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Child Support Registrar & Kanavos

Child Support Registrar & Kanavos

Case [2010] FamCAFC 244 10 December 2010

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FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & KANAVOS AND ORS

[2010] FamCAFC 244

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – Application for leave to appeal under s 107A of the Child Support (Registration and Collection) Act 1988 (Cth) – Where applicant has established error of principle by Federal Magistrate – Application granted.

FAMILY LAW - APPEAL – COSTS – SECTION 117AB – Mandatory order for costs – Whether the Federal Magistrate erred in failing to consider and apply s117AB of the Family Law Act 1975 (Cth) – Consideration of the meaning of “knowingly” – Consideration of Sharma & Sharma (No 2) [2007] FamCA 425 – Where the Federal Magistrate found that the father knowingly made false statements to the Court regarding his financial position – Where in such circumstances the application of s 117AB is mandatory – Appealable error established.

FAMILY LAW - APPEAL – COSTS OF APPEAL – Father wholly unsuccessful – Father to pay the Registrar’s costs of and incidental to the appeal.

Acts Interpretation Act 1901(Cth) s 15AB
Child Support (Registration and Collection) Act 1988 (Cth) ss 104(1), 107A, 113
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 117, 117AB
Federal Magistrates Act 1999 (Cth) s 79(1)
Federal Magistrates Court Rules 2001(Cth)
Family Law Rules 1984 (Cth)

Browne v Green (2002) FLC 93- 115
Charles & Charles [2007] FamCA 276
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641
Magill v Magill (2006) 231 ALR 27
Penfold v Penfold (1980) 144 CLR 311
Ran & Car [2006] FamCA 73
Robinson & Higginbotham (1991) FLC 92-209
Sharma & Sharma (No 2) [2007] FamCA 425
Sleight v Stevenson [1943] 4 DLR 433
Wild v Ballard (1997) FLC 92-771

APPELLANT:

Child Support Registrar

1ST RESPONDENT:

Mr Kanavos

2ND RESPONDENT:

Ms Kanavos

3RD RESPONDENT:

W Pty Ltd

FILE NUMBER:

SYC

3565

2007

APPEAL NUMBER:

154

2009

DATE DELIVERED:

10 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

10 August 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

25 November 2009

LOWER COURT MNC:

[2009] FMCAfam 1476

REPRESENTATION

SOLICITOR-ADVOCATE FOR THE APPELLANT:

Mr Markus

SOLICITOR FOR THE APPELLANT:

Australian Government Solicitor

SOLICITOR -ADVOCATE FOR THE 1^ST, 2^ND & 3^RD RESPONDENTS:

Mr Chegwidden

SOLICITOR FOR THE 1ST , 2^ND & 3^RD RESPONDENTS:

Graham Chegwidden

Orders

The application for leave to appeal is granted.
The appeal is allowed.
The orders made by Federal Magistrate Altobelli on 25 November 2009 be set aside.
The application by the Child Support Registrar for costs is remitted for rehearing in the Federal Magistrates Court before Federal Magistrate Altobelli.
The father pay to the Child Support Registrar the costs of the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Court Rules 2004 (Cth).

IT IS NOTED that publication of this judgment under the pseudonym Child Support Registrar & Kanavos and Ors is approved…

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.

Continue reading Child Support Registrar & Kanavos

Details

AGLC: Child Support Registrar & Kanavos [2010] FamCAFC 244
Case: [2010] FamCAFC 244
Decision Date: 10 December 2010

CaseChat Overview and Summary

In the Family Court of Australia, the Child Support Registrar, acting under the Child Support (Registration and Collection) Act 1988 (Cth), sought leave to appeal against a decision of the Federal Magistrates Court, where the Registrar had been unsuccessful in their application for costs. The matter before the Family Court involved the Registrar’s application for costs against the father, who had been found to have knowingly provided false information to the Court regarding his financial circumstances. The father contested the application for costs and, subsequently, the Registrar’s application for leave to appeal the Federal Magistrates Court’s decision.

The legal issues for determination by the Family Court included whether the Registrar had established an error of principle justifying leave to appeal, and whether the Federal Magistrate had erred in failing to consider and apply s 117AB of the Family Law Act 1975 (Cth) in ordering costs. The court needed to clarify the meaning of "knowingly" in the context of s 117AB and to assess if the Registrar’s application for costs was subject to mandatory application under this section. The court also needed to decide whether the father’s unsuccessful appeal warranted an order for the Registrar’s costs of the appeal.

