Balshaw and Balshaw and Anor - [2016] FCCA 1176

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALSHAW & BALSHAW & ANOR

[2016] FCCA 1176

Catchwords:
CHILD SUPPORT – Departure from assessments – application for leave under Child Support (Assessment) Act 1989 (Cth), s.112 – whether the Court may grant leave to the Child Support Registrar – whether assessment is “in force” – where terminating events have occurred – where both applicant and respondent seek leave under s.112 – where respondent seeks leave for a period in excess of 7 years – where applicant and respondent both consent to the grant of leave – whether consent of the parties should outweigh all other considerations – where applicant and respondent both seek in the alternative an order to be made by the Court under Child Support (Assessment) Act 1989 (Cth), s.118 – where application cannot be made under Child Support (Assessment) Act 1989 (Cth), s.98B – where departure determination cannot be made under s.98S – Child Support Registrar cannot make a departure determination under s.98S unless an application has been made under s.98B – administrative assessment of child support is not in force once a child support terminating event has occurred.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.12, 31, 77, 98B, 98C, 98S, 111, 112, 118, 142, 151B

Cases cited:

Dwyer v McGuire (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-240
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641; [2001] FamCA 632
Klement & Glynn [2010] FamCA 40
McColl & McColl [2013] FCCA 736

Applicant:

MR BALSHAW

First Respondent:

MS BALSHAW

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 6997 of 2014

Judgment of:

Judge Scarlett

Hearing date:

7 December 2015

Date of Last Submission:

7 December 2015

Delivered at:

Sydney

Delivered on:

17 May 2016

REPRESENTATION

Solicitor for the Applicant:

Mr McCulloch

Solicitors for the Applicant:

Legal Aid NSW

Solicitor for the First Respondent:

Ms Morey

Solicitors for the First Respondent:	South West Sydney Legal Centre (now Coleman Greig Lawyers)
Counsel for the Second Respondent:	Mr Kaplan
Solicitors for the Second Respondent:	Australian Government Solicitor

ORDERS

The Application for leave to be granted to the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the periods 27 February 2009 to 30 November 2009 and 1 December 2009 to 28 February 2011 contained in the Initiating Application filed on 5 November 2014 is dismissed.
The Application for leave to be granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the period 10 May 2006 and 15 November 2013 contained in the Response filed on 9 February 2015 is dismissed as incompetent.
The Application for Orders under section 112 of the said Act for leave to be granted for the Court to make a determination under section 118 of the said Act contained in the Initiating Application filed on 5 November 2014 is transferred to the docket of Judge Henderson to be…

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: [2016] FCCA 1176
Decision Date: 17 May 2016

CaseChat Overview and Summary

In the matter of *Balshaw and Balshaw and Anor*, Judge Scarlett of the Federal Circuit Court of Australia considered applications by the Child Support Registrar for leave to make determinations under the *Child Support (Assessment) Act 1989* (Cth). The applications concerned retrospective child support assessments for various periods between 2006 and 2013.

The primary legal issues before the Court were whether to grant leave to the Child Support Registrar to make determinations under section 98S of the Act for specific retrospective periods, and whether to grant leave for the Court to make determinations under section 118 of the Act.

Judge Scarlett dismissed the application for leave to make a determination under section 98S for the periods 27 February 2009 to 30 November 2009 and 1 December 2009 to 28 February 2011. The Court also dismissed as incompetent the application for leave to make a determination under section 98S for the period 10 May 2006 to 15 November 2013. However, the applications for leave to make determinations under section 118 of the Act, filed in both the Initiating Application and the Response, were transferred to the docket of Judge Henderson for the purpose of setting a final hearing date.

Orders

Orders of the court

The Application for leave to be granted to the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the periods 27 February 2009 to 30 November 2009 and 1 December 2009 to 28 February 2011 contained in the Initiating Application filed on 5 November 2014 is dismissed.

The Application for leave to be granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the period 10 May 2006 and 15 November 2013 contained in the Response filed on 9 February 2015 is dismissed as incompetent.

The Application for Orders under section 112 of the said Act for leave to be granted for the Court to make a determination under section 118 of the said Act contained in the Initiating Application filed on 5 November 2014 is transferred to the docket of Judge Henderson to be listed for mention on a date to be fixed for the purpose of setting a final hearing date.

The Application of Orders under section 112 of the said Act for leave to be granted for the Court to make a Determination under section 118 of the said Act contained in the Response filed on 9 February 2015 is transferred to the docket of Judge Henderson to be listed for mention on a date to be fixed for the purpose of setting a final hearing date.

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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