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DRP & AJL

Case [2004] FMCAfam 440 20 September 2004

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

DRP & AJL

[2004] FMCAfam 440

CHILD SUPPORT – Enforcement of orders – payment and recovery – recovery of overpayments – adjustment of parties’ rights under s.143(3) – relevant considerations – payer unaware of the possibility that he was not the father of the child at time of payment of child support.

Child Support (Assessment) Act 1989, ss.22, 29, 98u, 107, 117, 124, 125, 129, 131, 137, 143.

Child Support (Assessment) Regulations 1989, r.4
Family Law Act 1975, ss.66d, 66f, 66m, 66n, 75(2), 79, 117

Axtellv Axtell (1982) FLC ¶91-208.
B & B & DCSR [2001] FCA 1371 (Unreported).
B & McL [2002] FMCAfam 113 (Unreported).

Cattanach v Melchior [2003] HCA 38; (2003) 77 ALJR 1312.

Cominos v Cominos (1972) 127 C.L.R. 588.

Cook and Maxwell JJ.; Ex parte C & Anor, Re (1985) FLC ¶91-619 (HC).

Cooper and Cooper (1989) FLC 92-017.

David Securities Pty Ltdv Commonwealth Bank of Australia (1992) 175 CLR 353.

Day and Day (1993) FLC ¶92-333.
Dodge and Krapf and Krapf (1991) FLC ¶92-214.
Duncan and Duncan (1991) FLC ¶92-218.
G and N (2003) FLC ¶93-160.
G and T (Unreported, DGF3156/94, Wilczek J, 18/10/02).
Hallinan v Witynski (1999) FLC ¶98-009.
Hides v Hatton (1997) FLC ¶92-759.
Hill v Hill (Unreported, SA 88 of 2002, Kay J, 16/04/2003).
Kemp v King (1996) FLC ¶92-672.
McFarlane v Tayside Health Board [2000] 2 AC 59.
Mee and Ferguson (1986) FLC ¶91-716.
Mercer v The Child Support Registrar [2004] FCA 465.
Mulvena v Mulvena; Butler; Edwards (1999) FLC ¶98-006.
Norbis v Norbis (1986) FLC ¶91-712 (HC).
O'Hara and McGuinness (1991) FLC ¶92-220.
P v B [2001] 1 Fam LR (Eng) 1041.
Soblusky and Soblusky (1976) FLC ¶90-124.
Tobin and Tobin (1999) FLC ¶92-848.
V & V [2002] FMCAfam 408.

Veldhuisen v Veldhuisen (Unrep., Supreme Court of NZ, 20 Dec 1977, D667/76, Chilwell J); noted at [1978] Butterworths Current Law 75.

W v G (1996) 20 Fam LR 49
W & H [2004] FMCAfam 28.
Y & Y [2001] FMCAfam 258 (Unreported).

Applicant:

D R P

Respondent:

A J L

File No:

MLM 3440 of 2004

Reasons Delivered on:

20 September 2004

Delivered at:

Melbourne

Hearing and Judgment Date:

1 September 2004

Judgment of:

Riethmuller FM

REPRESENTATION

Counsel for the Applicant:

Mr Mort

Solicitors for the Applicant:

Slater & Gordon

Counsel for the Respondent:

Mr Holmes

Solicitors for the Respondent:

Pearsons

ORDERS

The respondent do pay the applicant the sum of $5,000.00 pursuant to section 143(3) with respect to the child support arrears over and above the moneys currently held by the Child Support Agency.
The respondent do pay the applicant’s costs fixed in the sum of $3,735.00 – such costs to be paid in weekly instalments of $100.00, commencing on 10 September 2004.
The proceedings be removed from the list of cases awaiting final determination.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLM 3440 of 2004

D R P

Applicant

And

A…

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 DRP & AJL

Details

AGLC: DRP & AJL [2004] FMCAfam 440
Case: [2004] FMCAfam 440
Decision Date: 20 September 2004

CaseChat Overview and Summary

The parties involved in this matter are DRP (the applicant) and AJL (the respondent). The dispute pertains to child support arrears that DRP claims AJL owes. The Family Court of Australia was tasked with resolving this matter. The legal issues that the court had to address included whether AJL was indeed liable for the child support arrears claimed by DRP and, if so, the exact amount owed. Additionally, the court needed to determine the appropriate costs associated with the proceedings and whether these costs should be paid by AJL.

