Child Support Registrar & Kanavos - [2010] FamCAFC 244

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.

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Details

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

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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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