FERRIS & DOUGLAS (No.2) - [2017] FCCA 2035

FEDERAL CIRCUIT COURT OF AUSTRALIA

FERRIS & DOUGLAS (No.2)

[2017] FCCA 2035

Catchwords:
FAMILY LAW – CHILD SUPPORT – The Father’s application pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth) for a stay of the collection and enforcement of child support payments pending the determination of his departure application pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) – the Mother opposes the Father’s application for a stay – the Mother seeks that if a stay is granted that there be an order the Father pay child support in the sum of $100 per child per week until the hearing of the Father’s departure application.

HELD – Orders made for a stay of the collection and enforcement of the Father’s child support payments pending the final hearing of his departure application.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth), s.111C
Child Support (Assessment) Act 1989 (Cth), s.117

Cases cited:

Jones v Child Support Registrar [2007] FCA 1732

Onder & Child Support Agency & Spencer [2010] FMCAfam 693
Abani & Abani & Anor (SSAT Appeal) [2014] FCCA 2058

Applicant:

MR FERRIS

Respondent:

MS DOUGLAS

File Number:

MLC 4364 of 2013

Judgment of:

Judge Bender

Hearing date:

3 August 2017

Date of Last Submission:

3 August 2017

Delivered at:

Melbourne

Delivered on:

30 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Constantinou

Solicitors for the Applicant:

Schetzer Constantinou

Counsel for the Respondent:

Mr Wilson

Solicitors for the Respondent:

Cantwell Family Lawyers

ORDERS

Pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth), there be a stay on the collection and enforcement of arrears of child support accumulated up to and including the date of this order, payable by the Applicant to the Respondent, for the children [X] born (omitted) 2006, [Z] born (omitted) 2008 and [Y] born (omitted) 2009, until

30 April 2018.

IT IS NOTED that publication of this judgment under the pseudonym Ferris & Douglas (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 4364 of 2013

MR FERRIS

Applicant

And

MS DOUGLAS

Respondent

REASONS FOR JUDGMENT

Introduction

This is the Father’s application pursuant to section 111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”) for orders staying the collection and enforcement of child support by the Child Support Agency pending the determination of his application pursuant to section 117 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) that there be a departure order from the assessments in respect of which the Child Support Agency made a Notice of Decision dated 16 March 2017.
The Mother opposes the Father’s stay application. In the event the Court gives the Father the “indulgence of a stay order”, the Mother seeks the Court order the Father pay child support at the rate of $100 per child per week; a total of $1,300 per month, pending the…

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] FCCA 2035
Decision Date: 30 August 2017

CaseChat Overview and Summary

The parties in this matter were the Father, who sought a stay of child support payments, and the Mother, who opposed this application. The dispute concerned the Father's application under section 111C of the *Child Support (Registration and Collection) Act 1988* (Cth) for a stay on the collection and enforcement of child support payments. This application was made pending the determination of his separate departure application under section 117 of the *Child Support (Assessment) Act 1989* (Cth). The Mother sought that, if a stay were granted, the Father be ordered to pay $100 per child per week until the hearing of his departure application. The matter was heard by Judge Bender.

The court was required to determine whether to grant the Father's application for a stay on the collection and enforcement of child support payments. Additionally, the court considered the Mother's request for a conditional payment order should a stay be granted.

Judge Bender ordered a stay on the collection and enforcement of child support arrears payable by the Father to the Mother for the three children. This stay was to remain in effect until 30 April 2018, pending the final hearing of the Father's departure application.

Orders

Orders of the court

Pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth), there be a stay on the collection and enforcement of arrears of child support accumulated up to and including the date of this order, payable by the Applicant to the Respondent, for the children [X] born (omitted) 2006, [Z] born (omitted) 2008 and [Y] born (omitted) 2009, until

30 April 2018.

Background

Background to the litigation

Full text does not contain this section.

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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