BROWN & THE CHILD SUPPORT REGISTRAR - [2006] FamCA 1418

FAMILY COURT OF AUSTRALIA

BROWN & THE CHILD SUPPORT REGISTRAR

[2006] FamCA 1418

FAMILY LAW – APPEAL – CHILD SUPPORT - PRACTICE AND PROCEDURE – STAY OF PROCEEDINGS – Whether in refusing to stay enforcement proceedings in relation to a New Zealand child support debt registered for enforcement in Australia the trial Judge erred in failing to consider the needs of the children, the father’s capacity to pay, and the incapacity of a New Zealand Court to have regard to payments previously made by the father under Australian and New Zealand law.
FAMILY LAW – APPEAL – CHILD SUPPORT – ENFORCEMENT ORDER - Father argued that the proceedings before the trial Judge were not enforcement proceedings and accordingly that an enforcement order should not have been made – Full Court held that neither party appeared to have understood that an enforcement order was being sought at the hearing, and given that the parties were not offered an opportunity to be heard in relation to the order which the trial Judge proposed to make, the order could not stand.

APPELLANT:	Brown
RESPONDENT:	The Child Support Registrar
FILE NUMBER:	CAF 1982 of 1998
APPEAL NUMBER:	EA 65 of 2005
DATE DELIVERED:	20 December 2006
PLACE DELIVERED:	Canberra
JUDGMENT OF:	Finn, Holden and Coleman JJ
HEARING DATE:	8 September 2005
LOWER COURT JURISDICTION:	Family Court of Australia
LOWER COURT JUDGMENT DATE:	3 December 2004
THE APPELLANT:	Appeared on his own behalf
COUNSEL FOR THE RESPONDENT:	Mr Berger
SOLICITOR FOR THE RESPONDENT:	The Australian Government Solicitor

Orders

That the father be granted an extension of time until 15 August 2005 to file an application for leave to appeal the orders made by the Honourable Justice Rowlands on 26 May 2005.
That the application for leave to appeal be granted.
That the appeal be allowed.
That the orders made by the Honourable Justice Rowlands on 26 May 2005 be set aside and in their place orders 5, 6 and 7 of these orders be made.
That a permanent stay be granted in respect to payment by the father of $3,940.45 being part of a debt of $27,546.12 due to the Commonwealth of Australia as a maintenance debt under the Child Support (Registration and Collection Overseas-related Maintenance Obligations) Regulations 2000 the stayed sum having been paid directly to the mother between 24 August and November 2004.
That the father pay the sum of $6,709.85 (being part of the debt of $27,546.12 referred to in Order 5 of these orders) by way of instalments at the rate of $100 per month commencing on 22 January 2007.
That the application by the father for a permanent stay of the sum of $16,895.82 (being the balance of the debt of $27,546.12 referred to in Order 5 of these orders after deduction of the amount of $3,940.85 referred to in Order 5 of these orders and deduction of the amount of $6,709.85 referred to in Order 6 of these orders) be dismissed.
IT IS NOTED IN CONNECTION WITH THIS ORDER

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.

Keep reading for free

Create a free CaseChat account to read BROWN & THE CHILD SUPPORT REGISTRAR and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] FamCA 1418
Decision Date: 20 December 2006

CaseChat Overview and Summary

This matter came before the Full Court of the Federal Court of Australia, comprising Finn, Holden and Coleman JJ, on appeal from orders made by Justice Rowlands on 26 May 2005. The appeal concerned a substantial maintenance debt owed to the Commonwealth of Australia, arising under the Child Support (Registration and Collection Overseas-related Maintenance Obligations) Regulations 2000. The father sought to appeal the earlier orders concerning this debt.

The primary legal issues before the Full Court were whether the father should be granted an extension of time to file his application for leave to appeal, whether leave to appeal should be granted, and if so, the merits of the appeal itself concerning the imposition of a permanent stay on parts of the maintenance debt. The court was required to consider the circumstances surrounding the debt, including payments made directly to the mother, and determine the appropriate disposition of the outstanding amount.

The Full Court reasoned that an extension of time was warranted and granted leave to appeal. The appeal was allowed, leading to the setting aside of Justice Rowlands' orders. The court then made new orders, granting a permanent stay on $3,940.45 of the debt, representing an amount already paid directly to the mother. The father was ordered to pay $6,709.85 of the remaining debt by way of instalments of $100 per month, commencing in January 2007. However, the father's application for a permanent stay of the final balance of the debt, amounting to $16,895.82, was dismissed.

Orders

Orders of the court

That the father be granted an extension of time until 15 August 2005 to file an application for leave to appeal the orders made by the Honourable Justice Rowlands on 26 May 2005.

That the application for leave to appeal be granted.

That the appeal be allowed.

That the orders made by the Honourable Justice Rowlands on 26 May 2005 be set aside and in their place orders 5, 6 and 7 of these orders be made.

That a permanent stay be granted in respect to payment by the father of $3,940.45 being part of a debt of $27,546.12 due to the Commonwealth of Australia as a maintenance debt under the Child Support (Registration and Collection Overseas-related Maintenance Obligations) Regulations 2000 the stayed sum having been paid directly to the mother between 24 August and November 2004.

That the father pay the sum of $6,709.85 (being part of the debt of $27,546.12 referred to in Order 5 of these orders) by way of instalments at the rate of $100 per month commencing on 22 January 2007.

That the application by the father for a permanent stay of the sum of $16,895.82 (being the balance of the debt of $27,546.12 referred to in Order 5 of these orders after deduction of the amount of $3,940.85 referred to in Order 5 of these orders and deduction of the amount of $6,709.85 referred to in Order 6 of these orders) be dismissed.

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.