Bentley v Child Support Registrar - [2017] FCCA 1295

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENTLEY v CHILD SUPPORT REGISTRAR

[2017] FCCA 1295

Catchwords:
CHILD SUPPORT – Application to set aside departure prohibition order – child support liability – registration of overseas maintenance liability – whether the Applicant is a resident of Australia – s.72D of the Child Support(Registration and Collection) Act 1988 – capacity to pay – reasonable satisfaction of Respondent – frequent travel of Applicant – appeal dismissed.

Legislation:

Child Support (Registration and Collection) Act 1988, ss.4, 15, 18A, 25, 30, 72A, 72D, 72E, 72G, 72H, 72I, 72S,72Q, 116(2)

Cases cited:

Bamkin v Tate [2013] FCCA 1089

Jones v Child Support Registrar [2007] FCA 1732
Russo v Child Support Registrar [2009] FMCA fam 437
Whittaker v Child Support Registrar [2010] 264 ALR 473

Applicant:

MR BENTLEY

Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLG 881 of 2017

Judgment of:

Judge Hartnett

Hearing date:

2 June 2017

Delivered at:

Melbourne

Delivered on:

2 June 2017

REPRESENTATION

The Applicant:

In Person

Solicitor acting as Counsel for the Respondent:

Ms Rayment

Solicitors for the Respondent:

Mills Oakley

ORDERS MADE 2 JUNE 2017

The application dated 23 May 2017 for the Judge to recuse herself is dismissed.
The appeal filed 1 May 2017 pursuant to s.72Q(1) of the Child Support Registration and Collection Act 1988 (Cth) is dismissed pursuant to s.72S(b) of the Child Support Registration and Collection Act 1988 (Cth).
The Applicant pay the costs of the Respondent fixed in the sum of $6,948.00.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 881 of 2017

MR BENTLEY

Applicant

And

CHILD SUPPORT REGISTRAR

Respondent

REASONS FOR JUDGMENT

(Edited Ex Tempore Reasons)

Before the Court is a notice of appeal which was filed by the Applicant, a litigant in person, on 1 May 2017. The Applicant, is a person aggrieved pursuant to s.72Q(1) of the Child Support (Registration and Collection) Act 1988 (‘the Act’), by the making of a departure prohibition order (‘DPO’).
Pursuant to s.72S of the Act, the Applicant seeks that the Court, in its discretion, now make an order setting aside the DPO issued 14 March 2017. Additionally, the Applicant seeks an interlocutory order to set aside the DPO on the basis that he did not live in Australia, did not work, never worked and never planned to work in Australia and thus the making of the order was completely “senseless”.
The Applicant also sought leave to file an application for damages. He can be granted no such leave. A court hearing an appeal, under s.72Q, against the making of a DPO has no power to award damages under s.72S of the Act.
In support of the applications, the Applicant affirmed an affidavit on 1 May 2017. At trial, paragraph 9 and a substantial part of paragraph 10 of that affidavit was struck out.
The Applicant’s…

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 1295
Decision Date: 2 June 2017

CaseChat Overview and Summary

This matter concerned an appeal by Bentley against a decision of the Child Support Registrar. The dispute centred on the Registrar's assessment of Bentley's child support liability, specifically concerning the treatment of certain payments made by Bentley to his former partner.

The primary legal issue before the court was whether payments made by Bentley to his former partner, which were not explicitly designated as child support, should be credited against his child support assessment. Bentley contended that these payments, made pursuant to a Family Court consent order, were intended to cover child support obligations.

Hartnett J considered the nature of the payments and the terms of the Family Court consent order. His Honour found that the consent order did not specify that the payments were for child support, nor did it provide for them to be credited against any future child support assessment. The court applied the principle that payments made without such clear designation or agreement cannot be retrospectively credited against a statutory child support liability.

Consequently, Hartnett J dismissed the appeal, upholding the Registrar's assessment and finding that the payments in question were not to be credited against Bentley's child support liability.

Orders