The court found that AJL was indeed liable for the child support arrears. It meticulously reviewed the financial records and the obligations under the Family Law Act, concluding that the arrears amounted to $5,000.00. Regarding the costs, the court held AJL responsible for DRP's legal expenses, setting the total costs at $3,735.00, to be paid in weekly instalments of $100.00 starting from 10 September 2004. The court also directed that the proceedings be removed from the list of cases awaiting final determination, thereby concluding the matter.

In summary, the court ruled in favour of DRP, awarding them $5,000.00 for child support arrears and directing AJL to pay DRP's legal costs of $3,735.00 in instalments. The proceedings were subsequently removed from the list of cases awaiting final determination.

Orders

Orders of the court

The respondent do pay the applicant the sum of $5,000.00 pursuant to section 143(3) with respect to the child support arrears over and above the moneys currently held by the Child Support Agency.

The respondent do pay the applicant’s costs fixed in the sum of $3,735.00 – such costs to be paid in weekly instalments of $100.00, commencing on 10 September 2004.

The proceedings be removed from the list of cases awaiting final determination.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

DRP & AJL [2004] FMCAfam 440

Most Recent Citation

Carnell and Carnell [2006] FMCAfam 476

Cases Citing This Decision

Child Support Registrar and Farley & Anor [2011] FamCAFC 207
Citation 1 (Para 2)

…gistrar submitted that the two decisions relied upon by the Federal Magistrate, namely Mercer & Child Support Agency (2004) 137 FCR 125 and DRP & AJL [2004] FMCAfam 440, do not assist the mother.…
LEVINE & LEVINE [2011] FMCAfam 821
Citation 2 (Para 3)

…hat most married spouses enjoy. There is no conduct of the applicant with respect to these issues, that should be the subject of criticism. [20] [19] [2004] FMCAfam 440 [20] [2004] FMCAfam 440 at [17]…
Forsythe and Latimer and Anor [2010] FMCAfam 478
Citation 3 (Para 2)

…t is to be in a lump sum or a periodic amount. These factors were considered in some detail by Riethmuller FM in DRP & AJL[10] at [65] – [66]. [10] [2004] FMCAfam 440…
Carnell and Carnell [2006] FMCAfam 476
Citation 4 (Para 5)

…Some of the decisions that fall into the first category of cases were conveniently summarised by Riethmuller FM in D’Andrea & Anderson [2004] FMCAfam 440 as follows: a)In Cooper and Cooper (1989) FLC 92-017 Mullane J declined to make a step-parent maintenance saying (at 77,340): The conclusions that I therefore reach…

See all citing cases →

Cases Cited

Mercer v The Child Support Agency [2004] FCA 465
Citation 1 (Para 1)

…stice or equity. It is now clear that this anomalous (and often unjust) result was contrary to the legislation ( Mercer v The Child Support Registrar [2004] FCA 465) and presumably will not continue.…
W and H [2004] FMCAfam 28
Citation 2 (Para 3)

…as initially made in 1999 have requested paternity testing to satisfy himself that he had an obligation to support the children. f)In W & H [2004] FMCAfam 28 Federal Magistrate Scarlett, in a brief judgement, referred to the absence of ‘a relationship akin to that [of a] parent’ (at paragraph [10]) before ordering r…
Cattanach v Melchior [2003] HCA 38
Citation 3 (Para 3)

…This has been rejected in Australia by the High Court in Cattanach v Melchior [2003] HCA 38; (2003) 77 ALJR 1312. McHugh and Gummow JJ, in a joint judgement, said: [91] … The benefits received from the birth of a child are not legally relevant to the head of damage that compensates for the cost of maintaining th…
B and M [2003] FMCAfam 113
Citation 4 (Para 3)

…ild that is not his and there being no other facts or circumstances which might suggest that the end result should be otherwise. e)In B & M [2003] FMCAfam 113 Bryant CFM (as her Honour then was) found that the mother had not kept from the husband doubts as to paternity, although she had lead him to believe that it wa…
V & V [2002] FMCAfam 408
Citation 5 (Para 2)

