Yewen & Child Support Registrar & Anor - [2014] FCCA 2399

FEDERAL CIRCUIT COURT OF AUSTRALIA

YEWEN & CHILD SUPPORT REGISTRAR & ANOR

[2014] FCCA 2399

Catchwords:
CHILD SUPPORT – Application for leave to amend child support assessments for periods more than eighteen months prior to date of application – principles applicable – liable parent has failed to file tax returns for child support years between 2006 and 2012 until recently – child support assessed on basis of Registrar’s determination – Registrar has commencement enforcement proceedings in respect of arrears – judgement entered against applicant – tax returns filed following entry of judgement against applicant – current proceedings commencement following filing of tax returns – applicant contends that if departure application allowed child support arrears will be reduced –whether prima facie case exists to change assessments – hardship – reasons for delay – other relevant considerations – late filing of tax returns.

Legislation:

Family Law Act 1975, ss.44, 44(3)

Child Support (Registration & Collection) Act 1988, ss.30(1); 67; 68; 80, 88, 110B;

Child Support (Assessment) Act 1989, ss.4(2), 43(1); 58A; 58A(2)(c); 66(1); 98C; 98C(2); 98E; 98R; 98S; 111; 111(1); 112, 112(1); 112(4); 112(5); 116, 117(1), 117(2), 118, 122, 123, 123A; 123(2);124; 141
Child Support (Assessment) Regulations 1989, r.7B

In the Marriage of Gyselman (1992) 15 FamLR 219
Savery & Savery (1990) FLC 92-131
Bauer & Becker [2009] FMCAfam 480
Hacherl & Barrios [2010] FMCAfam 668
Jacenko & Jacenko, (1986) 11 Fam LR 341
Whitford & Whitford (1979) FLC 90-612
Canrell & Jennings [2009] FMCAfam 229
McColl & McColl [2013] FCCA 736
Child Support Registrar & Rawlings & Anor [2013] FCCA 370
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491

Applicant:

MR YEWEN

First Respondent:

CHILD SUPPORT REGISTRAR

Second Respondent:

MS HALLEY

File Number:

ADC 1982 of 2013

Judgment of:

Judge Brown

Hearing date:

1 October 2014

Date of Last Submission:

1 October 2014

Delivered at:

Adelaide

Delivered on:

24 October 2014

REPRESENTATION

Counsel for the Applicant:

Mr Howe

Solicitors for the Applicant:

Howe Jenkin

Counsel for the First Respondent:

Ms Shepherd

Solicitors for the First Respondent:

Australian Government Solicitor

Counsel for the Second Respondent:

In Person

ORDERS

Leave is granted under section 112 of the Child Support (Assessment) Act 1989 (the Act) for the first respondent to make a determination under section 98S of the Act for the period 1 July 2008 to 15 July 2012 inclusive, subject to the applicant satisfying the condition specified in order (2) hereof.
Within fourteen (14) days of the date of these orders the applicant pay the first respondent the sum of five thousand dollars ($5,000.00) in respect of the arrears of child support as currently assessed.
The applicant has leave to lodge a change of assessment application to the first respondent for the period 1 July 2008 to 15 July 2012 inclusive.
The applicant will lodge any such change of assessment application referred to in order 2 within fourteen (14)…

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: [2014] FCCA 2399
Decision Date: 24 October 2014

CaseChat Overview and Summary

In the matter of *Yewen & Child Support Registrar & Anor*, heard by Judge Brown, the applicant sought leave to amend child support assessments for periods extending more than eighteen months prior to the date of application. The dispute arose because the liable parent had failed to file tax returns for several child support years between 2006 and 2012, leading to child support being assessed on the basis of the Registrar's determination. The Registrar had commenced enforcement proceedings for arrears, and a judgment had been entered against the applicant. Following the entry of this judgment, the tax returns were filed, and the current proceedings were initiated. The applicant contended that allowing a departure from the assessments would reduce the child support arrears.

The court was required to determine whether a prima facie case existed to change the child support assessments for the periods in question, considering the principles applicable to applications for leave to amend assessments made more than eighteen months prior. This involved assessing factors such as hardship, the reasons for the delay in filing tax returns, and other relevant considerations.

Judge Brown granted leave under section 112 of the *Child Support (Assessment) Act 1989* for the Registrar to make a determination under section 98S for the period 1 July 2008 to 15 July 2012, subject to the applicant paying $5,000 in respect of current arrears within fourteen days. The applicant was granted leave to lodge a change of assessment application for the specified period within the same fourteen-day timeframe. If the applicant complied with these conditions, the Registrar undertook not to enforce the judgment of 5 August 2013 until a decision was made on the change of assessment application or any subsequent appeal. The applicant's amended application lodged on 11 June 2014 was otherwise dismissed, with each party to bear their own costs.

Orders

Orders of the court

1. Leave is granted under section 112 of the Child Support (Assessment) Act 1989 (the Act) for the first respondent to make a determination under section 98S of the Act for the period 1 July 2008 to 15 July 2012 inclusive, subject to the applicant satisfying the condition specified in order (2) hereof.

2. Within fourteen (14) days of the date of these orders the applicant pay the first respondent the sum of five thousand dollars ($5,000.00) in respect of the arrears of child support as currently assessed.

3. The applicant has leave to lodge a change of assessment application to the first respondent for the period 1 July 2008 to 15 July 2012 inclusive.

4. The applicant will lodge any such change of assessment application referred to in order 2 within fourteen (14) days of the date of these orders.

5. If the applicant complies with order 3 above, the first respondent undertakes not to enforce the orders made by the court on 5 August 2013 in the matter of CSR & Yewen ADC837/2014 until a decision is made on such a change of assessment application referred to in orders 2 and 3, or if that decision is appealed, until the outcome of such appeal but only if any such appeal is lodged on time.

6. The amended application lodged on 11 June 2014 by the applicant is otherwise dismissed.

7. The parties have liberty to apply.

8. Each party will bear their own 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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