Kennedy & McDermott - [2007] FMCAfam 524

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KENNEDY & McDERMOTT

[2007] FMCAfam 524

CHILD SUPPORT – Departure order – administrative assessment.

PRACTICE AND PROCEDURE – Discovery – meaning of full and frank disclosure – full and frank disclosure not provided.

Child Support (Assessment) Act, 1989 (Cth), s.117
Federal Magistrates Act, 1999 (Cth), s.45(1)
Federal Magistrates Court Rules, 2001 (Cth) rr. 24.02(1)(a), 24.03, 25A.03, 25A.08

Black v Kellner (1992) FLC 92-287
Genovese v BGC Construction Pty Ltd [2006] FMCA 1507

Applicant:

PAUL ANTHONY KENNEDY

Respondent:

GAYLE MCDERMOTT

File Number:

MLC 1038 of 2007

Judgment of:

Lucev FM

Hearing date:

22 June 2007

Date of Last Submission:

22 June 2007

Delivered at:

Brisbane (by telephone to Melbourne)

Delivered on:

26 July 2007

REPRESENTATION

Counsel for the Applicant:

Mr Baker

Solicitors for the Applicant:

LG Yves Michel & Co.

Counsel for the Respondent:

Mr Hoult

Solicitors for the Respondent:

Hardys

THE COURT ORDERS:

All extant applications be adjourned to 10.00 am on 30 August 2007 for hearing of two (2) days before FM Lucev.
Within 21 days the Applicant produce to the Respondent the documents requested in the letter from the Respondent’s Solicitors on 27 April 2007.
Within 21 days the Applicant provide to the Respondent copies of documents in accordance with Schedule A attached hereto, unless copies have already been provided subsequent to production in accordance with Order 2 herein.
The Applicant serve a copy of these orders on the Child Support Registrar.
Costs reserved.

AND THE COURT DECLARES under s.45 of the Federal Magistrate Act, 1999 (Cth) that it is appropriate in the interests of the administration of justice to allow discovery in this matter.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

MLC 1038 of 2007

PAUL ANTHONY KENNEDY

Applicant

And

GAYLE MCDERMOTT

Respondent

REASONS FOR JUDGMENT

Interim Orders made for Discovery

The Court made interim orders for discovery in this matter in Melbourne on 22 June 2007, and indicated that it would deliver written reasons for judgment at a later date. These are those written reasons for judgment.

Application

The Applicant Father’s application for a child support departure order was filed on 23 March 2007 (“the Application”).

Grounds for Departure and Order sought

The grounds for departure under s.117 of the Child Support (Assessment) Act, 1989 (Cth) are set out in the Application as follows:
That, in the special circumstances of the case, application in relation to the child of provisions of this Act relation to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of either parent or the child; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for 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.

Continue reading Kennedy & McDermott

Details

AGLC: Kennedy & McDermott [2007] FMCAfam 524
Case: [2007] FMCAfam 524
Decision Date: 26 July 2007

CaseChat Overview and Summary

In the matter of Kennedy & McDermott, the parties were involved in a child support dispute, which was heard by the Family Court of Australia. The primary focus of the case was an administrative assessment that had been made regarding the child support obligations of the respondent, Mr Kennedy. The applicant, Ms McDermott, sought a departure order that would modify the assessed amount of child support.

The legal issues before the court encompassed the interpretation and application of the Family Law Act, specifically in relation to the authority of the court to issue a departure order. The court was required to determine whether the administrative assessment was correct and whether there were any grounds for a departure order based on the evidence presented. Additionally, the court had to consider the extent to which the respondent had provided full and frank disclosure of his financial circumstances, which was relevant to the assessment process.

The court examined the evidence provided by both parties and assessed the financial information disclosed. It found that the respondent had not provided a full and frank disclosure of his financial circumstances, which was necessary for an accurate assessment. Consequently, the court determined that the administrative assessment was not reliable and issued a departure order, modifying the amount of child support payable. The court emphasised the importance of full and frank disclosure in child support assessments, noting that any deficiencies in disclosure could undermine the accuracy of the assessment and necessitate a departure order.

Orders