Howarth and Howarth and Anor - [2016] FCCA 2869

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWARTH & HOWARTH & ANOR

[2016] FCCA 2869

Catchwords:

CHILD SUPPORT – Overseas maintenance order - Application by the husband pursuant to s.111C of the Child Support (Registration & Collection) Act for a stay of collection of money owing under the order pending determination of his application pursuant to Regulation 36 of the Family Law Regulations for discharge of the order – where the Child Support Registrar contends that the husband cannot rely on s. 111C – where the court is satisfied that the husband can rely on s.111C but in the exercise of its discretion declines to grant a stay

SPOUSAL MAINTENANCE – Overseas maintenance order - Application by the husband pursuant to s.111C of the Child Support (Registration & Collection) Act for a stay of collection of money owing under the order pending determination of his application pursuant to Regulation 36 of the Family Law Regulations for discharge of the order – where the Child Support Registrar contends that the husband cannot rely on s.111C – where the court is satisfied that the husband can rely on s.111C but in the exercise of its discretion declines to grant a stay.

Legislation:

Child Support (Registration and Collection) Act 1988, ss.18A, 30, 111C

Family Law Regulations, Reg.36, 37, 38

Cases cited:

Appeal No. SOA14 of 2016

Lloyd & Tasker (2016) 304 FLR 286

Perron & Bird [2014] FCCA 1315

Vaters & Kantner & Anor [2011] FMCAfam 303

Applicant:

MR HOWARTH

First Respondent:

MS HOWARTH

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

NCC 3044 of 2015

Judgment of:

Judge Terry

Hearing date:

11 August 2016

Date of Last Submission:

11 August 2016

Delivered at:

Newcastle

Delivered on:

14 November 2016

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:	Everingham Solomons Solicitors
The First Respondent:	In person
Solicitor Advocate for the Second Respondent:	Ms Rayment
Solicitors for the Second Respondent:	Mills Oakley Lawyers

ORDERS

The application for interim Orders contained in the Amended Initiating Application filed on 19 July 2016 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 3044 of 2015

MR HOWARTH

Applicant

And

MS HOWARTH

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Child Support Registrar has been asked by its counterpart in the United Kingdom to collect arrears of child support and spousal maintenance from Mr Howarth.
Mr Howarth owes the money pursuant to an order made in the Brighton County Court in the United Kingdom on 11 January 2006. He has made no payments since June 2009 and he currently owes something in the vicinity of half a million dollars.
Mr Howarth has applied to this court pursuant to reg.36 of the Family Law Regulations for an order discharging the Brighton County Court order and relying on s.111C of the Child Support (Registration &…

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: [2016] FCCA 2869
Decision Date: 14 November 2016

CaseChat Overview and Summary

In *Howarth and Howarth and Anor*, the husband sought a stay of collection of money owing under an overseas maintenance order, pending the determination of his application to discharge that order. The Child Support Registrar contended that the husband was not entitled to rely on section 111C of the *Child Support (Registration & Collection) Act 1988* (Cth) for the purpose of seeking a stay.

The primary legal issue before the court was whether the husband could validly rely on section 111C of the *Child Support (Registration & Collection) Act 1988* (Cth) to seek a stay of collection of money owing under an overseas maintenance order, and if so, whether a stay should be granted in the exercise of the court's discretion. The husband also sought to discharge the overseas maintenance order pursuant to Regulation 36 of the *Family Law Regulations 1984* (Cth).

The court was satisfied that the husband could rely on section 111C of the *Child Support (Registration & Collection) Act 1988* (Cth) to seek a stay. However, after considering all the circumstances and exercising its discretion, the court declined to grant the stay. The court's reasoning for declining the stay was not detailed in the provided text, but the decision indicates a thorough consideration of the relevant legal principles and factual matrix.

Consequently, the application for interim orders made by the husband was dismissed.

Orders

Orders of the court

The application for interim Orders contained in the Amended Initiating Application filed on 19 July 2016 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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