Leigh and Watson (No.2) - [2011] FMCAfam 1207

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LEIGH & WATSON (No.2)

[2011] FMCAfam 1207

CHILD SUPPORT – Application to set aside earlier order -departure order – special circumstances – just and equitable – otherwise proper – late payment penalties.

Child Support (Assessment) Act 1989 (Cth), ss.110, 111, 116, 117, 118
Child Support (Registration and Collection) Act 1988 (Cth), s.68
Federal Magistrates Court Rules 2001 (Cth), r.13.10

Bryant and Bryant (1996) FLC 92-690
Child Support Registrar & Leigh [2008] FMCAfam 1424
Gilmour and Gilmour (1995) FLC 92-591
Gyselman and Gyselman (1992) FLC 92-279
Leigh & Watson [2011] FMCAfam 238
Leigh & Watson [2011] FamCAFC 117
Liesert v Nutsch (1996) FLC 92-665
Savery and Savery (1990) FLC 92-131
Taylor & Taylor (1979) 143 CLR 1
Wilkes & Wilkes (1981) FLC 91-060

Applicant:

MR LEIGH

Respondent:

MS WATSON

File Number:

HBC 431 of 2007

Judgment of:

Roberts FM

Hearing date:

29 July 2011

Date of Last Submission:

29 July 2011

Delivered at:

Melbourne

Delivered on:

15 November 2011

REPRESENTATION

Counsel for the Applicant:

Appeared unrepresented

Solicitors for the Applicant:

Not applicable

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Not applicable

ORDERS

That Order No. 1 of the Orders of this Court made 10 February 2011 and bearing number HBC431/2007 is set aside.
That pursuant to section 117 of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment of child support payable by MR LEIGH (“the father”) for the children [X] born [in] 1998 and [Y] born [in] 2001 as follows:
(a)For the period from 24 July 2003 to 30 June 2004 the father’s child support income amount be set at $41,868; and
(b)For the period from 1 July 2004 to 30 June 2005 the father’s child support income amount be set at $30,572
That the father provide a copy of the Orders made today to the State Manager of the Child Support Agency in Hobart.
That all extant applications are otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Leigh & Watson (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT LAUNCESTON

HBC 431 of 2007

MR LEIGH

Applicant

And

MS WATSON

Respondent

REASONS FOR JUDGMENT

Brief background to these proceedings

On 10 February 2011 I made an order dismissing an application by

MR LEIGH (“the father”). At that time I noted the following:
·that when this matter was called on 10 February 2011, neither the applicant father nor the respondent MS WATSON (“the mother”) appeared;
·
that I was satisfied that both parties were given notice on

29 November 2010 of the listing of the matter for hearing on

10 February 2011; and
·that, in any event, I was satisfied pursuant to Rule 13.10 of the Federal Magistrates Court Rules 2001 that the father had no reasonable prospect of successfully prosecuting his claim.
That decision of mine (“my earlier decision”) is reported in anonymous form as Leigh & Watson,[1] so I…

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 Leigh and Watson (No.2)

Details

AGLC: Leigh and Watson (No.2) [2011] FMCAfam 1207
Case: [2011] FMCAfam 1207
Decision Date: 15 November 2011

CaseChat Overview and Summary

The matter of Leigh and Watson (No.2) was heard by the Family Court of Australia. The dispute between the parties centred on the assessment of child support payable by the father, MR LEIGH, for his two children, [X] born in 1998 and [Y] born in 2001. The court was tasked with determining the appropriate income amount for the father over two specified periods, from 24 July 2003 to 30 June 2004, and from 1 July 2004 to 30 June 2005, under section 117 of the Child Support (Assessment) Act 1989.

The primary legal issue before the court was whether there should be a departure from the administrative assessment of the father's child support income. The court had to weigh the evidence provided by both parties and decide on the correct income amount for the father during the relevant periods. This decision required an understanding of the statutory provisions and the circumstances that warranted a departure from the administrative assessment.

The court found that there were indeed grounds for departing from the administrative assessment. It set the father's child support income amount at $41,868 for the period from 24 July 2003 to 30 June 2004 and at $30,572 for the period from 1 July 2004 to 30 June 2005. The court concluded that these amounts more accurately reflected the father's income and, therefore, were appropriate for determining the child support payable. The court also set aside a previous order and dismissed all other extant applications.

In summary, the court ordered that the administrative assessment of child support payable by MR LEIGH be replaced with the specified income amounts for the given periods. Additionally, the father was directed to provide a copy of the court's orders to the State Manager of the Child Support Agency in Hobart.

Orders

Orders of the court

That Order No. 1 of the Orders of this Court made 10 February 2011 and bearing number HBC431/2007 is set aside.

That pursuant to section 117 of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment of child support payable by MR LEIGH (“the father”) for the children [X] born [in] 1998 and [Y] born [in] 2001 as follows:

(a) For the period from 24 July 2003 to 30 June 2004 the father’s child support income amount be set at $41,868; and

(b) For the period from 1 July 2004 to 30 June 2005 the father’s child support income amount be set at $30,572

That the father provide a copy of the Orders made today to the State Manager of the Child Support Agency in Hobart.

That all extant applications are 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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