Hopkins & Shorley (No 3) - [2024] FedCFamC2F 1059

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Hopkins & Shorley (No 3) [2024] FedCFamC2F 1059

File number(s): TVC 539 of 2011

Judgment of: JUDGE L. TURNER

Date of judgment: 6 August 2024

Catchwords: FAMILY LAW – child support – where father provided undertakings in 2004 not to bring further applications without leave of the court – where father has unsuccessfully brought applications and filed appeals since then – where father now seeking enforcement proceedings as to child support debt– where father not sought leave of the court – where father failed to appear at court event – where application defective – held application be dismissed

Legislation:
Child Support Act (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth)

Division: Division 2 Family Law

Number of paragraphs: 16

Date of last submission/s: 10 June 2024

Date of hearing: 10 June 2024

Place: Brisbane

For the Applicant: The Applicant did not appear

Solicitor for the Respondent: Mr Kholo, Best Wilson Buckley Family Law

ORDERS

TVC 539 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR HOPKINS

Applicant

AND:
MS SHORLEY

Respondent

ORDER MADE BY:

JUDGE L. TURNER

DATE OF ORDER:

10 JUNE 2024

THE COURT ORDERS:
1.That the Application - Enforcement filed by Mr Hopkins on 28 February 2024 is hereby dismissed.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT

This matter has a long history with the court.
The parties are the parents of Ms B (31) and Mr C (29).
In June 2004 the father provided an undertaking to the court that:
I will bring no further applications pursuant to the Family Law Act 1975 against the mother [Ms Shorley] in relation to this matter without the leave of the court
In June 2004 the father provided a further undertaking to the court that:
I will not bring any proceedings pursuant to the Child Support Act or any other associate legislation without first obtaining the leave of the court pursuant to my undertaking tendered 3 June 2004.
The administrative assessment for child support for Ms B ended in 2011 and for Mr C in 2013.
Since the filing of the undertaking, the father has never been released from his undertakings and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] FedCFamC2F 1059
Decision Date: 6 August 2024

CaseChat Overview and Summary

Mr Hopkins, the father, and Ms Shorley, the mother, were involved in an ongoing child support dispute. Mr Hopkins had previously made undertakings in 2004, agreeing not to bring further applications without the court's leave. Despite these commitments, he has repeatedly attempted to bring further applications and appeals, all of which have been unsuccessful. Mr Hopkins sought enforcement proceedings concerning a child support debt, without first obtaining the necessary leave from the court. He failed to appear at the scheduled court event, and his application was found to be defective.

The court was required to decide whether Mr Hopkins' application for enforcement of child support should be dismissed due to his failure to seek leave and his non-appearance, despite the previous undertakings. The court also needed to determine whether the application was sufficiently compliant with the procedural requirements.

The court dismissed Mr Hopkins' application for enforcement of child support. The court found that Mr Hopkins' failure to seek leave of the court and his non-appearance at the scheduled event were significant procedural breaches. Additionally, the court identified defects in the application itself. Judge Turner concluded that these factors warranted the dismissal of the application. The court's decision was consistent with the procedural requirements and the previous undertakings made by Mr Hopkins.

The court ordered that the application for enforcement filed by Mr Hopkins on 28 February 2024 be dismissed. This decision reflects the court's adherence to procedural rules and the importance of compliance with prior court undertakings.

Orders

Orders of the court

TVC 539 of 2011

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR HOPKINS

Applicant

AND:

MS SHORLEY

Respondent

ORDER MADE BY:

JUDGE L. TURNER

DATE OF ORDER:

10 JUNE 2024

THE COURT ORDERS:

1. That the Application - Enforcement filed by Mr Hopkins on 28 February 2024 is hereby dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	TVC 539 of 2011
Judgment of:	JUDGE L. TURNER
Date of judgment:	6 August 2024
Catchwords:	FAMILY LAW – child support – where father provided undertakings in 2004 not to bring further applications without leave of the court – where father has unsuccessfully brought applications and filed appeals since then – where father now seeking enforcement proceedings as to child support debt– where father not sought leave of the court – where father failed to appear at court event – where application defective – held application be dismissed
Legislation:	Child Support Act (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth)
Division:	Division 2 Family Law
Number of paragraphs:	16
Date of last submission/s:	10 June 2024
Date of hearing:	10 June 2024
Place:	Brisbane
For the Applicant:	The Applicant did not appear
Solicitor for the Respondent:	Mr Kholo, Best Wilson Buckley Family Law

TVC 539 of 2011
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR HOPKINS Applicant
AND:	MS SHORLEY Respondent

ORDER MADE BY:	JUDGE L. TURNER
DATE OF ORDER:	10 JUNE 2024