Godby and Godby and Anor

[2019] FCCA 973

FEDERAL CIRCUIT COURT OF AUSTRALIA

GODBY & GODBY & ANOR [2019] FCCA 973

Catchwords:
CHILD SUPPORT – By consent the binding Child Support Agreement is set aside – no order as to costs.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.72D, 72I, 136, 137

Child Support (Registration and Collection) Act 1988 (Cth), s.55, 69, 104

Family Law Act 1975 (Cth)

Applicant: MR GODBY

Respondent: MS GODBY

Intervenor: CHILD SUPPORT REGISTRAR

File Number: SYC 6292 of 2018

Judgment of: Judge Street

Hearing date: 27 March 2019

Date of Last Submission: 27 March 2019

Delivered at: Parramatta

Delivered on: 27 March 2019

REPRESENTATION

Counsel for the Applicant: Mr A Ahmad

Solicitors for the Applicant: Mihalatos & Associates

Counsel for the Respondent: Mr L O'Reilly

Solicitors for the Respondent:	Vizzone Ruggero Twigg Lawyers
Solicitors for the Intervenor	Mr A Keevers Sparke Helmore

DECLARATIONS

1. For the purpose of s 136(2)(d) exceptional circumstances have arisen since the execution of the binding Child Support Agreement 2 June 2011, whereby the applicant will suffer hardship if the agreement is not set aside.

ORDERS

1. Pursuant to s 137 the Court sets aside the 2011 binding Child Support Agreement.

2. Pursuant to s 137 the Court sets aside the Child Support Agreement dated 1 September 2009.

3. Pursuant to s 136 and s 137 that the arrears owing as a debt collectable under the Child Support (Assessment) Act 1989 (Cth) and under the Child Support (Registration and Collection) Act 1988 (Cth) is reduced to the sum of 55,000 to be paid within 60 days and that no interest or penalty is to be imposed if paid within 60 days.

4. The Registrar, upon being satisfied as to payment of the above debt, is to revoke or lift the deportation prohibition order currently enforce against the applicant forthwith.

5. The cost order made 25 September 2014 by the learned Henderson J be discharged.

6. No order as to costs of these proceedings is made to the effect each party bear their own costs.

7. Any other existing penalty or interest that may have been imposed upon the applicant and/or the respondent is extinguished.

DATE OF ORDER: 27 March 2019

IT IS NOTED that publication of this judgment under the pseudonym Godby & Godby & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

SYC 6292 of 2018

MR GODBY

Applicant

And

MS GODBY

First Respondent

And

CHILD SUPPORT REGISTRAR

Intervenor

REASONS FOR JUDGMENT

1. These are proceedings that were commenced for the setting aside of a binding Child Support Agreement entered into in 2011. The proceedings were commenced on 2 October 2018. In relation to the history of the matter, there had been an earlier Child Support Agreement dated 1 September 2009. 

2. The Court has treated as having before it for the purpose of considering whether it is appropriate to make consent orders the evidence that has been filed by the parties.  That evidence identifies the background in relation to the applicant which, given the proposed consent orders, it is not necessary for the Court to summarise suffice to say that the Court is satisfied that it is appropriate to make the proposed orders.

3. The Court is satisfied that the powers under s 136 and s 137 of the Child Support (Assessment) Act 1989 (Cth) permit setting aside in whole or in part of the Child Support Agreement so as to reduce debt.

4. Because the Court is vested with jurisdiction in matters arising under s 104 of the Child Support (Registration and Collection) Act 1988, the Court is satisfied it has power to make Orders 4 and 7 that were not consented to by the intervenor. Further in relation to order 4 concerning s 72D and s 72I of the Child Support (Assessment) Act 1989, this ban was a key area of dispute between the parties and if payment has been made, there could be no reasonable grounds to maintain the departure ban order. The power to impose interest and penalties under s 69 and s 55 of the Child Support (Registration and Collection) Act 1988 are also within the subject matter of the dispute between the parties and jurisdiction of the Court.

I certify that the preceding four (4) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 12 April 2019