The Family Court held that the Registrar had demonstrated an error of principle by the Federal Magistrate, which warranted granting leave to appeal. The Court found that the Federal Magistrate had indeed erred in not considering and applying s 117AB of the Family Law Act, as the father knowingly made false statements to the Court. Given the clear findings of knowing misrepresentation, the application of s 117AB was deemed mandatory. The Court granted leave to appeal and allowed the appeal, setting aside the orders made by the Federal Magistrate. The Registrar’s application for costs was remitted for rehearing before the Federal Magistrates Court. The father was ordered to pay the Registrar’s costs of the appeal as agreed or assessed under Chapter 19 of the Family Court Rules 2004 (Cth).

Orders

Orders of the court

The application for leave to appeal is granted.

The appeal is allowed.

The orders made by Federal Magistrate Altobelli on 25 November 2009 be set aside.

The application by the Child Support Registrar for costs is remitted for rehearing in the Federal Magistrates Court before Federal Magistrate Altobelli.

The father pay to the Child Support Registrar the costs of the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Court Rules 2004 (Cth).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Child Support Registrar & Kanavos [2010] FamCAFC 244

Most Recent Citation

Child Support Registrar and Kanavos and Ors [2011] FMCAfam 625

Cases citing this decision · 9 of 9 shown

CHILD SUPPORT REGISTRAR & BANCROFT
[2016] FCCA 2053

…Cases cited: Child Support Registrar & Kanavos (2011) 44 Fam LR 422; [2010] FamCAFC 244 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123; [2005] FamCA 158 Hendy v Deputy Child Support Registrar (2001) 164 FLR 236; 27 Fam LR 641; [2001] FamCA 632 Laurie &…
CHILD SUPPORT REGISTRAR & BANCROFT
[2015] FCCA 3616

…Cases cited: Child Support Registrar & Kanavos (2011) 44 Fam LR 422; [2010] FamCAFC 244 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123; [2005] FamCA 158 Hendy v Deputy Child Support Registrar (2001) 164 FLR 236; 27 Fam LR 641; [2001] FamCA 632 Laurie &…
Ahern and Ahern and Anor (SSAT Appeal)
[2013] FCCA 1072 Para 9

…g to prevent one or other from being the sole foundation of a costs order ( Fitzgerald & Fish[14] ; Brown & Brown[15] ). [12] (1980) 144 CLR 311 [13] [2010] FamCAFC 244; (2011) 44 Fam LR 422 [14] [2005] FamCA 158; (2005) 33 Fam LR 123 [15] (1998) 23 Fam LR 349…
Penman and Child Support Registrar and Anor (SSAT Appeal) (No.2)
[2013] FCCA 1045 Para 2

…y the making of a costs order against that party ( Laurie & Child Support Registrar[7] at [123]-[126] per O’Ryan J). [3] (1980) 114 CLR 311 [4] [2010] FamCAFC 244;(2011) 44 Fam LR 422 [5] [2005] FamCA 158; (2005) 33 Fam LR 123 [6] (1998) 23 Fam LR 349 [7] [2009] FamCAFC 183…
Hackshaw & Hackshaw (Costs)
[2011] FamCA 570 Para 1

…is was cited with approval by Boland J (sitting as a single judge on appeal from a Federal Magistrate) in Child Support Registrar & Kanavos and Ors [2010] FamCAFC 244, above as was the decision of Ryan J in Sharma & Sharma (No. 2) [2007] FamCA 425. Boland J said in Kanavos: 83. At paragraph 13 of her reasons, Ryan J…
Winter and Winter
[2011] FamCA 702 Para 9

…In relation to the word “knowingly” in s 117AB(1)(b), the Full Court in Child Support Registrar & Kanavos [2010] FamCAFC 244 , after examination of Charles & Charles [2007] FamCA 27 at [24] per Cronin J and Sharma & Sharma (No 2) [2007] FamCA 425 at [13] per Ryan J, held in essence that for a statement to be made “kn…
Child Support Registrar and Kanavos and Ors
[2011] FMCAfam 625 Para 1

…the appeal by the Child Support Registrar against the costs judgment. The Full Court decision is reported as Child Support Registrar & Kanavos & Anor [2010] FamCAFC 244. As a result of the Full Court appeal the matter was remitted to me for re-hearing.…
SOMERS & SOMERS
[2011] FamCA 103 Para 11

…In Abbott and Langton (Costs) [2011] FamCA 26 at para 80 and in Child Support Registrar and Kanavos and Ors [2010] FamCAFC 244 Boland J made reference to my decision in Charles and Charles without criticism. In those decisions, Boland J went on to refer to the decision of Ryan J in Sharma and Sharma (No 2) [2007] Fam…
Abbott and Langton (Costs)
[2011] FamCA 26 Para 4

