Hockley and Hockley

[2012] FamCA 39

FAMILY COURT OF AUSTRALIA

HOCKLEY & HOCKLEY [2012] FamCA 39

FAMILY LAW - CHILD SUPPORT – interim orders – application by the father seeking that payments made to the Child Support Agency be withheld from the mother until a new child support assessment has been completed – where the trial is listed to commence shortly – where it was not just and equitable to withhold such payments bearing in mind the needs of the children – where any overpayment of child support monies can be remedied by an appropriate adjustment at trial – application dismissed.

Family Law Act 1975 (Cth)

APPLICANT: Ms Hockley

RESPONDENT: Mr Hockley

INTERVENOR:

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: ADC 845 of 2010

DATE DELIVERED: 17 January 2012

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 17 January 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: In person

SOLICITOR FOR THE RESPONDENT: N/A

Orders

1. The father’s Application in a Case filed on 3 November 2011 is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hockley & Hockley has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER:  ADC 845 of 2010

Ms Hockley

Applicant

And

Mr Hockley

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. The Application in a Case filed by the father could be described as seeking to “freeze the monies being paid to the Child Support Agency”.  In the Application in a Case filed on 3 November 2011 the father seeks that the payments will be continued to be made to the Child Support Agency from the father’s wages in accordance with the current assessment but he was seeking an order that they not be dispersed by the Child Support Agency to the mother until a new assessment has been completed and all the mother’s changes in circumstances have been taken into account.  That is the application which has been adjourned back before me this morning. 

2. The orders I made on 6 December 2011 included an order that the mother take all necessary steps to complete any further application by way of a change of assessment or update in information to be provided to the Child Support Agency within the next seven days and to provide the father in writing with a copy of that information. 

3. The mother appears unrepresented before me this morning as does the father.  It appears from comments she makes from the bar table that the mother has not complied with that order made by me on 6 December 2011.  There has certainly not been any written information provided by the mother or her solicitors to the husband direct.

4. I however take into account that the property settlement proceedings are currently before the Court and are to be listed for final determination.  My understanding of the child support legislation is such that if it appears that the father has paid more than he should have paid in relation to any period of time by way of child assessment, then an appropriate adjustment will be able to be made at a time when the full information is before the Court about the correct financial circumstances of both of the parties and determined after the Court has heard all of the evidence and tested the varying information being provided by the parties.

5. In the current circumstances, I therefore do not consider it as just and equitable to make the order sought in relation to the “freezing” of the child support payments.  That is only on the basis that the material does not necessarily indicate that “freezing” all of the child support payments would be a satisfactory outcome, even on a temporary basis, bearing in mind the needs of the children and the means of recovering the monies should they be overpaid.  I therefore decline to make the orders sought in the Application in a Case sought by the father. 

6. That does not mean to say that the payments made and financial arrangements currently in place will not be taken into account; indeed, I expect that they will be taken into account and appropriate adjustments made by way of the final property settlement proceedings, provided, of course, the parties provide the appropriate accurate information and supporting documentation to the Judge who will be determining the outstanding final orders matters.

7. I have been informed that the arrangements are in place for a visiting Judge to attend to determine the matter on a final basis in the three weeks commencing 30 April 2012.  That will be a visiting Judge.  Arrangements will be made through the Registry for orders to be made to provide for the filing of all affidavit material and any supporting information, so that all of the issues remaining outstanding can be determined by Justice Fowler in the three weeks commencing 30 April 2012.  You are on notice that the trial will then take place and that your current addresses for service will be the means by which the Registry will contact you with a view to making arrangements directly for the preparation of the matter for final hearing. 

8. The Legal Services Commission will be involved in the trial insofar as the child C is concerned.  I will make arrangements for the Independent Children’s Lawyer to be informed about the listing of the matter for 30 April 2012 for three weeks. 

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 17 January 2012.

Associate: 

Date:  8 February 2012