BALZANO & BALZANO
[2008] FMCAfam 1530
•19 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BALZANO & BALZANO | [2008] FMCAfam 1530 |
| CHILD SUPPORT – Application for departure – child support agreement in place – no orders sought to discharge the child support agreement. |
| Child Support (Assessment) Act 1989, ss.116, 117, 136 |
| McGuiness & Cowie (2002) 29 Fam LR 441 |
| Applicant: | MR BALZANO |
| Respondent: | MS BALZANO |
| File Number: | SYC 3973 of 2008 |
| Judgment of: | Jarrett FM |
| Hearing date: | 19 August 2008 |
| Date of Last Submission: | 19 August 2008 |
| Delivered at: | Sydney |
| Delivered on: | 19 August 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Cohen |
| Solicitors for the Applicant: | Legal Aid New South Wales |
| No appearance by or on behalf of the Respondent: |
ORDERS
The application filed 7 July, 2008 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Balzano & Balzano is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 3973 of 2008
| MR BALZANO |
Applicant
And
| MS BALZANO |
Respondent
REASONS FOR JUDGMENT
This is an application for an order that the child support assessment be reduced to nil as at the date at which it stands paid. It is also an application for such further or other orders as the Court deems fit. The application and the material filed in support of it reveal that there is an administrative assessment for child support in place in respect of the applicant by which he has to pay child support. The administrative assessment is based upon an accepted child support agreement entered into between the applicant and the respondent in this case. The child support agreement is set out as annexure A to his affidavit filed on 7 July 2008.
The Child Support (Assessment) Act 1989 permits parties to come to an agreement and indeed encourages parties to come to an agreement about child support if they are able to do so. It permits the acceptance by the Registrar of agreements relating to child support.
Once an agreement has been accepted then the mechanisms under the Act take over and an administrative assessment of child support is issued which reflects the child support agreement entered into between the parties. The child support agreement itself can be set aside, discharged or otherwise dealt with by the Court pursuant to s.136 of the Act, but it is necessary to understand what s.136 permits the Court to do and in what circumstances it permits the Court to do those things.
Section 136(2)(a) and (b) perhaps reflects the general law in respect of contracts. It provides that the Court might set aside an agreement for child support if it was obtained by fraud or there was a failure to disclose information, or it was entered into in circumstances where there was undue influence or duress in obtaining that agreement, or it was obtained where one or other of the parties engaged in unconscionable conduct. There are some grounds available to set aside a child support agreement where that agreement is a "limited child support agreement" for the purposes of the Act, and then there is a provision which provides for the Court to set aside a binding child support agreement which -
because of exceptional circumstances, relating to a party to the agreement or a child in respect of whom the agreement is made, that have arisen since the agreement was made, the applicant or the child will suffer hardship if the agreement is not set aside.
That there is a difference between the child support agreement and the assessment issued upon the basis of that child support agreement is picked up in s.136(4) of the Act. That section provides:
If:
(a)the Court sets aside a child support agreement under this section; and
(b)the Court is satisfied as mentioned in para. 117(1)(b) (departure orders);
the Court may make an order under div. 4 of pt. 7 without an application having been made under s.116.
That section clearly identifies that there is really two steps to the process if a party is applying to have child support reduced and a child support agreement discharged. In this case no application is made and on the material there is no basis to support the discharge of the child support agreement under s.136 of the Act. The application simply seeks that the child support assessment be reduced to nil. The Court's power to make that order is found in s.116 and 117 of the Act, but s.116(1) proscribes the jurisdiction of the Court by requiring parties to have made applications under pt. 6A of the Act before coming to Court.
Section 116(1)(b) of the Act permits the Court to make an order for departure under s.116 and 117 if the applicant is a party to other proceedings that are presently pending before the Court having jurisdiction under the Act. If there was another pending application before this Court, an application under 116 or 117(2) might piggyback, for want of a better expression, upon that application (see cases like McGuiness & Cowie (2002) 29 Fam LR 441). But that is not the case here. There is no such application upon which this one might piggyback. There is no application which is before the Court in respect of which the Court has jurisdiction.
The application must in the circumstances be refused. The application filed on 7 July 2008 will be dismissed.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: S. Haysom
Date: 20 November 2009
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