Child Support Registrar and McIntyre - [2017] FCCA 2384

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & MCINTYRE

[2017] FCCA 2384

Catchwords:
CHILD SUPPORT – Leave to bring a Departure application.

Legislation:

Child Support (Assessment) Act 1989, ss,111, 112, 117

Cases cited:

Bauer & Becker [2009] FMCAfam 480

Hacherl & Berrios [2010] FMCAfam 668
McColl & McColl [2013] FCCA 736

Applicant:

CHILD SUPPORT REGISTRAR

Respondent:

MR MCINTYRE

File Number:

SYC 8415 of 2015

Judgment of:

Judge Henderson

Hearing date:

11 July 2017

Date of Last Submission:

11 July 2017

Delivered at:

Sydney

Delivered on:

3 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Gauci

Solicitors for the Applicant:

Hunt & Hunt Solicitors

Counsel for the Respondent:

In person

ORDERS

That the assessment issued on 23 February 2015 for the Child Support period from 1 July 2014 to 31 March 2015 be reduced to nil.
The injunction against the husband from dealing with his property made 2 February 2016 continue until such time as the husband pays any debt still owing pursuant to this decision to the Agency.
The Registrar have leave to re-list the issue of enforcing any debt against the husband by giving 14 days’ notice of their intention to relist by approaching my Associate in chambers.
Upon the husband providing satisfactory proof of payment of the debt the injunction made 2 February 2016 be discharged with such application for discharge to be dealt with in chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 8415 of 2015

CHILD SUPPORT REGISTRAR

Applicant

And

MR MCINTYRE

Respondent

REASONS FOR JUDGMENT

The matter of the Child Support Registrar and Mr McIntyre is an application for enforcement of a child support debt brought by the Child Support Registrar, “the Registrar” by way of an application in a case filed 21 December 2015. The liable parent is Mr McIntyre.
The debt as at 11 July 2017 was $10,575.82 being arrears of $8,583.52 and penalties of $1,992.30.
Mr McIntyre was directed to file documents in answer to the application by 4 March 2016 and the matter was adjourned to 24 May 2016.
Documents in response were not filed by him until 20 May 2016. On 20 May 2016 the matter was fixed for hearing being the enforcement application and Mr McIntyre’s putative application for leave to make a departure application under sections 112 and 111 of the Child Support (Assessment) Act 1989[1].
[1] Child Support (Assessment) Act 1989, ss 111 and 112.
He was to file his application for leave within 60 days of 20 May 2016.
Mr McIntyre filed his application for leave on 28 June 2016 and the matter was fixed for hearing on 6 December 2016.
The matter could not proceed in December 2016 and was ultimately listed for hearing on both applications on 7 July 2017.

The Short Facts

Mr McIntyre and his former wife have two children,…

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 2384
Decision Date: 3 October 2017

CaseChat Overview and Summary

In the matter of the Child Support Registrar and McIntyre, heard before Judge Henderson, the dispute concerned an assessment of child support for the period of 1 July 2014 to 31 March 2015. The court was tasked with determining the validity and quantum of this assessment.

The central legal issue before the court was whether the child support assessment issued by the Registrar was appropriate and, if not, what adjustments should be made. This involved considering the evidence presented regarding the parties' financial circumstances and the application of the relevant child support legislation.

Judge Henderson reasoned that the assessment should be reduced to nil, indicating a finding that no child support was payable for the specified period. The court also ordered that an existing injunction preventing the husband from dealing with his property should continue until any outstanding debt was paid. The Registrar was granted leave to relist the issue of enforcing any debt, and the injunction would be discharged upon satisfactory proof of payment.

Orders

Orders of the court

That the assessment issued on 23 February 2015 for the Child Support period from 1 July 2014 to 31 March 2015 be reduced to nil.

The injunction against the husband from dealing with his property made 2 February 2016 continue until such time as the husband pays any debt still owing pursuant to this decision to the Agency.

The Registrar have leave to re-list the issue of enforcing any debt against the husband by giving 14 days’ notice of their intention to relist by approaching my Associate in chambers.

Upon the husband providing satisfactory proof of payment of the debt the injunction made 2 February 2016 be discharged with such application for discharge to be dealt with in chambers.

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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