Child Support Registrar & McFarlane & Anor

[2017] FamCAFC 135

FAMILY COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & MCFARLANE AND ANOR [2017] FamCAFC 135

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Leave to appeal as a non-party – Where the Child Support Registrar seeks leave to appeal as a non-party affected by orders made by the primary judge pursuant to s 107A of the Child Support (Registration and Collection) Act 1988 (Cth) – Application allowed.

FAMILY LAW – APPEAL – CHILD SUPPORT – Departure order – Where the primary judge ordered a permanent stay of the payment and collection of child support – Where the power conferred by s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) does not extend to granting a permanent stay – Appeal allowed – Child support departure order made in lieu of the order granting the stay.

Child Support (Assessment) Act 1989 (Cth) s 117
Child Support (Registration and Collection) Act 1988 (Cth) ss 107A, 111C

APPELLANT: Child Support Registrar

FIRST RESPONDENT: Mr McFarlane

SECOND RESPONDENT: Ms McFarlane

FILE NUMBER: SYC 6849 of 2016

APPEAL NUMBER: EA 43 of 2017

DATE DELIVERED: 21 June 2017

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 21 June 2017

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT ORDERS MADE: 4 April 2017

LOWER COURT MNC: [2017] FCCA 994

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Rayment solicitor of Mills Oakley Lawyers

SOLICITOR FOR THE APPELLANT: Mills Oakley Lawyers

THE FIRST RESPONDENT: Appearance mentioned by the solicitor for the appellant

SOLICITOR FOR THE FIRST RESPONDENT: Shore Stack Lawyers

THE SECOND RESPONDENT: Appearance mentioned by the solicitor for the appellant

By consent it is ordered:

1. Leave is granted to the Child Support Registrar pursuant to s107A of the Child Support (Registration and Collection) Act1988 (Cth) to file a notice of appeal as a non-party.

2. The appeal be allowed.

3. The orders made by Judge Henderson on 4 April 2017 be set aside and in lieu thereof there be the following order:

   (a)The child support payable by the First Respondent to the Second Respondent up until 23 July 2015 be set at the amount stood as paid by the First Respondent as at 4 April 2017.

Notation:

(A)The Child Support Registrar will file at the Eastern Regional Appeal Registry the original copy of the consent orders bearing the signatures of all of the parties as soon as the document becomes available to the Child Support Registrar.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Child Support Registrar & McFarlane and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number:  EA 43 of 2017
File Number:  SYC 6849 of 2016

Child Support Registrar

Appellant

And

Mr McFarlane

First Respondent

And

Ms McFarlane

Second Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 2 May 2017 the Child Support Registrar seeks leave under s 107A of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration and Collection Act”) to appeal against orders of Judge Henderson made on 4 April 2017.

2. That leave is not opposed by the two respondents to the appeal, Mr McFarlane (“the father”) and Ms McFarlane (“the mother”). Indeed, the appeal has been settled and I am asked by all three parties to make some consent orders disposing of the appeal.

3. The matter arose before the primary judge in the following way.  The father lodged a tax return for the 2011 financial year, during which he had sold property.  He incurred an obligation to pay capital gains tax.  His income was inflated by the capital gain, thus leading to an increased assessment of child support. 

4. The father did not file tax returns for the next few years, so the Child Support Registrar quite properly continued to assess his obligation to pay child support on the basis of the 2011 tax returns, which of course had the one‑off capital gain contained within them.  Thus, the father was assessed to pay child support in excess of what he should have been assessed had he filed tax returns as required. 

5. The father, however, did pay child support and he paid child support in a greater amount than he would have been assessed to pay had he filed his tax returns in the years subsequent to 2011.  Accordingly, his application before the primary judge was that the Court make a child support departure order to reflect the child support that he in fact had paid.  He did not seek a reduction but simply wished to be relieved of the obligations to pay child support in excess of what he had paid because of the one-off capital gain.

6. The primary judge accepted that to be the position and considered that it was appropriate to make an order in the father’s favour. However, her Honour was concerned that in making any order for the father’s benefit she did not inadvertently trigger a liability in the mother.  Accordingly, her Honour made orders granting a permanent stay of the collection of child support and enjoining the Child Support Registrar from collecting any child support, including any amount in arrears in late payments from 2011 to the date of the orders. 

7. The Child Support Registrar was not a party to those proceedings. 

8. The difficulty with the order made by her Honour is that the power to grant a stay given by s 111C of the Registration and Collection Act does not extend to a permanent stay of the kind ordered by the primary judge. Further, it would appear that the Child Support Registrar was not given notice of the proposed orders contained within the application before the primary judge and was not afforded the opportunity to make any submissions as to whether or not the orders ought to be made.

9. The orders each of the parties seek that I make today are that the necessary leave be granted to the Child Support Registrar and that the appeal be allowed and the orders made on 4 April 2017 be set aside.  The parties have also agreed upon a replacement order which I am informed by the lawyer for the Child Support Registrar will have the effect that there will be no inadvertent liability triggered in the mother.

10. It is necessary for me to determine whether the orders now sought by the parties to replace the order made by Judge Henderson are just and equitable and otherwise proper within the meaning of s 117 of the Child Support (Assessment) Act 1989 (Cth). For the reasons I have outlined I am satisfied that they are.

11. The orders I have been provided with have the original signature of the solicitor for the Child Support Registrar but are a scanned copy which contain scanned signatures of the other two parties.  When the original bearing all signatures is available it should be filed. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 21 June 2017.

Legal associate: 

Date:  18 July 2017