Cary and Dalgard - [2018] FCCA 2942

FEDERAL CIRCUIT COURT OF AUSTRALIA

CARY & DALGARD

[2018] FCCA 2942

Catchwords:
CHILD SUPPORT – Enforcement.

Legislation:

Family Law Act 1975 (Cth), pt.XIIIA

Federal Circuit Court of Australia Rules 2001 r. 11.01, sub-div 25B, sch.2
Child Support (Registration and Collection) Act1988 (Cth) s.4
Tax Administration Act 1953
Income Tax Assessment Act 1977, ss.84.5, 86.5

Cases cited:

Spratt v IRC (NZ) (1964) 9 AITR 227
Woodhurst & Rubbens(No.2) [2016] FamCA 786

Applicant:

MS CARY

Respondent:

MR DALGARD

File Number:

MLC 7706 of 2009

Judgment of:

Judge Harland

Hearing date:

24 September 2018

Date of Last Submission:

24 September 2018

Delivered at:

Melbourne

Delivered on:

24 September 2018

REPRESENTATION

Solicitors for the Applicant:

Mr Tatti for WMB Lawyers

The Respondent:

In person

ORDERS

Pursuant to rule 11.01 of the Federal Circuit Court Rules 2001 (Cth) (‘FCCR’), Ms G be joined as Second Respondent.
Pursuant to rule 6.04 of the FCCR, further service on the Second Respondent of the documents filed in these proceedings is dispensed with.
The Applicant has leave to file with the Registrar of the Court two Third Party Debt Notices (‘TPDN’) for issuing on Business A being:
(a) In the sum of $350.00 per week to be paid to the Registrar of Child Support; and
(b) In the sum of $150.00 per week to be paid to WMB Lawyers.
For the purposes of the TPDN, the Applicant is dispensed with further compliance with the FCCR, including rule 25B.40(1).
For the purposes of rule 25B.41, the Applicant be permitted to serve the Respondents by post and email, and personal service be dispensed with.
Upon the Child Support Debt being paid in full, the Applicant have leave to approach the Registrar of the Court to vary the amount provided for in order 3(b).
The Applicant have leave to make an oral application for review of the Registrar’s Decision made 24 September 2018 in respect of the Contravention Application filed 14 August 2018.
The Contravention Application be re-instated.
Pursuant to rule 6.04 and 6.14 of the FCCR, further service of the Contravention Application is dispensed with.
The Respondent file and serve an affidavit in response to the Contravention Application setting out his evidence (including as to his reasonable excuse in failing to comply with Orders) by 4.00pm on 30 November 2019.
The Contravention Application be listed for Hearing on 27 February 2019.
Any further Contravention Application filed in these proceedings be listed before Judge Harland for Mention in lieu of the Registrar’s List.
The Respondent pay the Applicant’s costs fixed in the sum of $10,000.00.
All extant applications, save for the Contravention Application filed 14 August 2018, be otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 7706 of 2009

MS CARY

Applicant

And

MR DALGARD

Respondent

REASONS FOR JUDGMENT

The applicant filed an application in a case seeking orders for Ms G…

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: [2018] FCCA 2942
Decision Date: 24 September 2018

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the applicant, Ms. Cary, sought various orders against the respondent, Mr. Dalgard, in relation to child support obligations and a contravention application. The proceedings involved complex procedural matters, including the joinder of a second respondent, dispensing with further service, and the issuance of Third Party Debt Notices.

The court was required to determine whether to join Ms. G as a second respondent, dispense with further service on the respondents, grant leave to issue Third Party Debt Notices for specified weekly sums, and permit alternative methods of service for the proceedings. Additionally, the court had to consider the re-instatement of a contravention application, the filing of a response by the respondent, and the listing of the contravention application for hearing. The court also had to determine the applicant's costs and the dismissal of extant applications.

Judge Harland made a series of orders addressing these issues. Ms. G was joined as the Second Respondent, and further service on her was dispensed with. The applicant was granted leave to file two Third Party Debt Notices, one for child support payments to the Registrar of Child Support and another for legal costs to WMB Lawyers, with certain procedural requirements for these notices being dispensed with. The applicant was also permitted to serve the respondents by post and email, dispensing with personal service. The contravention application was re-instated, and the respondent was ordered to file an affidavit in response by a specified date, with the application to be listed for hearing. The respondent was ordered to pay the applicant's costs fixed at $10,000.00, and all other extant applications, save for the contravention application, were dismissed.

Orders

Orders of the court

Pursuant to rule 11.01 of the Federal Circuit Court Rules 2001 (Cth) (‘FCCR’), Ms G be joined as Second Respondent.

Pursuant to rule 6.04 of the FCCR, further service on the Second Respondent of the documents filed in these proceedings is dispensed with.

The Applicant has leave to file with the Registrar of the Court two Third Party Debt Notices (‘TPDN’) for issuing on Business A being:

(a) In the sum of $350.00 per week to be paid to the Registrar of Child Support; and

(b) In the sum of $150.00 per week to be paid to WMB Lawyers.

For the purposes of the TPDN, the Applicant is dispensed with further compliance with the FCCR, including rule 25B.40(1).

For the purposes of rule 25B.41, the Applicant be permitted to serve the Respondents by post and email, and personal service be dispensed with.

Upon the Child Support Debt being paid in full, the Applicant have leave to approach the Registrar of the Court to vary the amount provided for in order 3(b).

The Applicant have leave to make an oral application for review of the Registrar’s Decision made 24 September 2018 in respect of the Contravention Application filed 14 August 2018.

The Contravention Application be re-instated.

Pursuant to rule 6.04 and 6.14 of the FCCR, further service of the Contravention Application is dispensed with.

10.

The Respondent file and serve an affidavit in response to the Contravention Application setting out his evidence (including as to his reasonable excuse in failing to comply with Orders) by 4.00pm on 30 November 2019.

11.

The Contravention Application be listed for Hearing on 27 February 2019.

12.

Any further Contravention Application filed in these proceedings be listed before Judge Harland for Mention in lieu of the Registrar’s List.

13.

The Respondent pay the Applicant’s costs fixed in the sum of $10,000.00.

14.

All extant applications, save for the Contravention Application filed 14 August 2018, be otherwise dismissed.

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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