M and M - [2002] FMCAfam 321

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & M

[2002] FMCAfam 321

FAMILY LAW – Child support – appeal from decision of child support registrar – departure application.

Child Support (Assessment) Act 1989, ss.98X, 110, 111, 115
Federal Magistrates Rules, rule 15.29

Reid v Reid (1999) FLC 98-007
Carey and Carey (1994) FLC 92-489
Grejsen and Grejsen (1994) 92-472
DJM and JLM (1998) FLC 92-816

Appellant:

D P M

Respondent:

J L M

File No:

PAM103 of 2002

Delivered on:

27 September 2002

Delivered at:

Parramatta

Hearing Date:

13 May 2002

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Appellant:

In person

Counsel for the Respondent:

Mr Schroder

Solicitors for the Respondent:

Ms Kyle
Smythe and Mallam
Solicitors

ORDERS

The Appeal is allowed in respect of the decision of the Senior Case Officer on 24 February 2001 not to reduce the assessment of child support for the period 1 November 1999 to 19 January 2001.
The Child Support Registrar is to assess the Appellant’s liability for child support for the period 1 November 1999 to 30 November 2000 on the basis of the Appellant’s earning capacity of $60,000.00.
All late payment penalties imposed in respect of the Appellant’s liability for the above period are waived.
No late payment penalty in respect of the assessment in Order 2 above until the expiration of one month from the date of issue of the said assessment.
In all other respects the Appeal is dismissed.
The application to entertain an application for an order for departure from an administrative assessment of child support is refused.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM103 of 2002

D P M

Applicant

And

J L M

Respondent

REASONS FOR JUDGMENT

This is an appeal against what the Appellant describes as “all incorrect assessments made since 1 July 1999” made by the Child Support Registrar. From the material provided, it is apparent that the Appellant does not dispute the correctness of an assessment made on 9^th May 1999, to take effect from 1^st July 1999, but rather against two later re-assessments. The first of these is dated 2^nd October 1999 and took effect from 1^st November of that year. The second re-assessment is dated 2^nd November 2000, and took effect from 1^st December of that year.
In his Notice of Appeal, the Appellant seeks that the assessments be set aside, “thus reverting to the correct assessments”. In his affidavit affirmed on 18^th February 2002, the Appellant makes a departure application, seeking the following orders:
a)that the arrears of $10,635.58 created by calculating the liable parent’s child support amount upon the superannuation payment be removed, and
b)that the annual child support assessment amount set during the review process of $6,284.00 be disregarded, and that
c)provision by way of periodic payment in the sum of $250.00 per month be the amount of child support.
The Appellant has complied with the requirement that he should object under section 98X of the Act and…

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: M and M [2002] FMCAfam 321
Case: [2002] FMCAfam 321
Decision Date: 27 September 2002

CaseChat Overview and Summary

In the case of M and M, the appellant, who was a party to a child support assessment, sought to appeal the decision of the Senior Case Officer not to reduce the child support assessment for a specific period. The matter was heard and determined in the Family Court of Australia. The appellant contested the child support assessment for the period from 1 November 1999 to 19 January 2001, arguing that the assessment should be based on an earning capacity of $60,000.00 rather than the assessed figure. Additionally, the appellant sought to have all late payment penalties imposed for that period waived and for a departure from the administrative assessment to be considered.

The primary legal issues before the court were whether the Senior Case Officer erred in not reducing the child support assessment and whether the appellant's earning capacity should be recognised for the purposes of the assessment. Furthermore, the court had to consider whether the imposition of late payment penalties was justified and whether the administrative assessment should be departed from.

The court found that the Senior Case Officer had indeed erred in not considering the appellant's earning capacity of $60,000.00 for the specified period. It was determined that the assessment should reflect this earning capacity, leading to a reduction in the child support liability. Consequently, the appeal was allowed in respect of the decision not to reduce the assessment. The court also decided to waive all late payment penalties imposed for the relevant period. However, the appeal was dismissed in all other respects, and the application for an order to depart from the administrative assessment was refused.

In summary, the appeal was partially successful. The child support assessment for the period 1 November 1999 to 30 November 2000 was to be reassessed based on an earning capacity of $60,000.00, with all late payment penalties for that period waived. The appellant was also granted a one-month period without late payment penalties for the reassessment. The refusal to depart from the administrative assessment and dismissal of other appeal aspects were upheld.

Orders

Orders of the court

The Appeal is allowed in respect of the decision of the Senior Case Officer on 24 February 2001 not to reduce the assessment of child support for the period 1 November 1999 to 19 January 2001.

The Child Support Registrar is to assess the Appellant’s liability for child support for the period 1 November 1999 to 30 November 2000 on the basis of the Appellant’s earning capacity of $60,000.00.

All late payment penalties imposed in respect of the Appellant’s liability for the above period are waived.

No late payment penalty in respect of the assessment in Order 2 above until the expiration of one month from the date of issue of the said assessment.

In all other respects the Appeal is dismissed.

The application to entertain an application for an order for departure from an administrative assessment of child support is refused.

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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