Howarth and Howarth and Anor (No.2) - [2017] FCCA 1949

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOWARTH & HOWARTH & ANOR (No.2)

[2017] FCCA 1949

Catchwords:
CHILD SUPPORT – Application pursuant to Reg. 36 of the Family Law Regulations to discharge an overseas child support order for just cause – whether the Australian court is a clearly inappropriate forum to resolve the dispute – whether the applicant has established just cause.

SPOUSAL MAINTENANCE – Application pursuant to Reg. 36 of the FamilyLaw Regulations to discharge an overseas spousal maintenance order for just cause – whether the Australian court is a clearly inappropriate forum – whether the applicant has established just cause.

Legislation:

Child Support (Registration & Collection) Act 1988, ss.18A, 30
Family Law Act 1975 (Cth), ss.66B, 66C, 66D, 66J, 66K, 66L, 66M, 66S, 66T, 66W, 72, 75, 83
Family Law Regulations 1984 (Cth), rr.24, 36, 38, 38A

Cases cited:

Henry & Henry (1996) 185 CLR 571
Howarth & Howarth (2016) FCCA 2869
Kent & Kent (2017) FamCAFC 157
Lutzke & Lutzke (1979) FLC 90-714
Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Rogers & Rogers (2010) FamCA1069
Voth & Manildra Flour Mills Pty Ltd and Anor (1990) 171 CLR 538
Whung & Whung and Ors (2011) 45 Fam LR 269
Wreford & Caley (2010) FamCAFC 21
Salisbury & Landell (2012) FMCAfam 240

Applicant:

MR HOWARTH

First Respondent:

MS HOWARTH

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

NCC 3044 of 2015

Judgment of:

Judge Terry

Hearing date:

4 October 2016

Date of Last Submission:

4 October 2016

Delivered at:

Newcastle

Delivered on:

25 August 2017

REPRESENTATION

Counsel for the Applicant:

Mr Bithrey

Solicitors for the Applicant:

Everingham Solomons

The First Respondent:	In Person
Counsel for the Second Respondent:	Ms Rayment
Solicitors for the Second Respondent:	Mills Oakley

ORDERS

NOTING THAT the court is satisfied that the Federal Circuit Court of Australia is not a clearly inappropriate forum to resolve the dispute the amended initiating application filed by MR HOWARTH on 19 July 2016 seeking discharge of the orders for child support and spousal maintenance made by the (omitted) County Court (United Kingdom) on 11 January 2006 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Howarth & Howarth & Anor (No.2) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (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

Mr Howarth is the subject of action by the Child Support Registrar to collect arrears of child support, arrears of spousal maintenance and ongoing spousal maintenance arising out of an order made by the (omitted) County Court in the United Kingdom on 11 January 2006.
Mr Howarth ceased making payments pursuant to the order in June 2009 and left the United Kingdom later that year. He was found in Australia in 2014 and pursuant to reciprocal arrangements between the United Kingdom and Australia the Child Support…

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: [2017] FCCA 1949
Decision Date: 25 August 2017

CaseChat Overview and Summary

The Federal Circuit Court of Australia, presided over by Judge Terry, considered a dispute between Mr. Howarth and other parties concerning child support and spousal maintenance orders. Mr. Howarth had filed an amended initiating application seeking the discharge of orders made by the County Court of the United Kingdom on 11 January 2006.

The central legal issue before the court was whether the Federal Circuit Court of Australia was a clearly inappropriate forum for the resolution of Mr. Howarth's application to discharge the United Kingdom maintenance orders.

The court was satisfied that the Federal Circuit Court of Australia was not a clearly inappropriate forum. Consequently, the amended initiating application filed by Mr. Howarth was dismissed.

Orders

Orders of the court

NOTING THAT the court is satisfied that the Federal Circuit Court of Australia is not a clearly inappropriate forum to resolve the dispute the amended initiating application filed by MR HOWARTH on 19 July 2016 seeking discharge of the orders for child support and spousal maintenance made by the (omitted) County Court (United Kingdom) on 11 January 2006 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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