R and R - [2003] FMCAfam 276

FEDERAL MAGISTRATES COURT OF AUSTRALIA

R & R

[2003] FMCAfam 276

CHILD SUPPORT – Income only capacity – Husband found to have income earning capacity and financial resources despite being recipient of a disability support pension – application for departure – whether lump sum should be ordered.

Child Support (Assessment) Act 1989, ss.114, 117, 124, 128

Dwyer v McGuire (1993) FLC 92-420
Gyselman & Gyselman (1992) FLC 92-279
Prpic v Prpic (1995) FLC 92-574

Applicant:

M R

Respondent:

M R

File No:

CAM 2368 of 2002

Delivered on:

18 July 2003

Delivered at:

Canberra

Hearing Date:

4 October 2002

Date of last submission:

30 October 2002

Judgment of:

McInnis FM

REPRESENTATION

Applicant:

In person

Counsel for the Respondent:

Ms M Burgess

Solicitors for the Respondent:

Legal Aid Office ACT

ORDERS

The Application filed 28 March 2002 be dismissed.
That the Child Support Assessment in relation to J R born 4 January 1990 and T R born 2 October 1992 be departed from such that the father shall pay the sum of $39,000 by way of lump sum child support to the mother being $13,000 per annum for the period 6 September 2000 to 6 September 2003 in lieu of assessments made by the Child Support Agency for that period..
On and from 7 September 2003 the amount of child maintenance payable shall be administratively determined by the Child Support Agency.
That the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in orders 2 and 3 hereof.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
CANBERRA

CAM 2368 of 2002

M R

Applicant

And

M R

Respondent

REASONS FOR JUDGMENT

Background

In this application M R (the Applicant) seeks a departure order pursuant to Division 4 of the Child Support (Assessment) Act 1989 (the CSA Act) from a decision made by the Child Support Agency (the CSA) on 18 December 2001. The application is opposed by M R (the Respondent).
Initially there was some confusion concerning the application sought to be relied upon by the Applicant and ultimately it was agreed that a copy of the application would be provided to the Court and relied upon by the Applicant and dated 28 March 2002.
On 29 August 2002 the Respondent lodged what has been described as a counter application for a departure order pursuant to s.114 of the CSA Act and for a lump sum payment pursuant to s.124 of that Act. The decision by the CSA made on 18 December 2001 which is the subject of the departure application by the Applicant involved a decision to increase the rate of child support payable by the Applicant for the financial years 2001/2002 and 2002/2003 from the minimum rate payable to $8,000 for the period 12 December 2001 to 31 March 2003. According to that decision it was to have the effect of increasing the amount of child support payable and results in a periodic liability of $666.67 per month. In making its decision the CSA…

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: R and R [2003] FMCAfam 276
Case: [2003] FMCAfam 276
Decision Date: 18 July 2003

CaseChat Overview and Summary

In the matter of R and R, the applicants were parents involved in a dispute over child support. The proceedings took place in the Federal Court of Australia. The applicants sought an order that the Child Support Agency's assessment of child support be departed from, and for the father to pay a lump sum of child support to the mother. The legal issues before the court were whether the child support assessment should be departed from, and if so, what the appropriate amount of the departure should be.

The court considered the evidence presented by both parties and the relevant statutory framework, including the Child Support (Assessment) Act 1989. The court found that the child support assessment should be departed from, as it did not take into account certain relevant factors, such as the father's income and the mother's need for financial support. The court determined that the appropriate amount of the departure should be a lump sum payment of $39,000 to the mother, to be paid over three years. The court also ordered that, after the three-year period, the amount of child maintenance payable should be administratively determined by the Child Support Agency.

The court's final orders were that the application be dismissed, that the child support assessment be departed from in certain respects, and that the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in the orders of the court. The court emphasised the importance of ensuring that child support assessments take into account all relevant factors and provide adequate financial support for children and their parents.

Orders

Orders of the court

The Application filed 28 March 2002 be dismissed.

That the Child Support Assessment in relation to J R born 4 January 1990 and T R born 2 October 1992 be departed from such that the father shall pay the sum of $39,000 by way of lump sum child support to the mother being $13,000 per annum for the period 6 September 2000 to 6 September 2003 in lieu of assessments made by the Child Support Agency for that period..

On and from 7 September 2003 the amount of child maintenance payable shall be administratively determined by the Child Support Agency.

That the Registrar of the Child Support Agency give effect to the departures from the administrative assessment in orders 2 and 3 hereof.

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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