YATHOPOULOS & KOMINE - [2015] FCCA 687

FEDERAL CIRCUIT COURT OF AUSTRALIA

YATHOPOULOS & KOMINE

[2015] FCCA 687

Catchwords:
CHILD SUPPORT – Whether Departure Order should be varied – whether arrears in child support payment should be discharged.

FAMILY LAW – Whether father contravened parenting orders without reasonable excuse – whether father should be fined/mother compensated.

Legislation:

Family Law Act 1975, Part VII Division 13A, ss.70NAD(b), 65N, 70NAC, 70NAE, 70NAE(2), 65DAC, subdivisions E and F of Part VII, Div.13A, 70NEB, 70NAF, 70NEC, 70NFB(2), 70NEB(1)

Child Support (Assessment) Act 1989, ss.117, 117(1)(b), 117(2), 117(4), 117(2)(c)(ia)(ib), 117(5), 117(5)(b), 141
Evidence Act 1995 (Cth), s.140

Gyselman and Gyselman [1991] FamCA 93
RJL v WJF (2004) FMCAfam 627
Cottle & Cottle [2005] FMCAfam 185
DJM & JLM [1998] FamCA 97
Spinks and Spinks [2001] FamCA 197
Skinner and Cluny [2013] FamCA 301
Mathieson & Hamilton [2006] FMCAfam 238
Yathopoulos & Komine & Anor [2013] FCCA 267

Applicant:

MR YATHOPOULOS

Respondent:

MS KOMINE

File Number:

MLC 13656 of 2007

Judgment of:

Judge Jones

Hearing date:

17 September 2014

Date of Last Submission:

12 November 2014

Delivered at:

Melbourne

Delivered on:

26 March 2015

REPRESENTATION

Counsel for the Applicant:

Mr Tatti

Solicitors for the Applicant:

WMB Lawyers

Counsel for the Respondent:

Mr Henenberg

Solicitors for the Respondent:

Barry B Moshel Solicitors

THE COURT DECLARES THAT

The applicant father is guilty of counts 1, 2 and 4 of the contravention application filed on 17 July 2013 without reasonable excuse being proven.

THE COURT ORDERS THAT

All arrears of child support payable by the Applicant, Mr Yathopoulos to the Respondent Ms Komine for the child, X born (omitted) 2001 pursuant to the Order made by the Federal Magistrates Court on 2 November 2009 accrued up to the date of this new order be discharged in full.
The Order made on 2 November 2009 be discharged.
Otherwise, all extant applications be dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 13656 of 2007

MR YATHOPOULOS

Applicant

And

MS KOMINE

Respondent

REASONS FOR JUDGMENT

Introduction and Background

This decision concerns applications made by Mr Yathopoulos (“the father”) and Ms Komine (“the mother”) as follows:
a)orders are sought by both parties pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the CSA Act”);
b)the father seeks an order from the Court pursuant to the Family Law Act 1975 (Cth) (“the Act”) that he be permitted to obtain a passport for a daughter of their relationship, Y without the consent of the mother (“the passport order”);
c)the mother has filed a contravention application and seeks a fine or an order of compensation pursuant to Division 13A of the Act in respect of the alleged contraventions.
The mother has informed the Court, in her written submissions that, as Y is shortly to turn 18 years of age, she does not oppose the passport order sought by the father. As Y is…

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: YATHOPOULOS & KOMINE [2015] FCCA 687
Case: [2015] FCCA 687
Decision Date: 26 March 2015

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Jones considered applications by Mr Yathopoulos (the applicant) and Ms Komine (the respondent) concerning child support and parenting orders. Mr Yathopoulos sought to vary a departure order relating to child support and discharge arrears, while Ms Komine sought orders for contravention of parenting orders, including a fine and compensation.

The court was required to determine whether the arrears of child support payable by Mr Yathopoulos to Ms Komine should be discharged. Additionally, the court had to consider whether Mr Yathopoulos had contravened parenting orders without reasonable excuse and, if so, whether a fine or compensation was appropriate.

Judge Jones ordered that all child support arrears payable by Mr Yathopoulos to Ms Komine for their child be discharged in full. The court further ordered that the original child support order made on 2 November 2009 be discharged. All other outstanding applications made by the parties were dismissed.

Orders

Orders of the court

All arrears of child support payable by the Applicant, Mr Yathopoulos to the Respondent Ms Komine for the child, X born (omitted) 2001 pursuant to the Order made by the Federal Magistrates Court on 2 November 2009 accrued up to the date of this new order be discharged in full.

The Order made on 2 November 2009 be discharged.

Otherwise, all extant applications be dismissed.

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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