CURRAN & ROPER - [2011] FMCAfam 859

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CURRAN & ROPER

[2011] FMCAfam 859

CHILD SUPPORT – Whether child support agreement “limited” or “binding” – whether “exceptional circumstances” – whether “significant change in circumstances” – “exceptional circumstances” defined.

Child Support (Assessment) Act 1989, ss.3, 80C, 80E, 98U, 136
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006, item 74 sch.5
Health Insurance Act 1973 (Cth), s.106KA(5)
Health Insurance (Professional Services Review) Regulations1999, reg.11
Federal Magistrates Act 1999, s.14
Federal Magistrates Court Rules 2001, r.16.01

Appleton & Appleton [2011] FamCA 70
Balzano & Balzano [2010] FamCAFC 11
Cogswell & Calvery [2010] FMCAfam 172
Daley & Daley [2009] FMCAfam 398
Hatcher v Cohn [2004] FCA 1548
In the Marriage of Gyselman (1992) FLC 92-279
Leonard & Leonard [2010] FMCAfam 390
Sandrk & Sandrk (1991) FLC 92-260
Savery & Savery (1990) FLC 92-131
Simpson & Hamlin (1984) FLC 91-576
United Mexican States v Cabal (2001) 209 CLR 165

Applicant:

MR CURRAN

Respondent:

MS ROPER

File Number:

MLC 13635 of 2007

Judgment of:

F. Turner FM

Hearing date:

5 August 2011

Date of Last Submission:

5 August 2011

Delivered at:

Melbourne

Delivered on:

25 August 2011

REPRESENTATION

Counsel for the Applicant:

Mr Strum

Solicitors for the Applicant:

Tolhurst Druce & Emmerson

Counsel for the Respondent:

Ms Buchanan

Solicitors for the Respondent:

Michael Smith & Associates

ORDERS

The Child Support Agreement entered into by the parties on 27 June 2005 is not a binding child support agreement.

THE COURT DIRECTS THAT:

The parties submissions on 16 September 2011 are to include submissions on s.80E(1)(d)(ii) and s.98U of the Child Support (Assessment) Act 1989, insofar as they are relevant as to whether the child support agreement is a “limited child support agreement” within the Act, or is not an agreement covered by the Act.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 13635 of 2007

MR CURRAN

Applicant

And

MS ROPER

Respondent

REASONS FOR JUDGMENT

The parties in this matter entered into a child support agreement

(a “SA”) on 27 June 2005 (Annexure “D” to the affidavit of the husband sworn 7 July 2011) in relation to their two children. The SA was registered with the Child Support Agency (the “CSA”) on

22 August 2005 (Ibid Annexure “E”).
The children are [X] (born [in] 1992), and [Y] (born [in] 1995).
The issues covered by this decision are first, whether the SA is a “limited” or a “binding” child support agreement? and secondly, whether developments since that time are “a significant change in” or “exceptional circumstances” within s.136 of the Child Support (Assessment) Act 1989 (the “CSA Act”).
Mr Strum appeared for the husband and Ms Buchanan for the wife.

Mr Strum stated that the application relates to [Y] only (Transcript “T” 5 August 2011…

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

AGLC: CURRAN & ROPER [2011] FMCAfam 859
Case: [2011] FMCAfam 859
Decision Date: 25 August 2011

CaseChat Overview and Summary

In this case, the parties were involved in a dispute concerning the validity of a Child Support Agreement (CSA) that was entered into on 27 June 2005. The agreement was later accepted by the Regional Registrar of the Child Support Agency on 22 August 2005. The court was required to determine whether the CSA met the criteria of a “limited child support agreement” under the Child Support (Assessment) Act 1989, and whether it was properly accepted by the Registrar. Additionally, the court had to consider whether the CSA was binding or if it fell outside the scope of the Act.

The court examined the statutory requirements for a “limited child support agreement” as outlined in section 80E(1)(d) of the Act, including the necessity for the agreement to be in writing, signed by each party, and for the amount to be equal to or greater than the administratively assessed child support. Furthermore, the court noted that an alternative criteria for acceptance is provided in section 80E(1)(d)(ii) of the Act, which states that the agreement can be a “limited child support agreement” if it has been accepted by the Registrar under section 98U. The court considered the provisions of section 98U, which requires the Registrar to accept an agreement if satisfied it is a child support agreement and would be just and equitable. The court also looked at sections 14 and 16.01 of the Federal Magistrates Act 1999 and Federal Magistrates Court Rules 2001, which provide for the determination of matters before the court.

