Gruner and Child Support Agency
[2007] FMCAfam 513
•11 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GRUNER & CHILD SUPPORT AGENCY | [2007] FMCAfam 513 |
| CHILD SUPPORT ─ Stay application ─ respondent not served ─ stay application dismissed. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 |
| Applicant: | MR GRUNER |
| Respondent: | CHILD SUPPORT AGENCY |
| File number: | MLC 7735 of 2007 |
| Judgment of: | Walters FM |
| Hearing date: | 11 July 2007 |
| Date of last submission: | 11 July 2007 |
| Delivered at: | Melbourne |
| Delivered on: | 11 July 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Horak-Frankovich |
| Solicitors for the Applicant: | Horak Frankovich Rose & Cross |
ORDERS
That the application for a stay will be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Gruner & Child Support Agency is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7735 of 2007
| MR GRUNER |
Applicant
And
| CHILD SUPPORT AGENCY |
Respondent
REASONS FOR JUDGMENT
(Ex Tempore)
In this matter an application for a stay has been made. The application is clearly made pursuant to section 140 of the Child Support Assessment Act. The court has a very broad discretion in matters of this nature.
Of significance, however, is the fact that the mother of the relevant child has not been served with the application for a stay. In my view, to proceed to deal with it at this stage ─ when no real explanation has been provided to the court as to why she has not been served ─ would be a breach of the rules of procedural fairness.
I take into account, as well, the fact that the application which was served on the Child Support Agency (and which has not been served on the mother of the child who is, the person entitled to child support), indicates that the respondent has 14 days within which to file a response.
The Child Support Agency has not attended today and I am advised by the solicitor for the father that there is good reason for that, in that the Child Support Agency has advised him that it has elected not to involve itself in the application for a stay. Be that as it may, it is quite clear that the recipient of child support is a party to the application. I refer, in that regard, to the CCH Australian Family Law Child Support Handbook at paragraph 20‑173.
In any event, having read the material presented to the court, I am not satisfied that any adequate grounds have been provided such as to justify a stay in the present circumstances. General comments are made as to the contents of an application which has been made to the Child Support Agency, but no clear details are given as to the validity or otherwise of that application. On that basis, I am unable to assess the balance of convenience to the parties; nor am I able to assess the merits of the substantive application.
Had the application been served on the mother and had she elected not to take any interest in the proceedings, then my view might have been different. Similarly, if the Child Support Agency had been contacted and if it had provided correspondence to the effect that it did not oppose the stay application, then, in combination with proper notice being given to the mother, my view might also have been different as well.
I gave the father’s solicitor the option of adjourning the matter. He elected not to do so. That is his right. But I must say that ─ from the material before the court ─ it is difficult to identify the real grounds relied upon by the applicant in support of his substantive application before the Child Support Agency. For all the above reasons, I am not persuaded that grounds exist to issue a stay, and the application for a stay will therefore be dismissed.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 18 September 2007
0
0
2