Capella and Raines and Anor - [2020] FCCA 984

FEDERAL CIRCUIT COURT OF AUSTRALIA

CAPELLA & RAINES & ANOR

[2020] FCCA 984

Catchwords:
CHILD SUPPORT – FAMILY LAW – Mother is primary carer – multi jurisdictional dispute – the Court has jurisdiction to vary orders created in the Family Court of City A – USA is a reciprocating jurisdiction – City A orders are a registered overseas maintenance liability – child maintenance order registered in Australia by the mother – father’s circumstances have changed to justify variation – father unable to pay amount fixed by City A orders – mother seeking order for incarceration of father in City A – mother not filing financial statements.

Legislation:

Family Law Act 1975 (Cth), ss.66J, 66K, 66S, 110

Child Support (Registration and Collection) Act 1989 (Cth), ss.4, 18A, 30(1)

Cases cited:

ADG & VO [2007] FMCAfam 818

Child Support Registrar & Higgins and Anor [2016] FamCAFC 2

Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56

Imago & Imago [2010] FMCAfam 411

Klein & Wright [2007] FMCAfam 360

Newbeld & Newbeld [2007] FMCAfam 465

Pitney & Pitney [2018] FamCA 996

Applicant:

MR CAPELLA

Respondent:

MS RAINES

Intervener:

CHILD SUPPORT REGISTRAR

File Number:

MLC 329 of 2020

Judgment of:

Judge McNab

Hearing date:

20 April 2020

Date of Last Submission:

20 April 2020

Delivered at:

Melbourne

Delivered on:

20 April 2020

REPRESENTATION

Counsel for the Applicant:

Ms Devine

Solicitor for the Applicant:

MST Lawyers

The Respondent in Person:

Counsel for the Intervenor:

Mr Bishop

Solicitor for the Intervenor:

Mills Oakley

ORDERS

UPON THE RESPONDENT’S UNDERTAKING given in writing in paragraph 24 of his Affidavit filed 15 April 2020, to withdraw his Application to Modify the Child Maintenance order made on 13 December 2018, such Application being filed on 30 May 2019 in the City A Family Court, and on his undertaking through his Counsel to do so within 7 days of these Orders,

Pursuant to regulation 36 of the Family Law Regulations 1984 (Cth), the order made 13 December 2018 in the Family Court of City A in relation to ongoing child maintenance in the sum of US$1,876 payable by the applicant to the respondent for the child, X, born in 2009 (‘the child’), and registered with the Child Support Agents and Services Australia, reference number …, be discharged as and from 1 January 2019.
For the period 1 January 2019 until 22 February 2019, the child maintenance payable by the applicant to the respondent for the child be set at nil.
For the period 22 February 2019 until 1 June 2019, the child maintenance payable by the applicant to the respondent for the child be set at US$864.
That for the period 1 June 2019 until the child turns 18 years of age, in 2027, the maintenance be set at A$375 per calendar month.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 329…

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: [2020] FCCA 984
Decision Date: 20 April 2020

CaseChat Overview and Summary

In the matter of *Capella and Raines*, heard by Judge McNab, the dispute concerned an application to modify a child maintenance order. The applicant sought to discharge an existing order for child maintenance, while the respondent had filed an application to modify that same order.

The court was required to determine the appropriate child maintenance payable by the applicant to the respondent for their child. This involved considering the period from the initial order, through a period of nil payment, and then setting a new monthly maintenance amount until the child turned eighteen.

The court's decision was largely based on an undertaking provided by the respondent to withdraw his application to modify the existing child maintenance order. Pursuant to regulation 36 of the *Family Law Regulations 1984* (Cth), the court discharged the original child maintenance order made on 13 December 2018, effective from 1 January 2019. The court then set the child maintenance payable at nil for the period between 1 January 2019 and 22 February 2019. For the subsequent period from 22 February 2019 to 1 June 2019, the maintenance was set at US$864. Finally, for the period from 1 June 2019 until the child turned eighteen, the maintenance was set at A$375 per calendar month.

Orders

Orders of the court

UPON THE RESPONDENT’S UNDERTAKING given in writing in paragraph 24 of his Affidavit filed 15 April 2020, to withdraw his Application to Modify the Child Maintenance order made on 13 December 2018, such Application being filed on 30 May 2019 in the City A Family Court, and on his undertaking through his Counsel to do so within 7 days of these Orders,

Pursuant to regulation 36 of the Family Law Regulations 1984 (Cth), the order made 13 December 2018 in the Family Court of City A in relation to ongoing child maintenance in the sum of US$1,876 payable by the applicant to the respondent for the child, X, born in 2009 (‘the child’), and registered with the Child Support Agents and Services Australia, reference number …, be discharged as and from 1 January 2019.

For the period 1 January 2019 until 22 February 2019, the child maintenance payable by the applicant to the respondent for the child be set at nil.

For the period 22 February 2019 until 1 June 2019, the child maintenance payable by the applicant to the respondent for the child be set at US$864.

That for the period 1 June 2019 until the child turns 18 years of age, in 2027, the maintenance be set at A$375 per calendar month.

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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