Upon review, the court determined that the parties had not referred to section 98U in their submissions, and that the agreement may meet the requirements for a “limited child support agreement.” Instead of reaching a conclusion on the material before it, the court directed the parties to make further submissions on 16 September 2011, regarding sections 80E(1)(d)(ii) and 98U of the Child Support (Assessment) Act 1989. This was to allow the court to determine if the CSA was a “limited child support agreement” within the Act, or not an agreement covered by the Act.

The court ordered that the Child Support Agreement entered into by the parties on 27 June 2005 was not a binding child support agreement. Furthermore, the court directed that the parties’ submissions on 16 September 2011 include submissions on sections 80E(1)(d)(ii) and 98U of the Child Support (Assessment) Act 1989, to the extent that they were relevant in determining whether the CSA was a “limited child support agreement” within the Act or not an agreement covered by the Act.

Orders

Orders of the court

The Child Support Agreement entered into by the parties on 27 June 2005 is not a binding child support agreement.

THE COURT DIRECTS THAT:

The parties submissions on 16 September 2011 are to include submissions on s.80E(1)(d)(ii) and s.98U of the Child Support (Assessment) Act 1989, insofar as they are relevant as to whether the child support agreement is a “limited child support agreement” within the Act, or is not an agreement covered by the Act.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Mr Strum referred to [74] of Daley which outlines the requirements for a ‘limited child support agreement” as follows:·As previously indicated, (they) do not require the provision of legal advice; ·(They) must be for an amount which is either equal to or greater than the amount of child support administratively assessed; [s.80E(1)(d)(i)]·(They) must be in writing and signed by each party to it [s.80E(1)(a)].The Court notes the provision in s.80E(1)(d)(ii) that as an alternative criteria to the existence of an administrative assessment of child support, the agreement can be a “limited child support agreement” if “it has been accepted by the Registrar under s.98U”.Section 98U provides:Decision on child support agreement (1)Subject to subsection (2), if the Registrar is satisfied that an agreement entered into by the parties to proceedings is a child support agreement, the Registrar must accept the agreement. (1A) In working out whether an agreement is a limited child support agreement for the purposes of subsection (1), disregard: (a)paragraph 80E(1)(d); and (b)subsections 80E(2) to (5). (2)For an agreement (other than a binding child support agreement), the Registrar must not accept the agreement unless he or she is also satisfied that it would be just and equitable, as regards the child, the liable parent and the carer entitled to child support, to accept the agreement. (3)Subsections 117(4) to (9) (inclusive) apply to the Registrar in the exercise of his or her functions under subsection (2) as if: (a)any reference in those subsections to the court were a reference to the Registrar; and (b)any reference to the making of a particular order under Division 4 of Part 7 were a reference to the acceptance of an agreement. (4)If the Registrar accepts the agreement: (a)whichever of sections 34B and 93 is appropriate applies; and (aa)sections 95 and 96 apply; and (a)the Registrar may not make a determination under this Part in relation to the proceedings. (5)If the Registrar is not satisfied as required by subsections (1) and (2), the Registrar must refuse to accept the agreement. (6)If the Registrar refuses to accept the agreement: (a)section 96 applies; and (b)the Registrar must proceed to make a determination under this Part. The SA was accepted by the Regional Registrar of the Child Support Agency on 22 August 2005 (Annexure “E” to the affidavit of the husband sworn 7 July 2011). It may be that the requirements for a “limited” child support agreement were met. The Court notes that the parties did not refer to s.98U in their submissions. The provisions of s.14 of the Federal Magistrates Act 1999 and r.16.01 of the Federal Magistrates Court Rules 2001 are as follows:Section 14 - Determination of matter completely and finallyIn every matter before the Federal Magistrates Court, the Federal Magistrates Court must grant, either:(a)absolutely; or (b)on such terms and conditions as the Federal Magistrates Court thinks just;all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible:(c)all matters in controversy between the parties may be completely and finally determined; and(d)all multiplicity of proceedings concerning any of those matters may be avoided.Rule 16.01 - Court may make any judgment or orderThe Court may, at any stage in a proceeding on the application of a party, give any judgment or make any order even if the claim was not made in an originating process.Instead of the Court reaching a conclusion on the material now before it, the Court directs the parties make submissions on s.80E(1)(d)(ii) and s.98U at the hearing on 16 September 2011, in order for the Court to determine if the SA is a “limited child support agreement” within the CSA Act, or not a SA covered by the Act.

Ratio Decidendi

Legal Principle Established

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