Crowther and Marchant and Ors - [2016] FCCA 3030

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROWTHER & MARCHANT & ORS

[2016] FCCA 3030

Catchwords:
CHILD SUPPORT – Appeal against making of departure prohibition order – jurisdiction to make administrative orders – was there a child support liability – whether delegate satisfied as to statutory criteria at time of decision – whether delegate held requisite belief at time of decision - whether reasonable grounds for delegate to be satisfied and to hold requisite belief at time of decision.

COURTS AND JUDGES – Jurisdiction – whether jurisdiction to make administrative orders on an appeal against making of departure prohibition order.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.64AF, 64AH, 98B, 98S, 111, 116
Child Support (Registration and Collection) Act 1988 (Cth), ss.15(1), 17, 67, 68, 72D, 72E, 72I, 72Q, 72R, 72S, 120

Cases cited:

Albaugh & Child Support Registrar [2007] FMCAfam 1106
Edelsten v Federal Commissioner of Taxation (1989) 20 ATR 238; (1989) 85 ALR 226; (1989) 89 ATC 4120
Jones v Child Support Registrar [2007] FCA 1732
Onder & Child Support Registrar & Sari [2011] FMCAfam 430; (2011) 250 FLR 345; (2011) 45 Fam LR 577
T v Commissioner of Taxation (Cth) (1986) 18 ATR 1; (1986) 86 ATC 4894
Russo & Child Support Registrar [2009] FMCAfam 437
Whittaker & Anor v Child Support Registrar & Anor [2010] FCA 43; (2010) 264 ALR 473; (2010) FLC 98-049
Williams v Child Support Registrar [2009] FMCA 481; (2009) 109 ALD 343

Applicant:

MR CROWTHER

First Respondent:

MS MARCHANT

Second Respondent:

Third Respondent:

MS TICKNER

CHILD SUPPORT REGISTRAR

File Number:

PEG 59 of 2014

Judgment of:

Judge Lucev

Hearing date:

19 May 2014

Date of Last Submission:

19 May 2014

Delivered at:

Perth

Delivered on:

25 November 2016

REPRESENTATION

For the Applicant:	In person
For the First Respondent:	No appearance
For the Second Respondent:	No appearance
Counsel for the Third Respondent: Solicitors for the Third Respondent:	Ms A Ladhams Australian Government Solicitor

ORDERS

That the applicant’s Notice of Appeal (Child Support) filed on 26 February 2014 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Crowther & Marchant & Ors is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PERTH

PEG 59 of 2014

MR CROWTHER

Applicant

And

MS MARCHANT

First Respondent

MS TICKNER

Second Respondent

CHILD SUPPORT REGISTRAR
Third Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal (Child Support) filed on 26 February 2014 (“Notice of Appeal” and “Appeal” respectively), the applicant Mr Crowther, (“Mr Crowther”) appeals against a decision of the third respondent (“Decision”), the Child Support Registrar (“Registrar”) made on 7 August 2013, under s.72D of the Child Support (Registration & Collection) Act 1988 (Cth) (“Registration & Collection Act”) to issue a departure prohibition order (“DPO”) to prevent Mr Crowther from travelling outside of Australia.
The Appeal is made under s.72Q of the Registration & Collection Act, which allows a person aggrieved by the making of a DPO…

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] FCCA 3030
Decision Date: 25 November 2016

CaseChat Overview and Summary

The applicant, Crowther, appealed to the Federal Circuit Court against the making of a departure prohibition order by a delegate of the Registrar of the Child Support Agency. The central dispute concerned whether the delegate had the necessary jurisdiction and had satisfied the statutory criteria when making the order, specifically regarding the existence of a child support liability and the delegate's requisite belief and reasonable grounds for that belief at the time of the decision.

The court was required to determine several key legal issues. Firstly, it had to consider whether the delegate possessed the jurisdiction to make administrative orders in the context of an appeal against a departure prohibition order. Secondly, the court needed to ascertain whether a child support liability, as contemplated by the relevant legislation, actually existed. Finally, the court had to assess whether the delegate was satisfied as to the statutory criteria and held the requisite belief, and whether there were reasonable grounds for such satisfaction and belief, at the time the departure prohibition order was made.

Judge Lucev dismissed the applicant's appeal. The reasoning focused on the delegate's satisfaction of the statutory requirements for making a departure prohibition order. The court found that the delegate had sufficient grounds to be satisfied that a child support liability existed and that the applicant had failed to make payments in accordance with the child support assessment. Consequently, the delegate's decision to make the departure prohibition order was upheld.

Orders

Orders of the court

That the applicant’s Notice of Appeal (Child Support) filed on 26 February 2014 be dismissed.

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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