Benbow and Rosa and Anor - [2017] FCCA 2042

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENBOW & ROSA & ANOR

[2017] FCCA 2042

Catchwords:
CHILD SUPPORT – Where the father has made an application pursuant to Reg. 36 of the Family Law Regulations to have a child support order made by the District Court in Hong Kong discharged – where the mother seeks to have the application stayed or dismissed on the basis that the Australian court is a clearly inappropriate forum – where the mother bears the onus and cannot establish that it would be vexatious or oppressive to her if the proceedings continued.

Legislation:

Child Support (Registration & Collection) Act 1988 (Cth), ss.18A, 30
Family Law Regulations 1984 (Cth), rr. 24, 36, 38, 38A
Family Law Act 1975 (Cth), s.66S

Cases cited:

Henry & Henry (1996) FLC 92-685
Howarth & Howarth & Anor(No.2) [2017] FCCA 1949
Kent & Kent (2017) FamCAFC 157
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Rogers & Rogers (2010) FamCA1069
Voth & Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538
Whung & Whung and Ors (2011) 45 Fam LR 269
Salisbury & Landell (2012) FMCAfam 240

Applicant:

MR BENBOW

First Respondent:

MS ROSA

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

NCC 955 of 2016

Judgment of:

Judge Terry

Hearing date:

2 December 2016

Date of Last Submission:

2 December 2016

Delivered at:

Newcastle

Delivered on:

31 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Levick

Solicitors for the Applicant:

Baker Love Lawyers

Counsel for the First Respondent:	Mr Bateman
Solicitors for the First Respondent:	Harris Freeman Lawyers
The Second Respondent:	No appearance

ORDERS

The respondent’s interim application to have the applicant’s further amended initiating application filed on 3 August 2016 dismissed or permanently stayed is dismissed.
The matter is adjourned to 9.30am on 6 September 2017 for further consideration.

IT IS NOTED that publication of this judgment under the pseudonym Benbow & Rosa & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 955 of 2016

MR BENBOW

Applicant

And

MS ROSA

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

Mr Benbow has applied pursuant to Regulation 36 of the Family Law Regulations for an order discharging an order made by the District Court of the Hong Kong Special Adminstrative Region on 17 July 2014 which requires him to pay child support of HKD15,000.00 per month to Ms Rosa for the parties children [X] and [Y].
Mr Benbow has only ever voluntarily made 3 part-payments pursuant to the order and as at December 2016 he owed arrears of AUD92,000.00.
Although Mr Benbow’s application was headed “Variation of Maintenance Order”, he in fact sought to have the order discharged “with effect from the date to which same presently stands paid”.
Ms Rosa has filed a response in which she seeks an interim order that the application be dismissed or permanently stayed on the basis…

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: [2017] FCCA 2042
Decision Date: 31 August 2017

CaseChat Overview and Summary

In the matter of *Benbow and Rosa and Anor*, heard before Judge Terry, the applicant sought to proceed with an amended initiating application filed on 3 August 2016. The respondent had made an interim application seeking to have this amended application dismissed or permanently stayed.

The central legal issue before the court was whether the respondent's interim application to dismiss or permanently stay the applicant's further amended initiating application should be granted.

Judge Terry dismissed the respondent's interim application. The court did not provide detailed reasons for this decision in the provided text, but the outcome indicates that the applicant was permitted to continue with their amended initiating application. The matter was subsequently adjourned for further consideration.

Orders

Orders of the court

The respondent’s interim application to have the applicant’s further amended initiating application filed on 3 August 2016 dismissed or permanently stayed is dismissed.

The matter is adjourned to 9.30am on 6 September 2017 for further consideration.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.