Cutler and Warwick and Anor - [2016] FamCA 277

FAMILY COURT OF AUSTRALIA

CUTLER & WARWICK AND ANOR

[2016] FamCA 277

FAMILY LAW – CHILD SUPPORT – INTERIM PROCEEDINGS – Application for a stay of the collection of arrears arising from a decision of the Administrative Appeals Tribunal to increase the father’s annual rate of child support – Application for a stay of the collection of any additional child support as a consequence of that decision – Where the father has not filed an appeal against the Tribunal’s decision – Where the parties have competing child support departure applications which are yet to be determined in these proceedings – Consideration of section 111C of the Child Support (Registration and Collection) Act 1988 (Cth) – Where the Court finds it appropriate to only stay the collection of arrears.

Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth) s 111C

Aldridge & Keaton (Stay Appeal) (2009) FamCAFC 106

Yewen & Child Support Registrar and Anor [2014] FCCA 2399

APPLICANT:

Mr Cutler

FIRST RESPONDENT:

Ms Warwick

SECOND RESPONDENT:

Department of Human Services

FILE NUMBER:

SYC

1668

2013

DATE DELIVERED:

7 March 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

7 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

Macpherson & Kelley Lawyers

SOLICITOR FOR THE FIRST

RESPONDENT:

Ms Perla of Diana Perla & Associates

SOLICITOR FOR THE SECOND RESPONDENT:

Ms James

Orders

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Department of Human Services be restrained until further Order from collecting any child support arrears arising from the decision of the Administrative Appeals Tribunal made on 27 October 2015.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1668 of 2013

Mr Cutler

Applicant

And

Ms Warwick

First Respondent

And

Department of Human Services
Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter concerns an application to restrain the Department of Human Services (“the Department”) from collecting child support payable by the father arising from the decision of the Administrative Appeals Tribunal dated 27 October 2015. That decision required the father to pay additional child support to share the burden of private school fees payable in respect to the parties’ daughter, B (“B”). I intend to make an order restraining the Department from collecting the arrears payable by the husband but I will not make an order suspending the father’s obligation to pay additional ongoing child support in accordance with the decision.
The mother is currently 48 years of age. The father is currently 51 years of age. The parties commenced cohabitation in March 2000 and were married in 2001. There are two children of the marriage, namely, B who was born in 2002 and is…

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.

Continue reading Cutler and Warwick and Anor

Details

AGLC: Cutler and Warwick and Anor [2016] FamCA 277
Case: [2016] FamCA 277
Decision Date: 7 March 2016

CaseChat Overview and Summary

In *Cutler and Warwick and Anor*, McClelland J of the Supreme Court of New South Wales made an interim order restraining the Department of Human Services from collecting child support arrears. The dispute concerned arrears arising from a decision of the Administrative Appeals Tribunal made on 27 October 2015.

The central legal issue before the court was whether to grant an interlocutory injunction to prevent the collection of these child support arrears pending further orders.

McClelland J granted the interim order, restraining the Department of Human Services from collecting the specified child support arrears. The court's reasoning for this restraint is not detailed in the provided extract, but the order itself indicates a need to preserve the status quo pending further consideration of the matter.

Orders

Orders of the court

THE COURT ORDERS PENDING FURTHER ORDER THAT:

The Department of Human Services be restrained until further Order from collecting any child support arrears arising from the decision of the Administrative Appeals Tribunal made on 27 October 2015.

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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