Jessup and Jessup - [2010] FMCAfam 124

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JESSUP & JESSUP

[2010] FMCAfam 124

CHILD SUPPORT – Application to set aside child support agreement made in May 2006 – agreement “transitioned” to new child support regime – whether “exceptional circumstances” established under s.136(2) – mother’s enforcement of child support agreement.

Child Support (Assessment) Act 1989, ss.3, 4, 12, 114, 121, 136
Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006, s.2, schedule 5
Child Support (Registration and Collection) Act 1988, ss.17, 95, 113A

Federal Magistrates Court Rules 1999, r.25A.07

Balzano & Balzano [2010] FamCAFC 11
Christian & Donald [2008] FamCAFC 44
Daley & Daley [2009] FMCAfam 398
In The Marriage of Lutzke (1979) 5 FamLR 553
Simpson and Hamlin (1984) FLC 91-576

Applicant:

MR JESSUP

Respondent:

MS JESSUP

File Number:

SYC 4589 of 2008

Judgment of:

Sexton FM

Hearing date:

27 January 2010

Date of Last Submission:

27 January 2010

Delivered at:

Sydney

Delivered on:

17 February 2010

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

In person

THE COURT ORDERS THAT:

The father’s application filed on 20 October 2009 be dismissed.
The mother be granted leave to strike out that part of the Enforcement Summons filed 9 November 2009 as relates to arrears of periodic child support and amend the Summons.
The mother be granted leave to file and serve a further Enforcement Summons in relation to arrears of periodic child support, upon compliance with the notice provisions of s.113A of the Child Support (Registration and Collection) Act.
The mother file and serve an affidavit verifying compliance with the notice provisions in s.113A and a further Enforcement Summons by no later than 5 March 2010.
The father file and serve any material in reply by no later than

19 March 2010.
The matter be listed for hearing before me at 10a.m. on 29 March 2010.
The father have leave to appear by telephone at the hearing, by arrangement at least 7 days in advance with my Associate (email skye.owen@fmc.gov.au) and the father initiate the call to the Court.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4589 of 2008

MR JESSUP

Applicant

And

MS JESSUP

Respondent

REASONS FOR JUDGMENT

Introduction

This matter concerns an application by the father to set aside a child support agreement entered into between the parties on 12 May 2006. The Agreement concerns the parties’ two children, [X] born [in] 1988, now aged 21 years, and [Y] born [in] 1993, now aged 16 years. [Y] attends [S] School in Sydney..
The father seeks an order that the Agreement be set aside and that he pay child support in accordance with the Child Support Agency’s assessment, and that the mother pay his costs of the proceedings. The mother wants the father’s application dismissed and the Child Support Agreement enforced.

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.

Continue reading Jessup and Jessup

Details

AGLC: Jessup and Jessup [2010] FMCAfam 124
Case: [2010] FMCAfam 124
Decision Date: 17 February 2010

CaseChat Overview and Summary

In the Family Court of Australia, the case of Jessup and Jessup involved the father filing an application on 20 October 2009 and the mother subsequently filing an Enforcement Summons on 9 November 2009. The dispute centred on issues of child support and enforcement of arrears. The legal issues that required determination by the court were primarily concerned with the procedural correctness of the mother's Enforcement Summons, particularly in relation to compliance with the notice provisions under section 113A of the Child Support (Registration and Collection) Act.

The court's reasoning focused on the mother's failure to comply with the notice requirements before filing the Enforcement Summons. This procedural lapse necessitated the striking out of the relevant part of the Summons concerning the arrears of periodic child support. The court granted the mother leave to file an amended Enforcement Summons, provided she complied with the notice provisions and served the required affidavit verifying this compliance. The court scheduled a hearing date to address the remaining issues, allowing the father the option to appear via telephone if necessary.

The final orders of the court included the dismissal of the father's application, granting the mother leave to strike out and amend the Enforcement Summons, and requiring both parties to file and serve specific documents by set deadlines. The matter was set for a hearing to further explore the issues of child support enforcement.

Orders

Orders of the court

The father’s application filed on 20 October 2009 be dismissed.

The mother be granted leave to strike out that part of the Enforcement Summons filed 9 November 2009 as relates to arrears of periodic child support and amend the Summons.

The mother be granted leave to file and serve a further Enforcement Summons in relation to arrears of periodic child support, upon compliance with the notice provisions of s.113A of the Child Support (Registration and Collection) Act.

The mother file and serve an affidavit verifying compliance with the notice provisions in s.113A and a further Enforcement Summons by no later than 5 March 2010.

The father file and serve any material in reply by no later than

19 March 2010.

The matter be listed for hearing before me at 10a.m. on 29 March 2010.

The father have leave to appear by telephone at the hearing, by arrangement at least 7 days in advance with my Associate (email skye.owen@fmc.gov.au) and the father initiate the call to the Court.

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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