Boer and Magee - [2017] FCCA 1970

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOER & MAGEE

[2017] FCCA 1970

Catchwords:
CHILD SUPPORT – Application pursuant to s.112 of the Child Support (Assessment) Act for leave for the court to make an order under s. 118 of the Child Support (Assessment) Act in respect of a day in a child support period more than 18 months but less than 7 years earlier – leave granted – concurrent determination of whether an order should be made pursuant to s. 118 – departure order made.

Legislation:
Child Support (Assessment) Act 1989, ss.56, 58, 98S, 111, 112, 117, 118

Applicant:

MR BOER

Respondent:

MS MAGEE

Amicus Curiae:

CHILD SUPPORT REGISTRAR

File Number:

NCC 397 of 2017

Judgment of:

Judge Terry

Hearing date:

7 August 2017

Date of Last Submission:

7 August 2017

Delivered at:

Newcastle

Delivered on:

18 August 2017

REPRESENTATION

The Applicant:

In Person

The Respondent:

In Person

For the Amicus Curiae:

Lyn James Acting Principal Government Lawyer, Legal Services Division, Department of Human Services

ORDERS

Pursuant to s. 112 of the Child Support (Assessment) Act 1989 leave is granted for the court to make an order under s. 118 of the Child Support (Assessment) Act 1989 in respect of a day in a child support period which is more than 18 months but less than 7 years earlier than the day on which the application is made.
Noting that the court is satisfied that it is just and equitable and otherwise proper to depart from the administrative assessment of child support payable by MR BOER to MS MAGEE for the support of [X] born 1994, [Y] born 1995 and [Z] born 1997;
the amount of child support payable by MR BOER for the periods until 9 July 2015 shall be set at the amount of child support already paid as at the date of this order, including any funds held by the Child Support Registrar and yet to be disbursed.
The application filed on 17 February 2017 is otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Boer & Magee is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 397 of 2017

MR BOER

Applicant

And

MS MAGEE

First Respondent

And

CHILD SUPPORT REGISTRAR

(Amicus Curiae)

REASONS FOR JUDGMENT

Introduction

On 17 February 2017 Mr Boer filed an application seeking leave for the Child Support Registrar to make a determination under s. 98S of the Child Support (Assessment) Act in respect of assessments of child support made between 1 July 2008 and 11 September 2015.
He also sought an order that the child support for this period be set at a rate which meant that he owed no arrears of child support and that all “penalties/ interest/late fees” be “cancelled, waived or annulled” and that all intercepted tax returns be returned to him.
The purpose of Mr Boer’s application is to get rid of arrears of child support…

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: [2017] FCCA 1970
Decision Date: 18 August 2017

CaseChat Overview and Summary

In the matter of *Boer and Magee*, heard by Judge Terry, the dispute concerned an application to depart from an administrative assessment of child support. The applicant, Mr Boer, sought to vary the child support payable to Ms Magee for the support of their three children.

The primary legal issues before the court were whether leave should be granted to make an order under section 118 of the *Child Support (Assessment) Act 1989* (Cth) for a period more than 18 months prior to the application, and if so, whether it was just and equitable to depart from the administrative assessment.

The court granted leave pursuant to section 112 of the Act, finding it just and equitable and otherwise proper to depart from the administrative assessment. The court ordered that the child support payable by Mr Boer to Ms Magee for the periods until 9 July 2015 be set at the amount already paid, including any funds held by the Child Support Registrar. The application filed on 17 February 2017 was otherwise dismissed.

Orders

Orders of the court

Pursuant to s. 112 of the Child Support (Assessment) Act 1989 leave is granted for the court to make an order under s. 118 of the Child Support (Assessment) Act 1989 in respect of a day in a child support period which is more than 18 months but less than 7 years earlier than the day on which the application is made.

Noting that the court is satisfied that it is just and equitable and otherwise proper to depart from the administrative assessment of child support payable by MR BOER to MS MAGEE for the support of [X] born 1994, [Y] born 1995 and [Z] born 1997;

the amount of child support payable by MR BOER for the periods until 9 July 2015 shall be set at the amount of child support already paid as at the date of this order, including any funds held by the Child Support Registrar and yet to be disbursed.

The application filed on 17 February 2017 is otherwise dismissed.

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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