H and H - [2002] FMCAfam 381

FEDERAL MAGISTRATES COURT OF AUSTRALIA

H & H

[2002] FMCAfam 381

FAMILY LAW – Property settlement – spouse maintenance – child maintenance payable by step-parent – primary duty of parents – lump sum child support.

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro (1993) FLC 92-335
Clauson (1995) FLC 92-595
Russell v Russell (1999) FLC-92877
Elias v Elias (1977) FLC ¶90-267
Jordan and Jordan (1997) FLC ¶92-736
Hirst & Rosen (1982) FLC 91-230
Cooper & Cooper (1989) FLC 92-017
Day and Day (1993) FLC 92-333
Luckie and Luckie (1989) FLC 92-036
Bendeich and Bendeich (1993) FLC ¶92-355
Dwyer v McGuire (1993) FLC ¶92-420
Lightfoot v Hampson (1996) FLC ¶92-663

Applicant:

T H

Respondent:

B F H

File No:

HBM2251 of 2001

Delivered on:

20 November 2002

Delivered at:

Launceston

Hearing Date:

20 & 21 August 2002

Judgment of:

Roberts FM

REPRESENTATION

Counsel for the Applicant:

Mr. P. Fitzgerald

Solicitor for the Applicant:

The Legal Aid Commission of Tasmania

Counsel for the Respondent:

The Respondent appeared on his own behalf

ORDERS

That B F H (“the Husband”) do pay to T H (“the Wife”) the sum of $20,000.00 within sixty days of the date of this Order.
That there be a departure from administrative assessment in relation to the child E J H born 13^th May 1997 in that the annual rate payable by the Husband be set at $1,820.00 for the period commencing 1^st October 2002 and concluding on 30^th September 2004.
That pursuant to Section 141 of the Child Support (Assessment) Act 1989 the child support payable pursuant to Order No. 2 hereof be capitalised and be paid by the Husband as a lump sum within sixty days of the date of this Order.
That any periodic child support paid by the Husband pursuant to any administrative assessment for the period commencing 1^st October 2002 be credited towards his liability pursuant to Order No. 3 hereof.
That the Wife cause a sealed copy of these Orders to be served upon the Child Support Agency in Hobart.
That save as to costs the Wife’s Applications filed 17^th September 2001, 23^rd April 2002 and 20^th June 2002 and the Husband’s Response filed 14^th December 2001 be otherwise dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
LAUNCESTON

HBM2251 of 2001

T H

Applicant

And

B F H

Respondent

REASONS FOR JUDGMENT

Background and applications

The Applicant, T H (“the Wife”) and the Respondent, B F H (“the Husband”) were married on 26^th February 1996.
Because the Wife came from the Philippines, it was necessary for her to remain there until she received approval to settle in Australia. As a result, the parties did not commence cohabitation until early August 1996.
The parties separated in October 1998, so their period of cohabitation lasted a little more than two years.
There is one child of their relationship, E J H born 13^th May 1997 (“E”). However, the Wife has another daughter, who has taken…

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: H and H [2002] FMCAfam 381
Case: [2002] FMCAfam 381
Decision Date: 20 November 2002

CaseChat Overview and Summary

This matter was heard by the Family Court of Australia and concerned a dispute between B F H (the Husband) and T H (the Wife) regarding financial support for their child, E J H, born on 13th May 1997. The Wife sought modifications to the child support arrangements, including the lump sum payment of the child support and a departure from the administrative assessment. The Husband contested the Wife's applications, leading to a detailed examination of the legal principles governing child support orders.

The primary legal issues addressed by the court involved the interpretation and application of the Child Support (Assessment) Act 1989. Specifically, the court needed to determine whether the administrative assessment of child support was appropriate and if there were grounds for departing from it. Additionally, the court had to consider the appropriate method for capitalising child support, particularly in relation to lump sum payments and their treatment under the Act.

In its reasoning, the court found that the administrative assessment did not adequately account for the Husband's financial capacity to pay and the Wife's needs. The court concluded that a departure from the administrative assessment was warranted, setting the annual rate payable by the Husband at $1,820.00 for the specified period. The court also ruled that the child support should be paid as a lump sum, capitalised in accordance with Section 141 of the Child Support (Assessment) Act 1989. The court further directed that any periodic payments made by the Husband be credited towards the lump sum liability. The court dismissed other applications and responses, save as to costs.

The final orders of the court mandated the Husband to pay the Wife $20,000.00 within sixty days and required the Husband to pay the capitalised child support as a lump sum. The court also specified that any prior periodic payments be credited towards the lump sum liability. The Wife was directed to serve a sealed copy of these orders on the Child Support Agency in Hobart. All other applications and responses, except for costs, were dismissed.

Orders

Orders of the court

That B F H (“the Husband”) do pay to T H (“the Wife”) the sum of $20,000.00 within sixty days of the date of this Order.

That there be a departure from administrative assessment in relation to the child E J H born 13th May 1997 in that the annual rate payable by the Husband be set at $1,820.00 for the period commencing 1st October 2002 and concluding on 30th September 2004.

That pursuant to Section 141 of the Child Support (Assessment) Act 1989 the child support payable pursuant to Order No. 2 hereof be capitalised and be paid by the Husband as a lump sum within sixty days of the date of this Order.

That any periodic child support paid by the Husband pursuant to any administrative assessment for the period commencing 1st October 2002 be credited towards his liability pursuant to Order No. 3 hereof.

That the Wife cause a sealed copy of these Orders to be served upon the Child Support Agency in Hobart.

That save as to costs the Wife’s Applications filed 17th September 2001, 23rd April 2002 and 20th June 2002 and the Husband’s Response filed 14th December 2001 be 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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