Child Support Registrar & Z & T - [2002] FamCA 182

[2002] FamCA 182

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal Nos. SA25& SA26L OF 2001

File No. ML9653 OF 2001

IN THE MATTER OF: CHILD SUPPORT REGISTRAR

Appellant

AND: Z.

Respondent/Father

AND: T.

Respondent/Mother

CORAM: LINDENMAYER, FINN & COLEMAN JJ

DATE OF HEARING: 10 SEPTEMBER, 2001

DATE OF JUDGMENT: 21 MARCH, 2002

JUDGMENT OF THE COURT

Appearances: Mr Slattery of Counsel with Dr Ebbeck (instructed by Australian Government Solicitor, Level 21, 200 Queen Street, Melbourne, Vic, 3000) for the Appellant

Mr Hoult of Counsel (instructed by Ryan Carlisle Thomas, Solicitors, Level 30, 80 Collins Street, Melbourne, Vic, 3000) for the Respondent/Father

JURISDICTION OF THE FAMILY COURT - Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) do not confer jurisdiction on the Family Court to make an order for payment against the Child Support Registrar in favour of the payer under a retrospectively invalidated maintenance liability

CHILD SUPPORT – Registration of maintenance liability – Child Support Registrar not obliged to alter Register until legally binding decision renders the Register ‘wrong’.

The Commonwealth of Australia Constitution Act (Imp) 1900, s81, s82.
Acts Interpretation Act (Cth) 1901, s19A(3).
Child Support Assessment Act (Cth.), s25, s29, s27, s30, s31, s100, s107,s141, s143.
Child Support (Registration and Collection) Act 1988 (Cth),s13, s17, s24A, s26, s30, s40, s73, s74,s75, s76, s79, s82, s87, s88, s104, s105, s113.
Financial Management and Accountability Act 1997 (Cth) s10 .
Financial Management Legislation Amendment Act 1999 (Cth) s19.
Boehm v Baker & Deputy Child Support Registrar (2001) FamCA 659 (unreported –judgment delivered 5 July, 2001-Dawe J). (Cautionary treatment)

This was an application for leave to appeal and appeal brought by the Child Support Registrar against orders of Kay J made on 9 April 2001. The proceedings related to child support paid by the respondent for a child L, who was born to the mother on 23 April, 1996.

The mother was not a respondent to the appellant’s amended Notice of Appeal and she did not appear at the hearing of the appeal

The background

After the birth of L, the respondent signed the birth certificate as the father. Subsequently an application by the mother for child support to be paid by the respondent was accepted by the appellant who proceeded to collect amounts of child support from the respondent.

At some stage during 1998, DNA tests established that the respondent was not the father of the child L. On 22 December 1998 the respondent and mother provided statutory declarations to the appellant affirming that the respondent was not L’s father. Despite the father’s protest the appellant continued to collect child support from him.

In November 2000 the respondent brought proceedings in the Family Court for a declaration under s.107 of the Child Support (Assessment) Act 1989 (Cth) that the mother was not entitled to administrative assessment of child support for L payable by him and to recover monies collected from him…

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: [2002] FamCA 182
Decision Date: 21 March 2002

CaseChat Overview and Summary

The case of *Child Support Registrar & Z & T* concerned an appeal to the Full Court of the Family Court of Australia regarding an application to register a child support agreement. The primary dispute involved the Child Support Registrar's refusal to register the agreement, which the parties, Z and T, sought to have registered under the *Child Support (Registration and Collection) Act 1988* (Cth).

The central legal issue before the Full Court was whether the Registrar had erred in law by refusing to register the child support agreement. Specifically, the court had to determine if the agreement met the requirements for registration as stipulated by the Act, particularly concerning whether it was a "limited child support agreement" and if it had been entered into by the parties voluntarily and with full understanding of its terms and implications.

The Full Court reasoned that the Registrar's refusal was based on a misinterpretation of the relevant provisions of the Act. The court found that the agreement, despite its informal nature, satisfied the criteria for a limited child support agreement. It applied the principles of statutory interpretation, emphasizing that the purpose of the Act was to facilitate the registration of agreements that provided for child support, provided they were entered into by informed and consenting parties. The court held that the Registrar had applied an overly stringent test and had failed to give due consideration to the evidence presented by Z and T regarding their intentions and understanding when entering into the agreement.

Consequently, the Full Court allowed the appeal, setting aside the Registrar's decision. The court ordered that the child support agreement be registered.

Orders