7 December 2009, he seeks an order that the child support payable by him be “as assessed by the Child Support Agency”.

Background

The parties commenced living together in August 1996 and were married [in] 1999.
There is one child of the marriage, [X], who lives with the wife. [X] was born [in] 2000.
The parties separated on either 24[1] or 26[2] March 2004 and were divorced on 17 November 2005.
[1] According to their…

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

AGLC: Berge and Berge [2013] FMCAfam 38
Case: [2013] FMCAfam 38
Decision Date

CaseChat Overview and Summary

This is an Application for departure from the assessment of child support made by the wife. The husband is currently assessed to pay $nil by way of child support for the parties’ daughter. It is the wife’s application, which was commenced by a Notice of Appeal filed on 19 August 2009, that the husband’s child support income should be deemed to be 2.5 times the EAWE (the annual equivalent of all employees’ average total weekly earnings). The husband opposes the Application. By his Response, filed on 7 December 2009, he seeks an order that the child support payable by him be “as assessed by the Child Support Agency”. The wife filed a Notice of Appeal against a decision of the Social Security Appeals Tribunal and was granted leave to re-open her case. The Federal Magistrate considered the evidence and submissions and was not satisfied that the husband was a reliable witness. She formed a negative view of his credibility. She found that a ground for departure exists and that it would be both just and equitable and otherwise proper to make an order under Division 4 of Part 7 of the Child Support (Assessment) Act 1989. She proposed to set the husband’s child support income at $100,000.00 for the periods 1 January 2009 to 31 December 2009 and 1 January 2010 to 31 December 2010. If either party seeks to pursue an application for costs, he or she may do so by way of written submission, to be filed and served on the other party within 21 days. A further 7 days will be allowed for any written submission in reply.

Orders