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

1. This matter has a long history with the court.

2. The parties are the parents of Ms B (31) and Mr C (29).

3. 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

4. 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.

5. The administrative assessment for child support for Ms B ended in 2011 and for Mr C in 2013.

6. Since the filing of the undertaking, the father has never been released from his undertakings and has been unsuccessful in various and numerous court proceedings involving initial applications and appeals.

7. In 2022 the father’s application to proceed with his appeal from a decision of the Administrative Appeals Tribunal was dismissed by Judge Tonkin.

8. Prior to the current application the matter was last before the court in 2023 in respect to a costs application by the Child Support Registrar which was subsequently dismissed by Justice Baumann which resulted in the matter coming to an end.

9. In February 2024 the matter was reopened when Mr Hopkins filed an enforcement application for child support seeking the following orders:

   1.The mother owes the father $26,853.50 child support debt from current assessments

   2.The mother pay all costs incurred for obtaining the order

   3.The mother be issued with a departure prohibition order

   4.The mother pay the child support debt within 60 days into a bank account nominated by the father

10. The application was listed for mention in April 2024 before a Judicial Registrar.

11. On that day the parties appeared and the matter was listed to the child support enforcement list before me on 10 June 2024 with all parties given leave to appear by phone.

12. Notations were made to the orders that the mother was seeking a summary dismissal and that the father’s dispute as to the undertaking remaining in effect.

13. Further notations were made that an appearance on behalf of the Child Support Registrar was as a friend of the court and that the orders sought by Mr Hopkins as to a departure prohibition was outside the court’s jurisdiction.

14. On 10 June 2024 Mr Hopkins failed to appear whereby there was an appearance by the mother’s legal representative and by the Child Support Registrar’s legal representative as a friend of the court.

15. I dismissed the father’s application based on the following:

    (a)The father failed to attend.

    (b)There existed a binding undertaking of the father that leave of the court is required before the filing of any further applications.

    (c)The father had not obtained the leave of the court before bringing the enforcement application.

    (d)In any event in respect to the application itself was defective because:

    (i)The father had not provided a legal basis for the calculation of the amount being sought.

    (ii)There is a question of whether the court had jurisdiction to make the orders sought by the father.

16. After consultation with the parties present as to whether they had a different view (of which they did not) as to the application being dismissed, an order was made for dismissal of the father’s application for enforcement.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Turner.

Associate:

Dated:       6 August 2024