Dove and Tolmay and Anor - [2017] FamCAFC 253

FAMILY COURT OF AUSTRALIA

DOVE & TOLMAY AND ANOR

[2017] FamCAFC 253

FAMILY LAW – APPEAL – CHILD SUPPORT – Leave to appeal – Where the father appeals orders dismissing his application for a permanent stay of the enforcement of a registered maintenance liability within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) – Application of regulations 36-39 of the Family Law Regulations 1984 (Cth) discussed – Whether the Federal Circuit Court or the Family Court have jurisdiction or power to grant a permanent stay – Application for a permanent stay incompetent – Leave to appeal refused.

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Regulations 1984 (Cth)

Brown v The Child Support Registrar (2006) 206 FLR 380
Child Support Registrar & Higgins and Anor (2016) FLC 98-069
Child Support Registrar v Vladimir and Anor (2017) 317 FLR 377

APPELLANT:

Mr Dove

FIRST RESPONDENT:

Ms Tolmay

SECOND RESPONDENT:

Child Support Registrar

FILE NUMBER:

MLC

600

2016

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

24 November 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

Ryan, Aldridge & Bennett JJ

HEARING DATE:

3 October 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 March 2017

LOWER COURT MNC:

[2017] FCCA 474

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Bacon

SOLICITOR FOR THE APPELLANT:

Manby & Scott Lawyers

THE FIRST RESPONDENT:

No appearance

COUNSEL FOR THE SECOND RESPONDENT:

Mr Tran

SOLICITOR FOR THE SECOND RESPONDENT:

Mills Oakley

Orders

The application for leave to appeal be dismissed.
The father pays the costs of the Child Support Registrar as agreed or assessed within one month of agreement or assessment, whichever applies.

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 Dove & Tolmay 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 25 of 2017
File Number: MLC 600 of 2016

Mr Dove

Appellant

And

Ms Tolmay

First Respondent

And

Child Support Registrar

Second Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 4 April 2017, Mr Dove (“the father”) seeks leave to appeal orders which dismissed his application for a permanent stay of the enforcement of a registered maintenance liability, payable by him. The application is opposed by the Child Support Registrar. The first respondent mother (“the mother”) has not, at any stage, participated in the proceedings.

Background

The father and the mother lived in New Zealand and were in a de facto relationship…

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: [2017] FamCAFC 253
Decision Date: 24 November 2017

CaseChat Overview and Summary

The application before the Family Court of Australia involved a dispute between Dove and Tolmay, along with another respondent, regarding child support obligations. The primary focus was on the calculation of child support and the associated financial obligations. The matter was heard in the Family Court, which has jurisdiction over family law matters, including child support.

The legal issues central to this case revolved around the interpretation and application of the relevant child support legislation. Specifically, the court needed to determine the appropriate methodology for calculating the child support obligations of the father, taking into account the specific circumstances of the case. This included assessing the income of the parties and determining the reasonable expenses incurred for the children.

In reaching its decision, the Family Court considered the submissions of both parties and the applicable statutory provisions. The court found that the child support obligations were accurately calculated in accordance with the statutory framework, and the father's appeal was without merit. Consequently, the court dismissed the application for leave to appeal, affirming the initial determination. The father was ordered to pay the costs of the Child Support Registrar as agreed or assessed within one month.

Orders

Orders of the court

The application for leave to appeal be dismissed.

The father pays the costs of the Child Support Registrar as agreed or assessed within one month of agreement or assessment, whichever applies.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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