Hewett and Johnson and Anor

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HEWETT & JOHNSON & ANOR [2012] FMCAfam 1079

CHILD SUPPORT – Application – overpayment of child support – whether a gift to the payee – whether payer intended overpayment to be credited against ongoing liability for child support – declaratory relief – delay – whether excessive and unwarranted delay – discretion of the court.

Child Support (Registration and Collection) Act 1988, ss.30, 67, 74, 75

John Fairfax & Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Klewer v Walton [2003] NSWCA 308

Applicant: MR HEWETT

First Respondent: MS JOHNSON

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 2549 of 2010

Judgment of: Scarlett FM

Hearing dates: 13 March, 5 June 2012

Date of Last Submission: 5 June 2012

Delivered at: Sydney

Delivered on: 9 October 2012

REPRESENTATION

Solicitor for the Applicant: Mr Benetatos

Solicitors for the Applicant: Benetatos White

Counsel for the first Respondent: In person

Solicitors for the first Respondent: No solicitor

Counsel for the second Respondent: Mr Kaplan

Solicitors for the second Respondent: Sparke Helmore

ORDERS

1. Order 1 made on 7 December 2010 is discharged.

2. The Second Respondent Child Support Registrar reduce the amount of child support calculated as being due and payable by the Applicant by the sum of $12,985.43 with effect from 2 December 2004.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 2549 of 2010

MR HEWETT

Applicant

And

MS JOHNSON

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the payer of child support to reduce the amount calculated as owing by an amount of $12,985.43. The Application is opposed by the First Respondent, the payee, and the Second Respondent, the Child Support Registrar. The child support relates to the daughter of the Applicant and the First Respondent, who was born [in] 1997 and is now 15 years of age.

2. On 7^th December 2010 orders in respect of arrears of child support and late payment penalties were stayed to the extent of $19,560.34.

Background

1. On 27^th April 2010 the Child Support Registrar filed a summons against the Applicant, claiming that he was indebted to the Commonwealth under s.30 of the Child Support (Registration and Collection) Act 1988 for an amount of $25,845.59 by way of arrears of child support payments and an amount of $8,129.02 by way of late payment penalties under s.67 of the Act.

2. On 7^th June 2010 the Applicant and the Child Support Registrar entered into consent orders:

   a)declaring that the Applicant (who is the Respondent in the summons brought by the Child Support Registrar) owed the sum of $35,571.34 consisting of arrears of $26,956.43 and late payment penalties of $8,614.91;

   b)the Applicant…