Richardson & Older (No. 2) - [2008] FamCA 512

FAMILY COURT OF AUSTRALIA

RICHARDSON & OLDER (NO. 2)

[2008] FamCA 512

FAMILY LAW – CHILD SUPPORT – Application for departure – Appeal from a decision made in the Local Court where the father’s application for orders departing from a child support assessment was refused – Section 117(2) of the Child Support (Assessment) Act 1989 (Cth) – Orders made for the departure from the child support assessment and recalculation of child support

FAMILY LAW – COSTS – Federal Proceedings (Costs) Act 1981 (Cth)

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

Gyselman and Gyselman (1992) FLC 92-279
Johnson and Johnson (1999) FLC 98-004

APPLICANT:

Mr Richardson

RESPONDENT:

Ms Older

FILE NUMBER:

NCC

2211

2001

DATE DELIVERED:

30 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Fowler

HEARING DATE:

11 - 12 June 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Drake

SOLICITOR FOR THE RESPONDENT:

Mr Nash

Orders

That the assessment of child support for the periods 1 July 2003 to

30 September 2004, and 1 October 2004 to 31 December 2005 and for the period 1 January 2006 to 31 March 2007 be departed from and that child support for each of those periods be recalculated on the basis that the taxable income of the father is as set out below for each of the periods specified below, namely:
(a)       for the financial year ending 30 June 2003 the sum of $21,884.00
(b)       for the financial year ending 30 June 2004 the sum of $27,218.00
(c)       for the financial year ending 30 June 2005 the sum of $17,772.16
(d)       for the financial year ending 30 June 2006 the sum of $20,707.00
(e)       for the financial year ending 30 June 2007 the sum of $9,010.00.
There be no order as to costs.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2211 of 2001

MR RICHARDSON

Applicant

And

MS OLDER

Respondent

REASONS FOR JUDGMENT

Introduction

The proceedings before me are an appeal from a decision of His Worship Railton SM made in the Local Court of New South Wales in which he refused an application by the father for orders departing from Child Support Assessment made on 17 January 2006.
The hearing before me was commenced following leave which I granted in that regard by order on 15 January 2008.
The Child Support Assessment appealed from was that assessment made by a child support review officer on an application by the mother for a departure from an administrative assessment for the years 2004, 2005 and 2006 and for the period ending 29 March 2007.
The proceedings before me proceed as a hearing de novo of the father’s application for departure brought under the provisions of section 117 of the Child Support (Assessment) Act 1989 (Cth) and in particular s 117(2)(c)(ia) and…

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 Richardson & Older (No. 2)

Details

AGLC: Richardson & Older (No. 2) [2008] FamCA 512
Case: [2008] FamCA 512
Decision Date: 30 June 2008

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Local Court where the father's application to depart from a child support assessment was refused. The appeal was heard by Justice Fowler.

The primary legal issue before the court was whether to depart from the existing child support assessment pursuant to section 117(2) of the *Child Support (Assessment) Act 1989* (Cth). This involved determining if the circumstances warranted a recalculation of child support based on the father's taxable income for specific past periods.

Justice Fowler reasoned that a departure from the assessment was justified. The court applied the principles of section 117(2) of the Act, considering the father's taxable income for the financial years ending 30 June 2003 through to 30 June 2007. The court found that the father's actual taxable income for these periods differed significantly from what was used in the original assessment, necessitating a recalculation.

The court ordered a departure from the child support assessment for the periods 1 July 2003 to 30 September 2004, 1 October 2004 to 31 December 2005, and 1 January 2006 to 31 March 2007, with child support to be recalculated based on the father's specified taxable incomes for the relevant financial years. There were no orders made as to costs.

Orders

Orders of the court

That the assessment of child support for the periods 1 July 2003 to

30 September 2004, and 1 October 2004 to 31 December 2005 and for the period 1 January 2006 to 31 March 2007 be departed from and that child support for each of those periods be recalculated on the basis that the taxable income of the father is as set out below for each of the periods specified below, namely:

(a) for the financial year ending 30 June 2003 the sum of $21,884.00

(b) for the financial year ending 30 June 2004 the sum of $27,218.00

(d) for the financial year ending 30 June 2006 the sum of $20,707.00

(e) for the financial year ending 30 June 2007 the sum of $9,010.00.

There be no order as to costs.

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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