Kildea & Kildea (No. 2) - [2007] FamCA 1658

FAMILY COURT OF AUSTRALIA

KILDEA & KILDEA (NO. 2)

[2007] FamCA 1658

FAMILY LAW – CHILD SUPPORT DEPARTURE ORDER – Application for leave to appeal – Application for stay of order – Principles relevant to stay application – Application for stay refused

Family Law Act 1975 (Cth)
Child Support (Assessment) Act (1989) s 102, s 102(8)
Child Support (Registration and Collection) Act (1988) s 111C
Family Law Rules (2004) Rule 22.12

Alexander & Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Hendy & Deputy Child Support Registrar (2001) 164 FLR 236; (2001) 27 Fam LR 641; [2001] FamCA 632 at [39]-[44]
K & K [2000] FamCA 356
Kelly & Kelly (1980) FLC 91-007
OP & HM (2002) 168 FLR 465; (2002) 29 Fam LR 251; [2002] FamCA 454 at [18]
Penrith Whitewater Stadium Ltd & Lesvos Pty Ltd [2007] NSWCA 103
Pratt & Pratt (1993) FLC 92-354
Reichstein & Reichstein [2007] FamCA 365

APPLICANT:

Mr Kildea

RESPONDENT:

Ms Kildea

FILE NUMBER:

BRC

8727

2007

DATE DELIVERED:

1 November 2007

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

O'Reilly J

HEARING DATE:

27 July and 14 September 2007

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr McMillan, McMillan Boylson Lawyers

SOLICITOR FOR THE RESPONDENT:

Ms Vachon, Solicitor,

Christine Vachon Solicitor

Order

The father’s application for an order that the child support departure order made on 27 November 2006 be stayed until the determination of appeal NA16/2007 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 8727 of 2007

MR KILDEA

Applicant

And

MS KILDEA

Respondent

REASONS FOR JUDGMENT

Application

By application filed on 19 July 2007, Mr Kildea (the father) seeks a stay of the departure order which I made on 27 November 2006. The orders sought are:
(a)That the orders made by O’Reilly J on 27 November 2006 in relation to an application for a departure order be stayed until the determination of appeal NA16/07 presently pending in the Full Court of The Family Court of Australia.
(b)That the costs of this application be recovered.

[italics added]

Background

On 27 November 2006, I pronounced judgment and gave reasons for judgment in property proceedings between the father and Ms Kildea (the mother) and pronounced judgment and gave reasons for judgment in child support departure proceedings between the parties.
The departure order provided:
1 There be a departure order in relation to the child support otherwise payable by the father in relation to the children K born in September 1994 and A born in September 1997 (the children) pursuant to the Child Support (Assessment) Act 1989 (the Act).
2 The administrative child support assessments for the children which issued pursuant to the Act on 18 January 2005 and on 25 June 2006 (the two assessments which issued on that date) be set aside.
3…

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 Kildea & Kildea (No. 2)

Details

AGLC: Kildea & Kildea (No. 2) [2007] FamCA 1658
Case: [2007] FamCA 1658
Decision Date: 1 November 2007

CaseChat Overview and Summary

In *Kildea & Kildea (No. 2)*, O'Reilly J of the Federal Court of Australia considered an application for a stay of court orders. The specific dispute involved a party seeking to stay the operation of existing court orders, and the central question was which legal provision governed such an application.

The primary legal issue before the court was whether section 111C of the *Child Support (Registration and Collection) Act 1988* (the Registration and Collection Act) applied to an application for a stay of court orders, or if the matter was governed by the court's own Rules of Court, specifically Rule 22.12.

O'Reilly J reasoned that section 111C of the Registration and Collection Act was not applicable to an application for a stay of court orders. The court found that section 111C(3) expressly permits a stay only in relation to "the operation or implementation of the Assessment Act and this Act," not court orders themselves. Furthermore, the court invoked the doctrine of separation of powers, holding that the power to stay a court's own orders, particularly in relation to its appellate processes, is a matter for the court itself, governed by its own Rules of Court and established legal principles. The court distinguished the purpose of section 111C as relating to the stay of administrative actions or decisions, rather than judicial pronouncements. Despite this primary finding, the court indicated it would consider the test under section 111C(3) as if it applied, in addition to the principles relevant to Rule 22.12.

Orders

Orders of the court

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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

Reference was then made to s 111C of the Child Support (Registration and Collection) Act 1988 (the Registration and Collection Act) which provides:SECTION 111C STAY ORDERS111C(1) [When stay orders applicable] This section applies if a proceeding has been instituted: (a) in a court having jurisdiction under this Act; or (b) before the Registrar under Part VII; or (c) before the SSAT under Part VIIA; or (d) under Part 6A or 7 of the Assessment Act.111C(2) [Parties applying for orders] A party to the proceeding may, subject to the Family Law Act 1975 : (a) in the case of a proceeding instituted in a court - apply to that court for an order under this section; or (b) otherwise - apply to a court having jurisdiction under this Act for an order under this section.111C(3) [Stay even whilst proceedings pending] Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.111C(4) [Revocation of (3)] The court may, by order, vary or revoke an order made under subsection (3). 111C(5) [Restrictions on order] An order under subsection (3): (a) is subject to such terms and conditions as are specified in the order; and (b) operates for: (i) such period as is specified in the order; or(ii) if no period is specified - until a decision of the court, the Registrar or the SSAT determining the proceeding becomes final. Mr McMillan then submitted that s 111C applied to the application, to the exclusion of Rule 22.12. In my view, s 111C does not apply to an application for a stay of court orders, not only because expressly it permits a stay in relation only to “the operation or implementation of the Assessment Act and this Act” (see s 111C(3)), but also because, having regard to the separation of powers doctrine, the stay of court orders in relation to a court’s own appeal process is solely a matter for a court, governed by its own Rules of Court made by the judges, in this case Rule 22.12, and the principles associated with the exercise of the discretion provided by such Rules of Court as developed in the authorities. An intent ought not be imputed to Parliament to interfere in this process where another meaning is available. Thus, as recognised in Pratt & Pratt (1993) FLC 92-354 (although in relation to an application under the now repealed s 140 of the Assessment Act) the proper application of a provision such as s 111C in my view is to stay administrative actions or decisions by persons under the Acts mentioned, not orders of a court. In my view, thus, a provision such as s 111C has no application when the Court is asked by a litigant to exercise a discretion to stay one of its own orders. However, as Mr McMillan argued to the contrary, and submitted expressly that the proper test solely is whether the Court considers it desirable to order a stay taking into account the interests of the persons who may be affected by the outcome of the proceeding (s 111C(3)), I will deal with this test, as if it applied, in addition to the principles to which I have referred relevant to stay applications under Rule 22.12.