Kemp and Parsons - [2014] FamCA 865

FAMILY COURT OF AUSTRALIA

KEMP & PARSONS

[2014] FamCA 865

FAMILY LAW – CHILD SUPPORT – Jurisdiction – Application by mother seeking orders pursuant to s 116(1)(b) for a departure from administrative assessment in the context of parenting proceedings between the parties to the assessment pending in the Family Court of Australia – Whether Court is able to make order – Application adjourned for determination at same time as parenting issues.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth) s 116 and 117

Harris & Ellis [2011] FamCAFC 90

APPLICANT:

Ms Kemp

RESPONDENT:

Mr Parsons

FILE NUMBER:

LNC

628

2012

DATE DELIVERED:

14 October 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

27 August 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mrs Mooney

SOLICITOR FOR THE APPLICANT:

Wallace Wilkinson & Webster

COUNSEL FOR THE RESPONDENT:

Mr Murray

SOLICITOR FOR THE RESPONDENT:

Murray & Associates

Orders

The application in a case filed on behalf of the applicant mother on 1 August 2014 be stood over for determination at the same time as the hearing of the parenting proceedings listed to commence 10.00am 13 October 2014.

IT IS DIRECTED

The mother file and serve, on or before 4.00pm 12 September 2014, the following:-
(a)her application for departure from the administrative assessment issued 28 July 2014 (for the assessment period 7 July 2014 to 6 October 2015) including the basis upon which she seeks departure from the administrative assessment having regard to the provisions of s 117 of the Child Support (Assessment) Act 1989 (Cth). Such application and supporting affidavit shall comply with the Family Court Rules, including Div 4.2.5 of the Rules; and
(b)any affidavits upon which the mother seeks to rely regarding the change of departure application include such issues as her income, expenditure, assets, liabilities and financial resources and those of the father, the alleged high cost of child care, medical insurance, school fees and paternity leave.
The mother be restrained from filing or serving any further material in relation to the child support aspect of her claim after 12 September 2014 without the leave of the Court.
Nothing in this order derrogates from the directions made 7 July 2014 with regard to parenting proceedings.
The father file and serve any response to the application for departure from administrative assessment and affidavits in support of that response on or before 8 October 2014.
Nothing in this order derrogates from the directions made 7 July 2014 with regard to parenting proceedings.
Each party shall ensure that sealed copies of their respective application and response to application in regard to child support are served upon the Registrar of the Child Support Agency, together with a letter informing the Registrar that the proceedings may be heard at the hearing commencing 13 October 2014.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment by this…

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.

Continue reading Kemp and Parsons

Details

AGLC: Kemp and Parsons [2014] FamCA 865
Case: [2014] FamCA 865
Decision Date: 14 October 2014

CaseChat Overview and Summary

In the matter of *Kemp and Parsons*, Benjamin J of the Family Court of Australia considered an application by the mother for departure from an administrative assessment of child support. The dispute concerned the mother's challenge to the child support assessment issued on 28 July 2014, which covered the period from 7 July 2014 to 6 October 2015.

The primary legal issue before the Court was whether the mother had established grounds for a departure from the administrative assessment, pursuant to section 117 of the *Child Support (Assessment) Act 1989* (Cth). This required the Court to consider various factors, including the income, expenditure, assets, liabilities, and financial resources of both parents, as well as specific child-related costs such as childcare, medical insurance, school fees, and paternity leave.

Benjamin J directed that the mother's application for departure, along with supporting affidavits detailing the grounds for her claim and relevant financial information, be filed and served by 12 September 2014. The Court also ordered that the mother be restrained from filing further material on this aspect of her claim after that date without leave. The father was directed to file and serve any response and supporting affidavits by 8 October 2014. The application for departure was to be heard concurrently with the parenting proceedings scheduled for 13 October 2014. The Court further directed that both parties serve sealed copies of their respective child support applications and responses on the Registrar of the Child Support Agency.

Orders

Orders of the court

The application in a case filed on behalf of the applicant mother on 1 August 2014 be stood over for determination at the same time as the hearing of the parenting proceedings listed to commence 10.00am 13 October 2014.

IT IS DIRECTED

The mother file and serve, on or before 4.00pm 12 September 2014, the following:-

(a) her application for departure from the administrative assessment issued 28 July 2014 (for the assessment period 7 July 2014 to 6 October 2015) including the basis upon which she seeks departure from the administrative assessment having regard to the provisions of s 117 of the Child Support (Assessment) Act 1989 (Cth). Such application and supporting affidavit shall comply with the Family Court Rules, including Div 4.2.5 of the Rules; and

(b) any affidavits upon which the mother seeks to rely regarding the change of departure application include such issues as her income, expenditure, assets, liabilities and financial resources and those of the father, the alleged high cost of child care, medical insurance, school fees and paternity leave.

The mother be restrained from filing or serving any further material in relation to the child support aspect of her claim after 12 September 2014 without the leave of the Court.

Nothing in this order derrogates from the directions made 7 July 2014 with regard to parenting proceedings.

The father file and serve any response to the application for departure from administrative assessment and affidavits in support of that response on or before 8 October 2014.

Nothing in this order derrogates from the directions made 7 July 2014 with regard to parenting proceedings.

Each party shall ensure that sealed copies of their respective application and response to application in regard to child support are served upon the Registrar of the Child Support Agency, together with a letter informing the Registrar that the proceedings may be heard at the hearing commencing 13 October 2014.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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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