ACORA & SADLOWS - [2020] FCCA 1580

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACORA & SADLOWS

[2020] FCCA 1580

Catchwords:
CHILD SUPPORT – Stay application – where a review by the Tribunal was requested by the respondent and departure order granted – where two children are aged 10 and 14 – where orders have been made multiple times from 2007 to 2020 – where earlier interim application for stay was refused – where contravention applications were made and withdrawn – where sole parental responsibility now sought by applicant – where such request represents a reversal of final consent orders – where the applicant contested the Tribunal’s decision to proceed in his absence – where the applicant sought to appeal the Tribunal’s decision but later discontinued the appeal – where the level of child support was increased – where the schooling of one child was a matter of disagreement – where the status of financial decisions for child’s education within the meaning of ‘sole parental responsibility’ was questioned – where the Family Law Act defines parental responsibility as including all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children – where it is necessary to give the provisions of the Assessment Act, the Collection Act and the Family Law Act a harmonious operation – where there is every reason to treat the term duties as including the duty created by s.3(1) of the Assessment Act which imposes on parents a primary duty to maintain their child – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) Pt IVA, ss.43B, 44,

44A, 44AA

Child Support (Assessment) Act 1989 (Cth), ss.3-4, 116, Pt 7, Div 5

Child Support (Registration and Collection) Act 1988 (Cth), ss.3(1),98B,111C,

Family Law Act 1975 (Cth), Pt.VII, ss.60–70Q

Cases cited:

AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173

Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288 at 300

Dobbins & Devlin (SSAT Appeal) [2014] FCCA 1274

Harris v Caladine (1991) 172 CLR 84,104

Rice & Asplund (1979) FLC 90-725

Applicant:

MR ACORA

Respondent:

MS SADLOWS

File Number:

DGC 2657 of 2007

Judgment of:

Judge A Kelly

Hearing date:

26 May 2020

Date of Last Submission:

26 May 2020

Delivered at:

Melbourne

Delivered on:

16 June 2020

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr. D. Ballan

Solicitors for the Respondent:	Bayside Solicitors
Amicus curiae:	Ms M. Underhill
Solicitors for the Registrar, Child Support:	Mills Oakley

ORDERS

The application in a case filed on 17 January 2020 be dismissed.
By 4:00pm on Tuesday, 30 June 2020, the applicant file and serve any further amended initiating application for a departure order pursuant to s 116 of the Child Support (Assessment)Act 1989 (Cth).
By 4:00pm on Tuesday, 14 July 2020, the respondent file and serve any further amended response to that further amended initiating application.
Liberty to apply.
Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym Acora & Sadlows is approved…

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 ACORA & SADLOWS

Details

AGLC: ACORA & SADLOWS [2020] FCCA 1580
Case: [2020] FCCA 1580
Decision Date: 16 June 2020

CaseChat Overview and Summary

The applicant, ACORA, sought a stay of a departure order granted by the Child Support Registrar, which had increased the child support payable for two children aged 10 and 14. The dispute involved a history of multiple orders made between 2007 and 2020, previous unsuccessful interim stay applications, and withdrawn contravention applications. The applicant's current request for sole parental responsibility represented a reversal of prior final consent orders. The applicant had also contested the Tribunal's decision to proceed in his absence and had initially sought to appeal the Tribunal's decision, though this appeal was later discontinued.

The central legal issue before the court was whether to grant a stay of the departure order. This required the court to consider the applicant's claim for sole parental responsibility, particularly in relation to financial decisions concerning a child's education, and how this interacted with the existing legislative framework. The court also had to determine the meaning of "parental responsibility" within the context of the *Family Law Act 1975* (Cth) and its harmonious operation with the *Child Support (Assessment) Act 1989* (Cth) and the *Child Support (Registration and Collection) Act 1988* (Cth).

Judge A Kelly reasoned that the term "duties" within the definition of parental responsibility should be interpreted to include the primary duty imposed on parents by s 3(1) of the *Child Support (Assessment) Act 1989* (Cth) to maintain their child. The court found that a harmonious operation of the relevant legislation necessitated this interpretation. Consequently, the application for a stay was dismissed.

The application was dismissed. The applicant was ordered to file and serve any further amended initiating application for a departure order by 4:00pm on Tuesday, 30 June 2020, and the respondent was to file and serve any further amended response by 4:00pm on Tuesday, 14 July 2020. Liberty to apply was granted, and costs were reserved.

Orders

Orders of the court

The application in a case filed on 17 January 2020 be dismissed.

By 4:00pm on Tuesday, 30 June 2020, the applicant file and serve any further amended initiating application for a departure order pursuant to s 116 of the Child Support (Assessment) Act 1989 (Cth).

By 4:00pm on Tuesday, 14 July 2020, the respondent file and serve any further amended response to that further amended initiating application.

Liberty to apply.

Costs reserved.

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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