NILLSON & DALABA - [2010] FMCAfam 368

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NILLSON & DALABA

[2010] FMCAfam 368

CHILD SUPPORT – Father’s application to discharge arrears of child support from 2005 to March 2008 and January 2009 to date – father asserts that the mother’s conduct and actions supported his belief that he was not the father of the child.

Child Support (Assessment) Act 1989, ss.112(1), 117, 118
Family Law Act 1975 (Cth), ss.66J, 66K, 66C, 66D, 66B, 66S

Aspen & Selby [2007] FAMCA 872
Hewart & Wignall [2009] FAMCA 1132
In the Marriage of Gyselman (1991) 15 Fam LR 219
Mathieson & Hamilton [2006] FMCAfam 238
Wreford & Caley [2010] FamCAFC 21

Applicant:

MR NILLSON

Respondent:

MS DALABA

File Number:

PAC 2637 of 2008

Judgment of:

Henderson FM

Hearing dates:

5, 18 & 19 February 2010

Date of Last Submission:

19 February 2010

Delivered at:

Parramatta

Delivered on:

23 April 2010

REPRESENTATION

Counsel for the Applicant:

Ms Friedlander

Solicitors for the Applicant:

No solicitor on record

Advocate for the Respondent:

Ms Day

Solicitors for the Respondent:

Turner Freeman Lawyers

ORDERS

Pursuant to section 118 of the Child Support (Assessment) Act 1989 the annual rate of child support for the child, [X] born [in] 1993, for the period 13 September 2005 to 28 March 2008 be varied to nil.
The father to pay the sum of $4,985.76 to the mother by way of a discharge of any arrears of child support payable by him for the period 29 March 2008 to 31 December 2008 within 6 months of the date of these orders.
Pursuant to section 118 of the Child Support (Assessment) Act 1989 the annual rate of child support for the child, [X] born [in] 1993, for the period 1 January 2009 to date be varied to nil.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAC 2637 of 2008

MR NILLSON

Applicant

And

MS DALABA

Respondent

REASONS FOR JUDGMENT

The father seeks an order for the discharge of arrears of child support for the child, [X] born [in] 1993, for the period 13 September 2005 to 28 March 2008 and for the period 1 January 2009 to date.
As at August 2008 the Child Support Agency (“the Agency”) assessed the father had arrears of child support of $32,535.77 with late payments and penalties. Those arrears accrued pursuant to assessments issued in the period 13 September 2005 to 2 August 2008.
The father has paid child support totalling $4,231.42. Currently child support has been assessed to be paid in 2009 with arrears late payments and penalties increasing the arrears to some $41,000.
[X] ceased attending school in November 2008 and was working [in the hospitality industry] in 2008, 2009 and continuing albeit part time.
The father’s application is that the assessments issued by the Agency from 13 September 2005 up to 28 March 2008 and those covering the period January…

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 NILLSON & DALABA

Details

AGLC: NILLSON & DALABA [2010] FMCAfam 368
Case: [2010] FMCAfam 368
Decision Date: 23 April 2010

CaseChat Overview and Summary

Nilson and Dalaba present a case involving the calculation and payment of child support for the child [X] born in 1993. The dispute was brought before the court, which was tasked with determining the appropriate amount of child support and resolving any outstanding arrears between the father and the mother. The court had to address two primary legal issues: the variation of the annual rate of child support for specific periods and the discharge of any arrears that the father owed to the mother.

The court considered the relevant statutory provisions under the Child Support (Assessment) Act 1989, specifically section 118, which allows for the variation of child support orders. The court examined the evidence and submissions from both parties to determine the correct child support rate and any outstanding arrears for the specified periods. In reaching its decision, the court took into account the child's best interests and the financial circumstances of both parents.

After considering the evidence and arguments presented, the court found that the annual rate of child support for the child should be varied to nil for the periods 13 September 2005 to 28 March 2008 and 1 January 2009 to date. Additionally, the court ordered the father to pay the sum of $4,985.76 to the mother as a discharge of any arrears of child support payable for the period 29 March 2008 to 31 December 2008. This decision was made in accordance with the statutory provisions and the best interests of the child.

Orders

Orders of the court

Pursuant to section 118 of the Child Support (Assessment) Act 1989 the annual rate of child support for the child, [X] born [in] 1993, for the period 13 September 2005 to 28 March 2008 be varied to nil.

The father to pay the sum of $4,985.76 to the mother by way of a discharge of any arrears of child support payable by him for the period 29 March 2008 to 31 December 2008 within 6 months of the date of these orders.

Pursuant to section 118 of the Child Support (Assessment) Act 1989 the annual rate of child support for the child, [X] born [in] 1993, for the period 1 January 2009 to date be varied to nil.

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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