FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C.S.R. & F & M PTY LTD | [2007] FMCAfam 477 |
| CHILD SUPPORT – Enforcement of child support – meaning of ‘child support debtor’ – operation of s.72a of Child Support (Assessment) Act 1989 – whether s.72a can be issued with respect to debt owed to company controlled by chid support debtor. PRACTICE AND PROCEDURE – Jurisdiction of Federal Magistrates Court – power to grant declaratory relief – whether declaratory relief appropriate – appropriate terms for a declaration. |
| Child Support (Registration & Collection) Act 1986 ss.72a, 72c, 104(1), 105 Child Support (Assessment) Act 1989 ss.106, 107, 141 Constitution 1901 s.51(xxxi) Family Law Act 1975 ss.4(1)(b), 55a, 92, 78, 79, 80(k), 90aa, 90ae, 90af, 90ak, 105, 106b, 113, 114, 123 Family Law Rules 2004 r.123 Federal Magistrates Act, 1999 s.16 |
| Alcaine v Alcaine and Abrahams (Unrep, Sydney SYD9879/94, 20 March 1997, Nicholson CJ, Ellis and O'Ryan JJ) Ashton v Ashton [1986] FamCA unrep10; (1986) FLC 91-777 Aussie Airlines Pty Ltd v Australian Airlines [1996] FCA 813 Bailey v Bailey, Re [1990] FamCA unrep129; (1990) FLC 92-117 BP v KS [2002] FamCA 1454; (2003) FLC 93-157 Friss v Friss [2000] FamCA 824 Ireland v Ireland (1986) FLC 91-731 Manning v Manning (1977) FLC 90-298 Money v Money [1986] FamCA unrep672; (1986) FLC 91-700 Ostasheen Pty Ltd v Deputy Registrar Child Support [1998] FamCA 68; (1998) FLC 98-001 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 The Queen v Lavender [2005] HCA 37; (2005) 222 CLR 67 Smith v Smith (1979) FLC 90-642 W & W [2006] FamCA 163 |
Glover, “Discretionary trusts, fiduciary duties and the Family Law Act: Has the Family Court acted beyond power?” (2000) 14 AJFL 184
Puig, “A Two-Edged Sword: Salomon and the Separate Legal Entity Doctrine” [2000] MurUEJL 32
| Applicant: | CHILD SUPPORT REGISTRAR |
| First Respondent: | F |
| Second Respondent: | M PTY LTD (ACN XXX XXX XXX) |
| File number: | DGM 293 OF 2002 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 24 May 2007 |
| Date of last submission: | 24 May 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 24 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr St John SC |
| Solicitors for the Applicant: | Australian Government Solicitor |
| The First Respondent appearing in… |
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- Case
- [2007] FMCAfam 477
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Family Law Act provided the necessary authority to make declarations outside the specific areas of child support or maintenance, and if so, which sections of the Act could be relied upon. The court had to examine the relevant sections of the Family Law Act, including sections 113, 78, 55a, and 92, to determine if any of these sections could be interpreted to allow for the declarations sought by the applicants. The court also considered previous cases such as Manning v Manning and Smith v Smith, which had addressed similar issues of jurisdictional scope.
The court concluded that the only relevant power to make declarations under the Family Law Act was contained in section 113, which pertained to proceedings for declarations regarding the validity of a marriage, divorce, or annulment. The court found that section 113 did not provide a sufficiently broad power to grant the declarations sought in this case. Additionally, the court determined that other sections of the Act, such as sections 78, 55a, and 92, did not empower the court to make the declarations in question. The court held that the Family Law Act did not provide the necessary power to make the declarations sought by the applicants, and therefore dismissed the application.
The final orders of the court were to dismiss the application for declarations in relation to the operation of section 72a of the Child Support (Registration and Collection) Act 1988. This decision reinforced the understanding of the limited scope of the Family Court's powers under the Family Law Act regarding declaratory relief.
Orders
Orders of the court
1.
That the application for declarations in relation to the operation of section 72a of the Child Support (Registration and Collection) Act 1988 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
The only relevant power to make declarations under the Family LawAct1975 is that contained in s.113 as follows:113 [Proceedings for declarations] In proceedings of the kind referred to in paragraph (b) of the definition of matrimonial cause in subsection 4(1), the court may make such declaration as is justified. Section 4(1) provides the relevant definition for para (b) of definition of matrimonial cause:4. [Interpretation] (1) In this Act, the standard Rules of Court and the related Federal Magistrates Rules, unless the contrary intention appears:…"matrimonial cause" means: …(b) proceedings for a declaration as to the validity of:(i) a marriage; or(ii) a divorce; or(iii) the annulment of a marriage;by decree or otherwise; or Section 113 does not provide a power to grant declaratory relief that is sufficiently broad to cover the circumstances of this case. Other limited powers to grant declaratory relief in areas unrelated to child support or maintenance appear in ss.55a, 78 and 92 of the Family Law Act1975. It has been established that the Family Law Act provides no power to make a declaration as to the death of a spouse (see Manning v Manning (1977) FLC 90-298), nor, without more, the power to make declarations as to the value of particular property or a declaration that a certain amount of money is payable by one person to another: see Smith v Smith (1979) FLC 90-642. In Money v Money [1986] FamCA unrep672; (1986) FLC 91-700 the Full Court approved the dicta of Lindenmeyer J in Smith v Smith (1979) FLC 90-642 at 78,363-4 that:The only provisions of the Act which specifically give the court power to make declarations are sec. 78 and 113, but the latter is clearly not applicable to these proceedings, nor, in my opinion, is the former. Section 78, as indicated above, is related to definition para. (ca), and empowers the court to declare the existing title or rights of the parties in respect of “property”. Whilst the definition of “property” contained in sec. 4(1) of the Act as explained by the Full Court in In the Marriage of Duff and Duff (1977) FLC ¶90-217 is wide enough to include a chose in action, such as an enforceable right under an agreement, sec. 78 assumes the existence of the property and is aimed at resolving disputes between the parties to a marriage in relation to the title to that property. An application of the kind now before me seeks a declaration of the existence of property (viz. that one party owes the other a certain sum of money) and not a declaration of the parties’ rights in relation to some existing property. Thus it is not within the section.Certainly sec. 80(k) would be wide enough to empower the court to make a declaration in a appropriate case, but as the Full Court of this court said in In the Marriage of King and King (1977) FLC ¶90-299 at p.76,580. sec. 80 is not itself a substantive head of power but only an ancillary one. The substantive head of power must therefore be found elsewhere in Pt. VIII. That section therefore is of no assistance to the applicant in these proceedings.