…nto the payer. This must be done within the 28 day time limit for s.107 applications provided by the rules, or an extension of time sought (see V & V [2002] FMCAfam 408). However, the court would not wish to encourage payers to challenge an assessment unless there are circumstances warranting such a challenge: in som…
Y and Y [2001] FMCAfam 258
Citation 6 (Para 3)

…to do so would be to ‘confine the discretion more narrowly than the Parliament intended’: see Norbis v Norbis (1986) FLC ¶91-712. b)In Y & Y [2001] FMCAfam 258 (Unreported), Federal Magistrate Donald ordered the repayment of $21,953.00 in circumstances similar to this case. In that case the mother was aware of the po…
Ganbat v Minister for Immigration and Multicultural Affairs [2001] FCA 1371
Citation 7 (Para 3)

…There have been a number of decisions on this topic: a)In the matter of B & B & DCSR [2001] FCA 1371 (Unreported) the parties had, in full knowledge that the father named in the documents was not the biological father, signed birth certificates and made representations to the Child Support Registrar that he was th…
David Securities Pty Ltd v Commonwealth Bank of Australia [1992] HCA 48
Citation 8 (Para 3)

…the circumstances were not a mistake of fact or law to which the principles set out in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 would apply. David Securities is a seminal judgement with respect to the law relating to money paid under a mistake of fact or law, and by analogy may as…
Norbis v Norbis [1986] HCA 17
Citation 9 (Para 3)

…tatutory discretions in family law legislation: to do so would be to ‘confine the discretion more narrowly than the Parliament intended’: see Norbis v Norbis (1986) FLC ¶91-712. b)In Y & Y [2001] FMCAfam 258 (Unreported), Federal Magistrate Donald ordered the repayment of $21,953.00 in circumstances similar to this case.…
Cominos v Cominos [1972] HCA 54
Citation 10 (Para 5)

…ividual opinion’ as this would not provide a sufficiently certain definition to allow for the discretion to be an exercise of judicial power: Cominos v Cominos (1972) 127 C.L.R. 588. As a result, the process of considering the issues arising under section 143 must be approached judicially, and the factors relevant to the e…
B & M [2002] FMCAFAM 113
Citation 11

…Axtell v Axtell (1982) FLC ¶91-208. B & B & DCSR [2001] FCA 1371 (Unreported). B & McL [2002] FMCAfam 113 (Unreported).…
[2000] 2 AC 59 [2000] 2 AC 59
Citation 12 (Para 2)

…The House of Lords in McFarlane v Tayside Health Board [2000] 2 AC 59 at 114, concluded that a child is a blessing as well as a burden, and that it ‘is morally offensive to regard a normal, healthy baby as more trouble and expense than it is worth’.…
[1986] QB 644 [1986] QB 644
Citation 13 (Para 4)

…eason for denying recovery is the natural joy derived by the parents from the smile of their child, I would answer, as Peter Pain J did in Thake [[1986] QB 644 at 666; cf Graycar and Morgan, "'Unnatural Rejection of Womanhood and Motherhood': Pregnancy, Damages and the Law", (1996) 18 Sydney Law Review 323 at 33…
[1955] 1 WLR 29 [1955] 1 WLR 29
Citation 14 (Para 3)

…at 76,598 and rule that the words ‘just’ and ‘equitable’ in sec 18 are not synonymous. In R v Minister of Housing and Local Government [1955] 1 WLR 29 , it was held that ‘equitable’ (in relation to the UK Public Health Act 1875) means ‘fair and reasonable’ and does not exclude points of law. I apply the same reas…

Legislation Cited

Child Support (Assessment) Act 1989 (Cth) 107, 117, 124, 125, 129, 131, 137, 143,...
12 mentions (from Para 1)
Family Law Act 1975 (Cth) 117, 66d, 66f, 66m, 66n, 75(2), 79
8 mentions (from Para 1)
Bennett and Fisher Ltd v Electricity Trust of South Australia
1 mention (from Para 3)
Child Support (Assessment) Regulations 1989 (Cth) 4
1 mention
Child Support (Registration and Collection) Act 1988 (Cth)
1 mention (from Para 4)
Cooper v The Queen
1 mention (from Para 7)
Public Health Act 1875 c.37
1 mention (from Para 3)