McColl & McColl

[2013] FCCA 736

FEDERAL CIRCUIT COURT OF AUSTRALIA

McCOLL & McCOLL [2013] FCCA 736

Catchwords:
CHILD SUPPORT – Application for leave to change child support assessments for periods more than 18 months prior to application – principles applicable to the determination of such an application – late filing of tax returns – amended retrospective assessments issuing – amended assessments covering period more than 18 months before they issued – whether prima facie case exists to change assessments – no delay in seeking to change assessments – hardship to father of refusing leave and to mother of granting leave – consideration of late filing of tax returns as a relevant matter.

Legislation:
Child Support (Assessment) Act 1989, ss.98C, 98S(3B), 111, 112, 117, 118(2B)

Family Law Act 1975, s.44(3)

Cantrell & Jennings [2009] FMCAfam 229
Bauer & Becker [2009] FMCAfam 480, (2009) FLC ¶98-042
Jacenko & Jacenko (1986) 11 Fam LR 341, (1986) FLC ¶91-776
Gyselman & Gyselman (1991) 15 Fam LR 219, (1991) FLC ¶92-279
Child Support Registrar & Rawlings & Another [2013] FCCA 370
Hacherl & Berrios [2010] FMCAfam 668

Applicant: MR MCCOLL

Respondent: MS MCCOLL

File Number: PAC 40 of 2013

Judgment of: Judge Halligan

Hearing date: 4 July 2013

Date of Last Submission: 4 July 2013

Delivered at: Parramatta

Delivered on: 4 July 2013

REPRESENTATION

Solicitors for the Applicant: Mr McColl in Person

Solicitors for the Respondent: Legal Aid Commission

ORDERS

1. The father's application filed on 8 January 2013 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym McColl & McColl is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PARRAMATTA

PAC 40 of 2013

MR MCCOLL

Applicant

And

MS MCCOLL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father, who is unrepresented, seeks an order to allow the Child Support Registrar (the Registrar) to make a departure determination reducing the amount of child support he is liable to pay for child support periods more than 18 months ago. He also seeks to stay the collection from him of amounts for child support arrears by the Registrar, pending the determination of these proceedings. The latter application became moot as the court is now determining the former application. Power to make the former order is found in s.112 of the Child Support (Assessment) Act 1989 (the Assessment Act).

2. The respondent mother opposes the orders the father seeks.

Background

1. Neither party sought to cross-examine the other, and hence I accept the evidence of each of the parties.

2. The father is the payer under child support assessments for the parties’ three children, all of whom are now over 18.  The child support assessments ceased on 16 November 2012, when the two youngest children, twins who turned 18 earlier in the year, completed their secondary education.

3. The father filed his tax returns for the financial years 2005/2006 to 2011/2012 on 16 November 2012. They disclosed taxable income higher than the amounts previously used by the Registrar to calculate the father's…