…t 2006 (Cth). The effect of the provision was discussed by me exercising the appellate jurisdiction of the Court in Child Support Registrar & Kanavos [2010] FamCAFC 244 at, inter alia , paragraphs 68-71 and 78-84 as follows: 68.Section 117AB was inserted into the Act in 2006 and commenced operation on 1 July 2006. 69…

View all 9 citing cases →

Cases cited in this decision · 11 of 11 shown

Child Support Registrar and Kanavos and Ors
[2009] FMCAfam 871 Para 4

…a number of adverse findings as to the credit of the First Respondent […] and has rejected his evidence in relation to financial matters ([2009] FMCAfam 871 at [45]) holding that: 4.1the evidence lacked credibility and was inconsistent with documentary evidence (at [45](1)); 4.2he masqueraded as a mere employee of th…
Charles & Charles
[2007] FamCA 276 Para 8

…I was referred to the decision of Cronin J in Charles & Charles [2007] FamCA 276.At paragraphs 22 and 23, his Honour explained that s 117(1) must be read as subject to s 117AB. I concur with that view.…
Sharma & Sharma (No 2)
[2007] FamCA 425 Para 2

…I was also referred to the decision of Ryan J in Sharma & Sharma (No 2) [2007] FamCA 425 where her Honour considered, among other matters, whether the new provision, which was introduced as part of the suite of reforms in the Family Law Amendment (Shared Parental Responsibility) Act 2006, amended the otherwise disc…
Magill v Magill
[2006] HCA 51 Para 1

…” in civil proceedings with particular reference to that word in relation to the tort of deceit as discussed by the High Court in Magill v Magill (2006) 231 ALR 27. His Honour also referred to the Revised Explanatory Memorandum, which I have earlier set out and parts of the Attorney-General’s second reading speech.…
RAN & CAR
[2006] FamCA 73

…amCA 276 Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641 Magill v Magill (2006) 231 ALR 27 Penfold v Penfold (1980) 144 CLR 311 Ran & Car [2006] FamCA 73 Robinson & Higginbotham (1991) FLC 92-209 Sharma & Sharma (No 2) [2007] FamCA 425 Sleight v Stevenson [1943] 4 DLR 433 Wild v Ballard (1997) FLC 92-7…
Browne v Green
[2002] FamCA 791 Para 6

…The “broad brush” approach to the question of costs is well recognised (see Browne v Green (2002) FLC 93- 115) and although an appellate court will be reluctant to interfere with an costs order (or failure to make a costs order) under s 117 of the Act, it will do so if the discretion was exercised on wrong principles or…
Hendy v Deputy Child Support Registrar
[2001] FamCA 632 Para 1

…istrar has established error of principle by his Honour. In accordance with established authority (see Wild v Ballard (1997) FLC 92-771, at 84,488; Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641) leave should be granted, and the appeal allowed.…
Penfold v Penfold
[1980] HCA 4 Para 5

…r to the general principles which govern the broad discretion to award costs under s 117. Those principles are clearly explained in Penfold v Penfold (1980) 144 CLR 311 as follows: It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-s…
Voges v Monaghan
[1954] HCA 63 Para 7

…At paragraph 42, his Honour referred to the decision of the High Court in Voges v Monaghan (1954) 94 CLR 231 where Fullagar and Kitto JJ cited a passage from French v French (1902) 1 IR 172 as to the nature of secret trusts.…
[2009] FMCAFAM 1476
[2009] FMCAFAM 1476

…[2009] FMCAfam 1476…
[1943] 4 DLR 433
[1943] 4 DLR 433 Para 4

…st be read in the context of the statute under discussion, I think the discussion of the meaning of the word by Kellock JA in Sleight v Stevenson [1943] 4 DLR 433 at 441 is helpful in the facts relevant to this appeal. In dealing with a case under a statute pertaining to insurance, his Honour said “I think ‘knowing…

Legislation cited in this decision · 10

Child Support (Registration and Collection) Act 1988 (Cth)
104(1), 107A, 113 7 mentions (from Para 5)
Family Law Act 1975 (Cth)
117, 117AB 3 mentions
Federal Magistrates Act 1999 (Cth)
79(1) 3 mentions (from Para 2)
Acts Interpretation Act 1901 (Cth)
15AB 2 mentions (from Para 9)
Evidence Act 1995 (Cth)
140 2 mentions (from Para 9)
Family Court Rules 2004 (Cth)
1 mention (from Para 5)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
1 mention (from Para 2)
Family Law Rules 1984 (Cth)
1 mention (from Para 4)
Federal Magistrates Court Rules 2001 (Cth)
1 mention (from Para 3)
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 1)