Brenner & Chessington - [2022] FedCFamC2F 1354

Federal Circuit and Family Court of Australia
(DIVISION 2)
Brenner & Chessington [2022] FedCFamC2F 1354

File number(s): SYC 6482 of 2021

Judgment of: JUDGE MONAHAN

Date of judgment: 6 October 2022

Catchwords: FAMILY LAW – Child Support – child support departure application – two children now aged 22 – where amount of child support payable was significantly increased by the applicant withdrawing his superannuation entitlements prior to the relevant child support terminating events –where the Applicant unsuccessfully applied to the Administrative Appeals Tribunal for a review of the Child Support Registrar’s decision – where there was no appearance by the Respondents – where leave is granted to depart from the assessment of child support payable by the applicant – where departure order made

Legislation: Child Support (Assessment Act) 1989 (Cth) ss 64AH, 98S, 111, 112, 117, 118

Cases cited:
[2021] FCCA 668

Yewen & Child Support Registrar & Anor [2014] FCCA 2399

Division: Division 2 Family Law

Number of paragraphs: 70

Date of last submission/s: 14 July 2022

Date of hearing: 14 July 2022

Place: Sydney

Solicitor for the Applicant: Ms Hawes

First Respondent: No appearance

Second Respondent: No appearance
ORDERS

SYC 6482 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BRENNER

Applicant

AND:
MS CHESSINGTON

First Respondent

MS MATTHEWS

Second Respondent

order made by:

JUDGE MONAHAN

DATE OF ORDER:

6 October 2022

THE COURT ORDERS THAT:
1.Pursuant to section 112 of the Child Support (Assessment) Act 1989, leave is granted to depart from the assessment of child support payable by the Applicant, Mr Brenner to:
(a)the First Respondent, Ms Chessington (for the child, Mr B born 2000) for the period from 1 July 2017 to 10 July 2018; and
(b)the Second Respondent, Ms Matthews (for the child, Ms C born 2000) from 1 July 2017 to 12 August 2018.

2.Pursuant to section 118 of the Child Support (Assessment) Act 1989 there be a departure to the child support assessment payable by the Applicant, Mr Brenner to:
(a)the First Respondent, Ms Chessington (for the child, Mr B born 10 July 2000) for the period from 1 July 2017 to 10 July 2018 and the annual rate of child support payable by the Applicant be adjusted to the minimum annual assessment rate; and
(b)the Second Respondent, Ms Matthews (for the child, Ms C born 12 August 2000) from 1 July 2017 to 12 August 2018 and the annual rate of child support payable by the Applicant be adjusted to the minimum annual assessment rate.

3.All extant applications be otherwise dismissed.

AND THE COURT DIRECTS THAT:
4.The legal representative for the Applicant serve the Child Support Agency with a copy of these Orders (and the written reasons) for their attention, together with a request for a copy of these Orders to be forwarded to the First and Second Respondent.

AND THE COURT NOTES THAT:
A.Mr B turned 18 years old in 2018 and Ms C turned 18 years old in 2018.

Note: The form of the…

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: [2022] FedCFamC2F 1354
Decision Date

CaseChat Overview and Summary

The proceedings between Mr Brenner ("the Applicant") and Ms Chessington and Ms Matthews (collectively, "the Respondents") were heard by Judge Monahan in the Federal Circuit and Family Court of Australia. The primary issue requiring determination was whether leave should be granted under sections 111 and 112 of the Child Support (Assessment) Act 1989 (Cth) for a retrospective re-assessment of child support owed by the Applicant from 1 July 2017 (being the start of the first financial year when the Applicant stopped receiving income) to the relevant terminating events (being the respective 18th birthdays of the children). If leave was granted, the Court was required to determine whether the Court should make an Order pursuant to section 118(g) of the Act to adjust the Applicant’s taxable income to ‘nil’ for the relevant periods or to otherwise amend the assessment “so that approximately $201,000 of his superannuation payments are not considered ‘taxable income’ within the last 5 years”. The Applicant relied on section 117(2)(c)(ia) and submitted that his application was 'out of the ordinary'. The Applicant argued that the superannuation monies he received were in the nature of savings and were not income that he earned in the relevant child support year. Moreover, the necessity to withdraw the superannuation monies was largely because of the Applicant’s serious illness and his inability to earn an income. The Court accepted this submission and was satisfied that a ground for departure had been established because the Applicant had been assessed to pay child support at a rate not commensurate with his actual income in the relevant period for which he sought a departure order. The Court was satisfied that it would be just and equitable and otherwise proper to make a departure order given that the Applicant could establish hardship in circumstances where the Respondents had not opposed these proceedings or provided any evidence of any hardship that they or the children would incur if the order was made. The Court was also satisfied that the Applicant did not deliberately reduce his income during the periods in question to evade his child support responsibilities. Consequently, the Court made orders for there to be a departure from the assessments of child support payable by the Applicant from 1 July 2017 to the relevant terminating events (being the children’s 18th birthdays). As to the form of the order, the Court adjusted the annual rate of child support payable by the Applicant to the minimum annual assessment rate for the relevant period.

Orders