HUGHES & HUGHES - [2018] FamCA 1079

FAMILY COURT OF AUSTRALIA

HUGHES & HUGHES

[2018] FamCA 1079

FAMILY LAW – CHILD SUPPORT AGREEMENT – application to set aside – self-represented litigants – basis of the application appears to be that he no longer has the funds to pay, but the evidence does not support a conclusion that would satisfy the requirements of s 136 of the Child Support (Assessment) Act 1989 (Cth) – application must fail.

FAMILY LAW – CHILD SUPPORT DEPARTURE – where the father seeks to depart from administrative assessments which he says are not a true reflection of his income by virtue of the fact that he has dividends provided to him to discharge Division 7A tax distributions – where there is a decision of the Administrative Appeals Tribunal relating to a discrete period which was also before the Court but around which there was no review application and the father relied upon the decision as some form of evidence – where the Court was not satisfied that the evidence was comprehensive to show financial resources and property which was mentioned in the AAT judgment and as such, the Court did not have sufficient evidence to enable it to make a finding that it was just and equitable to depart from the administrative assessment and that there were otherwise no special circumstances – application must fail.

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Income Tax Assessment Act 1997 (Cth)

Bank of New South Wales v Rogers (1941) 65 CLR 42
Hezon and Hezon (Child support) [2018] AATA 3062
Thorne v Kennedy [2017] HCA 49

APPLICANT:

Mr Hughes

RESPONDENT:

Ms Hughes

FILE NUMBER:

DGC

3760

2011

DATE DELIVERED:

18 December 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

04 December 2018

REPRESENTATION

THE APPLICANT:

In Person

THE RESPONDENT:

No Appearance

Orders

That the initiating application (as amended) filed on 14 September 2018 is dismissed.
That the application in a case filed on 15 August 2018 is struck out.
That the respondent’s amended response filed 17 August 2018 is struck out.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hughes & Hughes has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 3760 of 2011

Mr Hughes

Applicant

And

Ms Hughes

Respondent

REASONS FOR JUDGMENT

Mr Hughes (“the father”) filed an initiating application in the Federal Circuit Court of Australia on 15 July 2016 seeking to set aside a child support agreement he…

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: HUGHES & HUGHES [2018] FamCA 1079
Case: [2018] FamCA 1079
Decision Date: 18 December 2018

CaseChat Overview and Summary

In the matter of Hughes & Hughes, the father sought to set aside a child support agreement and to depart from administrative child support assessments. The proceedings were heard by Cronin J.

The court was required to determine whether the father had established grounds to set aside the child support agreement under section 136 of the *Child Support (Assessment) Act 1989* (Cth), and whether it was just and equitable to depart from the administrative assessments, considering the father's financial circumstances and the existence of any special circumstances.

Regarding the application to set aside the child support agreement, the court found that the father's stated reason of lacking funds to pay was not supported by evidence that would satisfy the requirements of section 136 of the Act, leading to the dismissal of this aspect of the application. In relation to the departure from administrative assessments, the father argued that the assessments did not accurately reflect his income due to dividends provided to discharge Division 7A tax distributions. While a decision of the Administrative Appeals Tribunal concerning a discrete period was presented, the court was not satisfied that the evidence comprehensively demonstrated the financial resources and property mentioned in that judgment. Consequently, the court lacked sufficient evidence to make a finding that it was just and equitable to depart from the administrative assessment, nor were there any special circumstances established.

The court ordered that the initiating application (as amended) filed on 14 September 2018 be dismissed. Additionally, the application in a case filed on 15 August 2018 and the respondent’s amended response filed on 17 August 2018 were struck out.

Orders

Orders of the court

That the initiating application (as amended) filed on 14 September 2018 is dismissed.

That the application in a case filed on 15 August 2018 is struck out.

That the respondent’s amended response filed 17 August 2018 is struck out.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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