Warnock and Armfield - [2010] FMCAfam 498

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WARNOCK & ARMFIELD

[2010] FMCAfam 498

CHILD SUPPORT

Child Support Assessment Act 1989, ss.111, 112 (1), 112(4), 117(1), 117(2), 117(2A)

Bauer and Becker (2009) FLC 98 042
Whitford and Whitford (1979) FLC 90-612
Bagala & Bagala (2009) FMCA Fam 953

Applicant:

MS WARNOCK

Respondent:

MR ARMFIELD

File Number:

HBC 674 of 2009

Judgment of:

Baker FM

Hearing dates:

24 & 26 February 2010

Date of Last Submission:

26 February 2010

Delivered at:

Hobart

Delivered on:

11 May 2010

REPRESENTATION

Counsel for the Applicant:

Mr Smith

Counsel for the Respondent:

In Person

ORDERS

The mother be granted leave to proceed, within 21 days, with an application for an amendment of administrative assessment for the period 19 September 2006 until 27 June 2007 and the determination be conducted by the Registrar pursuant to Part 6A of the Child Support (Assessment) Act 1989.
The mother’s application for costs made on 24 February 2010 be dismissed.
The mother’s application for costs made on 11 May 2010 be adjourned to the duty list on 21 June 2010 at 10.00am.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

HBC 674 of 2009

MS WARNOCK

Applicant

And

MR ARMFIELD

Respondent

REASONS FOR JUDGMENT

Ex-tempore

This is a child support and parenting dispute between the parties, who are parents of the child, [X], born [in] 1997. Most of the parenting issues settled. I heard evidence about those issues which did not settle and I delivered my reasons, ex-tempore, on 24 February 2010.
The mother relied on her Amended Application, filed 29 October 2009, and her affidavits filed 13 July 2009, 4 September 2009, 29 October 2009, 22 February 2010 and her Financial Statement filed 24 October 2009. She also relied on her affidavit filed 22 February 2010 and the affidavit of Ms W, filed 17 February 2010, in respect of a costs application.
The father relied on his Initiating Application, filed 30 July 2009, his affidavits filed 13 July 2009, 4 September 2009, 16 September 2009, 15 February 2010, 23 February 2010, his Financial Statement filed 29 September 2009 and his Response filed 3 November 2009 and Amended Response filed 23 February 2010.

Background

There has been a long history of disputes between the parties, both in respect of [X]’s living arrangements and in respect of child support. [X] lived with the mother until September 2006. Since then she has lived with the father. There have been objections, reviews and a court hearing. There have been two determinations by the Social Security Appeals Tribunal (“the SSAT”).
The mother’s Application was filed in the local court in [Y], New South Wales on 13 July 2009. The father sought a transfer of the matter to the Federal Magistrates Court, because he filed a parenting application in the Hobart Registry on 30 July 2009. The local court in [Y]…

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

Case: [2010] FMCAfam 498
Decision Date: 11 May 2010

CaseChat Overview and Summary

Warnock and Armfield was a case heard by the Federal Circuit and Family Court of Australia. The mother, Warnock, sought leave to amend an administrative assessment of child support payments made by the Department of Human Services. The father, Armfield, opposed the application. The matter was brought before the court to determine whether the mother should be granted leave to amend the assessment and, if so, to determine the appropriate time frame and procedure for the amended assessment.

The court was required to consider whether the mother had established sufficient grounds to warrant an amendment to the administrative assessment of child support payments. The legal issues included the criteria for amending an administrative assessment under the Child Support (Assessment) Act 1989, and whether the mother had provided sufficient evidence to support her application. The court also had to consider the father’s opposition to the application and whether the mother’s application for costs should be dismissed or adjourned.

The court found that the mother had provided sufficient evidence to warrant an amendment to the administrative assessment of child support payments. The court held that the mother should be granted leave to proceed with an application for an amendment of administrative assessment for the period 19 September 2006 until 27 June 2007. The court further held that the determination of the amended assessment should be conducted by the Registrar pursuant to Part 6A of the Child Support (Assessment) Act 1989. The court dismissed the mother’s application for costs made on 24 February 2010 and adjourned the mother’s application for costs made on 11 May 2010 to the duty list on 21 June 2010 at 10.00am.

Orders

Orders of the court

The mother be granted leave to proceed, within 21 days, with an application for an amendment of administrative assessment for the period 19 September 2006 until 27 June 2007 and the determination be conducted by the Registrar pursuant to Part 6A of the Child Support (Assessment) Act 1989.

The mother’s application for costs made on 24 February 2010 be dismissed.

The mother’s application for costs made on 11 May 2010 be adjourned to the duty list on 21 June 2010 at 10.00am.

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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