Bamkin and Tate - [2013] FCCA 1089

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAMKIN & TATE

[2013] FCCA 1089

Catchwords:
CHILD SUPPORT – Departure Prohibition Order – Departure Prohibition Order by Child Support Registrar restraining applicant from leaving Australia – applicant applying to Court to have order revoked – Court has no jurisdiction to review a departure prohibition order.

Legislation:
Child Support (Registration and Collection) Act 1988 (Cth), ss.72D, 72I, 72L, 72M, 72Q, 72R, 72S, 72T

Federal Circuit Court of Australia (Consequential Amendments) Act 2013 (Cth)

Jurisdiction of the Federal Magistrates Court Legislation Act 2006 (Cth)

T & G & Child Support Registrar [2003] FMCAfam 197

Applicant:

MR BAMKIN

Respondent:

MS TATE

File Number:

SYC 1276 of 2008

Judgment of:

Judge Scarlett

Hearing date:

13 August 2013

Date of Last Submission:

13 August 2013

Delivered at:

Sydney

Delivered on:

13 August 2013

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The Application that the Departure Prohibition Order dated 31 October 2012 be revoked is dismissed.
The Application for Orders 2 and 3 filed on 1 July 2013 is listed for final hearing on 15 October 2013 at 2:15 pm.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 1276 of 2008

MR BAMKIN

Applicant

And

MS TATE

Respondent

REASONS FOR JUDGMENT

Application

This is an Application for revocation of a Departure Prohibition Order made by the Child Support Registrar on 31 October 2012, discharge of a Child Support Departure Order made by consent on 18 December 2009 and an order discharging all arrears of child support payments and late payment penalties.
In his Application filed on 1 July 2013 the Applicant seeks as both an interim and a final order:
That the Departure Prohibition Order of the Applicant dated 31 October 2012 be revoked.
The Application for final orders in respect the Child Support Departure Order and the arrears of child support payments can be left until the final hearing, which will take place on 15 October 2015. However, the Application for revocation of the Departure Prohibition Order should be dealt with immediately, as the Court has no jurisdiction to make the Order.

Evidence

The Applicant relies on his affidavit sworn on 28 June 2013, where he deposes that on 31 October 2012 the Child Support Registrar issued a Departure Prohibition Order under the provisions of s.72D of the Child Support (Registration and Collection) Act 1988 (Cth). A copy of the Order forms Annexure “I” to his affidavit.
The Applicant deposes that:
22. Upon receiving the Departure Prohibition Order from the Child Support Agency I have contacted the Agency on numerous occasions in an attempt to explain my current financial circumstances and requesting to have that Order revoked.
23. On 14 May 2013 I received a telephone call from my Case manager from the Child Support Agency, which indicated that my request for the Departure Prohibition Order to be revoked and…

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 Bamkin and Tate

Details

AGLC: BAMKIN & TATE [2013] FCCA 1089
Case: [2013] FCCA 1089
Decision Date: 13 August 2013

CaseChat Overview and Summary

The applicant, Bamkin, sought to have a Departure Prohibition Order (DPO) made against him on 31 October 2012 revoked. The matter came before Judge Scarlett in the Federal Court of Australia.

The primary legal issue before the Court was whether the DPO should be revoked. This required the Court to consider the grounds for making and revoking such an order under the relevant legislation, and to assess whether those grounds were still met. The applicant also sought further orders, the nature of which were to be determined at a later hearing.

Judge Scarlett dismissed the application for revocation of the DPO. The Court's reasoning, not detailed in the provided text, would have involved an assessment of the evidence and legal arguments presented by both parties concerning the continued necessity of the DPO. The Court also ordered that the applicant's further applications be listed for a final hearing.

Orders

Orders of the court

The Application that the Departure Prohibition Order dated 31 October 2012 be revoked is dismissed.

The Application for Orders 2 and 3 filed on 1 July 2013 is listed for final hearing on 15 October 2013 at 2:15 pm.

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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