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

FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & HIGGINS AND ANOR

[2016] FamCAFC 2

FAMILY LAW – APPEAL – CHILD SUPPORT – Application for leave to appeal – Application for extension of time – Application to adduce further evidence – Where the Child Support Registrar appeals orders of the Federal Circuit Court discharging the father’s obligation to pay Child Support arrears – Where the mother and child live in New Zealand – Where the Child Support obligation derives from a New Zealand assessment – Where the relevant New Zealand agency paid the mother amounts owing pursuant to the father’s Child Support liability and sought reimbursement – Where the father’s New Zealand child support liability is an “agency reimbursement liability” within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) – Where the orders were based on fundamental errors and misconceptions and made without power – Where leave to appeal granted – Where application for extension of time and application to adduce further evidence granted – Appeal allowed – All orders made by his Honour on 31 January 2013, 21 May 2013 and 29 September 2014 set aside.

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Family Law Regulations 1984 (Cth)

Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance (signed in Canberra, 12 April 2000)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bienstein v Bienstein (2003) FLC 93-124
Bruce F McLaren Holdings Pty Ltd v McLaren (2000) FLC 93-030
Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246
Child Support Registrar v Sisley [2007] FMCAfam 724
Emamy and Marino (1994) FLC 92-487
Licul v Corney (1976) 180 CLR 213

Repatriation Commission v Nation (1995) 57 FCR 25
Rutherford and Rutherford (1991) FLC 92-255
Strauss v Strauss (1998) FLC 92-797

APPELLANT:

Child Support Registrar

FIRSTRESPONDENT:

Mr Higgins

SECOND RESPONDENT:

Ms Turner

FILE NUMBER:

MLC

8649

2012

APPEAL NUMBER:	SOA	75	of	2014
SOA	41	of	2015

DATE DELIVERED:

22 January 2016

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Ainslie-Wallace & Murphy JJ

HEARING DATE:

13 July 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDER DATE:

31 January 2013

21 May 2013
29 September 2014

LOWER COURT JUDGMENT DATE:

29 September 2014

LOWER COURT MNC:

[2014] FCCA 2635

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Wood

SOLICITOR FOR THE APPELLANT:

Australian Government Solicitor

THE FIRST RESPONDENT:

In person

THE SECOND RESPONDENT:

No appearance

Orders

The Application in an Appeal SOA 41 of 2015 for an extension of time filed by the Child Support Registrar on 22 June 2015 be granted.
The Application in an Appeal SOA 75 of 2014 to adduce further evidence filed by the Child Support Registrar on 26 June 2015 be granted.
Leave to Appeal is granted in respect of each of Appeal SOA 75 of 2014 and SOA 41…

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: [2016] FamCAFC 2
Decision Date: 22 January 2016

CaseChat Overview and Summary

The Child Support Registrar sought an extension of time and permission to adduce further evidence in two appeals brought by Higgins and another party. The registrar filed the applications on 22 June 2015 and 26 June 2015, respectively. The appeals pertained to decisions made by Judge Burchardt on 31 January 2013, 21 May 2013, and 29 September 2014. The primary legal issues the court had to decide were whether the registrar was entitled to an extension of time and permission to adduce further evidence, and whether the orders made by Judge Burchardt should be upheld or set aside.

The court considered the registrar's arguments for the extension of time and the admissibility of the new evidence. It was noted that the registrar had a legitimate reason for the delay in filing the applications, and the new evidence could potentially alter the outcome of the appeals. The court found that the registrar had acted diligently and that the new evidence was relevant and material. Consequently, the court granted the registrar's applications for an extension of time and permission to adduce further evidence. Furthermore, the court allowed both appeals, setting aside the orders made by Judge Burchardt.

In the decision, the court outlined the reasoning for allowing the appeals and setting aside the orders. It was determined that Judge Burchardt had erred in his interpretation of certain provisions and had not considered all relevant evidence. The court found that the registrar's interpretation of the law was more accurate, and the new evidence provided by the registrar was compelling. As a result, the orders made by Judge Burchardt were set aside, and the registrar's appeals were allowed.

The court's final orders were that the registrar's applications for an extension of time and permission to adduce further evidence be granted, leave to appeal be granted, both appeals be allowed, the orders made by Judge Burchardt be set aside, and each party bear their own costs of and incidental to each appeal.

Orders

Orders of the court

The Application in an Appeal SOA 41 of 2015 for an extension of time filed by the Child Support Registrar on 22 June 2015 be granted.

The Application in an Appeal SOA 75 of 2014 to adduce further evidence filed by the Child Support Registrar on 26 June 2015 be granted.

Leave to Appeal is granted in respect of each of Appeal SOA 75 of 2014 and SOA 41 of 2015.

Appeal SOA 75 of 2014 be allowed

Appeal SOA 41 of 2015 be allowed.

The orders of Judge Burchardt made on 31 January 2013, 21 May 2013 and 29 September 2014 be all set aside.

Each party shall bear their own costs of and incidental to each appeal.

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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