Child Support Registrar and Holub - [2017] FCCA 2400

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & HOLUB

[2017] FCCA 2400

Catchwords:
CHILD SUPPORT – Application for leave to make a departure application more than seven years – leave granted.

Legislation:

Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Act 1988

Cases cited:

Bauer & Becker [2009] FMCAfam 480
Child Support Registrar & Rawlings [2013] FCCA 370
Dalton & Munro (2015) FLC 294
Hacherl & Berrios [2010] FMCAfam 668

McColl & McColl [2013] FCCA 736

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR HOLUB

File Number:

SYC 3855 of 2015

Judgment of:

Judge Henderson

Hearing date:

19 September 2017

Date of Last Submission:

19 September 2017

Delivered at:

Sydney

Delivered on:

3 October 2017

REPRESENTATION

Counsel for the Applicant:

Ms Sangha

Solicitors for the Applicant:

Mills Oakley Lawyers

Counsel for the Respondent:

Mr McCulloch

ORDERS

I grant the husband leave under section 112 of the Child Support (Assessment) Act 1989 to make an application for a departure order of child assessments under section 118 of the Act for each period within the period 3 November 2008 to 4 November 2013, “the period”.
I make a departure order for child support for each period in “the period” and order the total amount of child support payable be set as equal to the moneys paid each period within “the period”.
The sum presently held by the Child Support Registrar of $4610.61 to be refunded to the applicant forthwith.

THE COURT NOTES THAT:

It is the intention of the parties that the overall child support liability is to be set to the amount ‘as it stands paid’ and that any debt or overpayment remaining after these Orders have been given effect by the Child Support Registrar is to be discharged, or otherwise, be gifted to the party who stands in credit with the effect that the child support debt of the applicant is extinguished and that there be no overpayment debt payable to the applicant by the respondent mother.
It is the intention of the parties that there be nil balance of account under the child support liability as a result of these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3855 of 2015

CHILD SUPPORT REGISTRAR

Applicant

And

MR HOLUB

Respondent

REASONS FOR JUDGMENT

The matter of Holub & Ms S is an application filed by the husband on 3 November 2015 seeking leave to depart from assessments of child support of greater than 18 months in time from the date of filing the application.
Leave was sought by the husband under section 112 of the Child Support (Assessment) Act 1989[1]. If granted he sought additionally
[1] Child Support (Assessment) Act 1989, s 112.
An order that the assessments stand as if they had been paid, and
$4,610.61 currently held by the Agency and having been intercepted…

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 2400
Decision Date: 3 October 2017

CaseChat Overview and Summary

This matter concerned an application by the husband for leave to seek a departure order regarding child support assessments. The dispute involved child support payable for the period between 3 November 2008 and 4 November 2013. The application was heard by Judge Henderson.

The primary legal issues before the court were whether to grant the husband leave to apply for a departure order under section 112 of the *Child Support (Assessment) Act 1989* and, if leave were granted, whether to make a departure order under section 118 of the Act. The court was also required to determine the appropriate amount of child support payable for the specified period, considering the parties' intentions.

Judge Henderson granted the husband leave to apply for a departure order. The court then made a departure order, setting the total child support payable for each period within the specified timeframe to be equal to the moneys already paid during that period. This approach reflected the parties' clear intention that the overall child support liability should be aligned with the amounts actually paid, effectively extinguishing any outstanding debt for the applicant and preventing any overpayment debt being owed to the respondent mother, resulting in a nil balance of account. The court ordered the refund of the sum of $4610.61 held by the Child Support Registrar to the applicant.

Orders

Orders of the court

I grant the husband leave under section 112 of the Child Support (Assessment) Act 1989 to make an application for a departure order of child assessments under section 118 of the Act for each period within the period 3 November 2008 to 4 November 2013, “the period”.

I make a departure order for child support for each period in “the period” and order the total amount of child support payable be set as equal to the moneys paid each period within “the period”.

The sum presently held by the Child Support Registrar of $4610.61 to be refunded to the applicant forthwith.

THE COURT NOTES THAT:

It is the intention of the parties that the overall child support liability is to be set to the amount ‘as it stands paid’ and that any debt or overpayment remaining after these Orders have been given effect by the Child Support Registrar is to be discharged, or otherwise, be gifted to the party who stands in credit with the effect that the child support debt of the applicant is extinguished and that there be no overpayment debt payable to the applicant by the respondent mother.

It is the intention of the parties that there be nil balance of account under the child support liability as a result of these Orders.

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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