NAHOS & BELL - [2018] FamCAFC 131

FAMILY COURT OF AUSTRALIA

NAHOS & BELL

[2018] FamCAFC 131

FAMILY LAW – APPEAL – CHILD SUPPORT – LEAVE TO APPEAL – Where section 123A(6) of the Child Support (Assessment) Act 1989 (Cth) did not apply to prevent the trial judge from making findings as to the father’s income – Where the father failed to provide full and frank disclosure and his evidence was of no assistance in enabling the court to make accurate findings as to his income, property, and financial resources – Where the trial judge took into account the evidence that was before the court and provided clear reasons for her findings as to the father’s income – Where the trial judge did not err in failing to take into account an affidavit filed by the father but not relied upon – Where the trial judge provided adequate reasons for her findings as to the appropriate level of child support – Where the trial judge did not err in her findings as to any hardship the father might suffer – Application dismissed.

FAMILY LAW – COSTS – Where the respondent sought costs in the event that the application for leave to appeal was unsuccessful – Where the applicant opposed the making of such an order on the basis of his financial circumstances – Where on the evidence before the trial judge the applicant is in a position to pay an order for costs – Where the applicant has been wholly unsuccessful and the respondent has incurred costs in opposing the application – Costs ordered as sought by the respondent.

Child Support (Assessment) Act 1989 (Cth) ss 102A(1)(a), 117(4)(ad), 117(4)(d), 117(4)(g)(ii)(A), 117(7)(a), 117(7B), 123A(6)
Family Law Act 1975 (Cth) s 117(2A)(e)

Bass & Bass and Anor [2016] FamCAFC 64
Bennett & Bennett (1991) FLC 92-191

APPLICANT:

Mr Nahos

RESPONDENT:

Ms Bell

FILE NUMBER:

MLC

10071

2012

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

23 July 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

27 March 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 October 2017

LOWER COURT MNC:

[2017] FCCA 2408

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Dellidis

SOLICITOR FOR THE RESPONDENT:

Farrar Dunn Gesini

Orders

The application for leave to appeal be dismissed.
The applicant father pay the respondent mother’s costs of and incidental to the application fixed in the sum of $3,806.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Nahos & Bell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family…

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 NAHOS & BELL

Details

AGLC: NAHOS & BELL [2018] FamCAFC 131
Case: [2018] FamCAFC 131
Decision Date: 23 July 2018

CaseChat Overview and Summary

In the matter of NAHOS & BELL, the father, NAHOS, appealed against the trial judge's determination of child support payments. The appeal centered on the trial judge's findings regarding the father's income, property, and financial resources, as well as the level of child support deemed appropriate. The mother, BELL, opposed the leave to appeal on the basis of the father's financial circumstances, arguing that the father was in a position to pay an order for costs.

The primary legal issue before the court was whether the trial judge erred in making findings regarding the father's income, property, and financial resources, given the father's failure to provide full and frank disclosure. Additionally, the court considered whether the trial judge correctly assessed the level of child support and whether she erred in not considering an affidavit filed by the father but not relied upon. The court also examined whether the trial judge erred in her findings concerning any hardship the father might suffer.

The court found that the trial judge did not err in her assessment of the father's income, property, and financial resources. The father's lack of full and frank disclosure did not prevent the trial judge from making informed findings based on the evidence before the court. The court upheld the trial judge's reasons for her findings as to the father's income and the appropriate level of child support, noting that the judge provided clear and adequate reasons. The court further held that the trial judge did not err in not considering the unrelied-upon affidavit. Regarding the father's potential hardship, the court found no error in the trial judge's findings.

The court dismissed the application for leave to appeal and ordered the father to pay the mother's costs of and incidental to the application in the sum of $3,806. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

The application for leave to appeal be dismissed.

The applicant father pay the respondent mother’s costs of and incidental to the application fixed in the sum of $3,806.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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