N and N - [2001] FMCAfam 109

FEDERAL MAGISTRATES COURT OF AUSTRALIA

N & N

[2001] FMCA fam 109

CHILD SUPPORT – Lump sum payment – Husband’s earning capacity not exercised – Departure from administrative assessment – Child Support (Assessment) Act 1989 s 117, 123 and 124.

Applicant:

L N

Respondent:

G A N

File No:

ZE 278 of 2001

Delivered on:

23 August 2001

Delivered at:

Dandenong

Hearing Dates:

9 & 11 May 2001

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr Wood

Solicitors for the Applicant:

Ryan Carlisle Thomas

41 Robinson Street,
Dandenong 3175

Counsel for the Respondent:

Mr O’Loughlin

Solicitors for the Respondent:

Access Law
291 Sydney Road,
Brunswick 3056

ORDERS

THAT pursuant to s 117 of the Child Support (Assessment) Act 1989 there be departure from administrative assessment for the period
18 May 2001 to the 31 December 2003 for the children E N N born on 9 March 1986 and B A N born on 6 January 1984 and for the said period the Husband’s liability for child support be fixed at $8,500.00 per annum.
THAT the Husband pay the assessment for the said period by way of lump sum payment to the Wife of $22,605.00.
THAT the payment in paragraph (2) hereof is to count for 100% of the annual rate of child support payable by the Husband for the period
18 May 2001 to 31 May 2003 and thereafter the Husband’s liability be fixed in accordance with the administrative provisions of the Child Support (Assessment) Act 1989.
THAT the Husband pay to the Wife or the Child Support Agency arrears of child support owing as of 18 May 2001.
THAT the sums due pursuant to Orders (2) and (4) hereof, be deducted from the monies due by the Wife to the Husband pursuant to Orders made on 11 May 2001 in the Federal Magistrates Court of Australia.
THAT the Wife’s application for departure from child support filed on
4 May 2001 be otherwise dismissed and the matter be removed from the Pending Cases List.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DANDENONG

ZE 278 of 2001

L N

Applicant

And

G A N

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerned an application for parenting orders, settlement of property and a departure from administrative assessment of child support. The parenting issues were settled by the parties prior to the commencement of proceedings. The property aspects of the case settled during the hearing, leaving only the child support issues for determination. Orders by consent have been made in relation to the property settlement and parenting issues.

Applications

The wife relied upon an amended application filed on 4 May 2001. The relevant parts of that application are as follows:
(1)That the husband pay to the wife arrears of child support standing in the sum of $2,584.
(2)That pursuant to s 123 of the Child Support (Assessment) Act 1989, the husband pay to the wife the sum of $25,500 by way of capitalised child support for the two children of 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.

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Details

AGLC: N and N [2001] FMCAfam 109
Case: [2001] FMCAfam 109
Decision Date: 23 August 2001

CaseChat Overview and Summary

N and N was a case before the Federal Magistrates Court of Australia, where the Wife sought a departure from the administrative assessment of child support for the period between 18 May 2001 and 31 December 2003, concerning the children E N N and B A N. The Wife argued that the administrative assessment was insufficient and requested a fixed annual rate of child support of $8,500 for the specified period. The dispute required the court to determine whether the administrative assessment was appropriate and if a departure was warranted based on the circumstances presented.

The court needed to consider the statutory framework provided by the Child Support (Assessment) Act 1989 and assess the arguments presented by both parties regarding the adequacy of the administrative assessment. The court also had to decide on the appropriate rate of child support and the method of payment, including any lump sum payments and arrears. Furthermore, the court had to balance the financial obligations of both parties, considering the existing orders made in a previous case.

The court found that the administrative assessment was inadequate and granted the Wife's application for a departure from the assessment. It fixed the Husband’s liability for child support at $8,500 per annum for the period in question. The court ordered a lump sum payment of $22,605 to the Wife and directed the Husband to pay arrears of child support. The court also provided for the deduction of these payments from the monies due by the Wife to the Husband, as per previous orders. The court dismissed the Wife’s application for departure filed on 4 May 2001 and removed the matter from the Pending Cases List.

Orders

Orders of the court

THAT pursuant to s 117 of the Child Support (Assessment) Act 1989 there be departure from administrative assessment for the period

18 May 2001 to the 31 December 2003 for the children E N N born on 9 March 1986 and B A N born on 6 January 1984 and for the said period the Husband’s liability for child support be fixed at $8,500.00 per annum.

THAT the Husband pay the assessment for the said period by way of lump sum payment to the Wife of $22,605.00.

THAT the payment in paragraph (2) hereof is to count for 100% of the annual rate of child support payable by the Husband for the period

18 May 2001 to 31 May 2003 and thereafter the Husband’s liability be fixed in accordance with the administrative provisions of the Child Support (Assessment) Act 1989.

THAT the Husband pay to the Wife or the Child Support Agency arrears of child support owing as of 18 May 2001.

THAT the sums due pursuant to Orders (2) and (4) hereof, be deducted from the monies due by the Wife to the Husband pursuant to Orders made on 11 May 2001 in the Federal Magistrates Court of Australia.

THAT the Wife’s application for departure from child support filed on

4 May 2001 be otherwise dismissed and the matter be removed from the Pending Cases List.

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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