FRISWELL & CHILD SUPPORT REGISTRAR

Case [2016] FCCA 869

FEDERAL CIRCUIT COURT OF AUSTRALIA

FRISWELL & CHILD SUPPORT REGISTRAR [2016] FCCA 869

Catchwords:
CHILD SUPPORT – Agreement – Application to terminate Agreement – application for enforcement of agreement – application for remission of child support debt, fines and fees.

PRACTICE AND PROCEDURE – Summary Dismissal – Application for summary dismissal – whether substantive application has any reasonable prospects of success.

COSTS – Applications for costs.

PRACTICE AND PROCEDURE – Venue – change of venue – application to transfer proceeding to the Wollongong Registry.

PRACTICE AND PROCEDURE – Response – where Response filed more than 14 days after date of service of the Application – where hearing of Application for Summary Dismissal did not take place until 18 March 2014 – no prejudice to Applicant.

WORDS AND PHRASES – “non-parent carer” – the phrase “non-parent carer” in Child Support (Assessment) Act 1989 (Cth) at para. 83(1)(b) does not mean the Child Support Registrar.  

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.58, 80B, 80C, 80D, 80E, 81, 82, 83, 84, 99, 136
Child Support Legislation Amendment (Reform of the Child Support Scheme New Formula and Other Measures) Act 2006, Schedule 5
Child Support (Registration and Collection) Act 1988 (Cth), ss.30, 67, 68, 72, 80, 104, 105, 111B, 113

Evidence Act 1995 (Cth), s.131
Family Law Act 1975 (Cth), ss.83, 117, 121
Federal Circuit Court of Australia Act 1999 (Cth), s.17A
Federal Court of Australia Act 1976 (Cth), s.31A
Financial Management and Accountability Act 1997 (Cth), s.34
Federal Circuit Court Rules 2001, rr.4.03, 8.01, 13.10, 25B.07
Cases cited:
Ackers & Ducley [2010] FMCAfam 809
Felthouse v Bindley (1862) 11 Cb (NS) 869; 142 ER 1037
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123; [2005] FamCA 158
Re JJT & Ors; ex parte Victoria Legal Aid (1998) 195CLR 184; 155 ALR 251; 72 ALJR 1141; FLC 92-812; [1998] HCA 44
In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90-714
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Shammas v Canberra Institute of Technology [2014] FCA 71
Singh v Super City Home Loans Pty Ltd [2011] FCA 646Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25
Applicant: MS FRISWELL
Respondent: CHILD SUPPORT REGISTRAR
File Number: WOC 521 of 2007
Judgment of: Judge Scarlett
Hearing date: 18 March 2014
Date of Last Submission: 18 March 2014
Delivered at: Sydney
Delivered on: 19 April 2016

REPRESENTATION

Applicant: In person
Solicitor for the Respondent: Mr Gouliaditis
Solicitors for the Respondent: Australian Government Solicitor

ORDERS

  1. The Application filed on 9 October 2013 is summarily dismissed.

  2. Within twenty-one (21) days of the date of these Orders, the Applicant may file and serve a written submission showing cause why an Order should not be made requiring her to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 to the…

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AGLC
FRISWELL & CHILD SUPPORT REGISTRAR [2016] FCCA 869
Case
[2016] FCCA 869
Decision Date

CaseChat Overview and Summary

The Federal Circuit Court of Australia, before Judge Scarlett, considered an application by Ms. Friswell against the Child Support Registrar. Ms. Friswell sought to terminate a child support agreement, enforce that agreement, and obtain remission of child support debt, fines, and fees. The Registrar, in turn, applied for summary dismissal of Ms. Friswell's substantive application.

The court was required to determine whether Ms. Friswell's application had any reasonable prospects of success, thereby justifying summary dismissal. A related issue concerned the interpretation of the phrase "non-parent carer" within paragraph 83(1)(b) of the *Child Support (Assessment) Act 1989* (Cth), specifically whether it encompassed the Child Support Registrar. The court also considered an application to transfer the proceedings to the Wollongong Registry and the implications of a late-filed Response.

Judge Scarlett reasoned that Ms. Friswell's application lacked any reasonable prospects of success. The court found that the phrase "non-parent carer" in the Act did not refer to the Child Support Registrar, and therefore, Ms. Friswell's argument based on this interpretation was without merit. The court also noted that the late filing of the Response did not cause prejudice to Ms. Friswell, and the application for change of venue was not pursued. Consequently, the court summarily dismissed Ms. Friswell's application.

The orders made were that Ms. Friswell's application filed on 9 October 2013 be summarily dismissed. Ms. Friswell was also given twenty-one days from the date of the orders to file written submissions showing cause why she should not be ordered to pay the Respondent's costs.

Orders

Orders of the court

1.

The Application filed on 9 October 2013 is summarily dismissed.

2.

Within twenty-one (21) days of the date of these Orders, the Applicant may file and serve a written submission showing cause why an Order should not be made requiring her to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 to the Rules.

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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