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: |
| Cases cited: Bauer & Becker [2009] FMCAfam 480 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…
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- Case
- [2017] FCCA 2400
- Decision Date
CaseChat Overview and Summary
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
1.
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”.
2.
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”.
3.
The sum presently held by the Child Support Registrar of $4610.61 to be refunded to the applicant forthwith.
THE COURT NOTES THAT:
4.
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.
5.
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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