King and Aames and Ors - [2013] FamCA 263

FAMILY COURT OF AUSTRALIA

KING & AAMES AND ORS

[2013] FamCA 263

FAMILY LAW – CHILDREN – With whom a child spends time – Where the child is to attend counselling to reconcile his relationship with his father and older brother.
FAMILY LAW – CONTRAVENTION – Where the mother claims reasonable excuse for the contravention – Child’s views.
FAMILY LAW – CHILD SUPPORT – Application for a declaration – Where the father is in arrears – Where the father is bankrupt.
FAMILY LAW – APPEAL – Appeal of the Social Security Appeals Tribunal decision – Time for appeal – Where the father sought leave to extend the time within which he may appeal– Question of law rather than question of fact – Rules of court – Where the application for an extension of time within which an appeal may be lodged is denied.

Child Support (Registration and Collection) Act 1988 (Cth) Part VIII Division 3, s 88, s 110B, s 110C.
Family Law Act 1975 (Cth) Part VII Division 13A , s 70NAE.
Family Law Rules 2004 (Cth) Chapter 4 Part 4.2 Division 4.2.5, r 1.12, r 4.16, r 4.17, r 4.21, r 4.22, r 4.23.

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321.
Ejueyitsi v Bond University [2012] FCA 1514.
Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706.
Gallo v Dawson (1990) 93 ALR 479.
Schmidt v Geller (SSAT Appeal) [2012] FMCAfam 735.
Servos v Repatriation Commission (1995) 56 FCR 377.
Waterford v The Commonwealth (1987) 163 CLR 54.

APPLICANT:

Ms King

1^ST RESPONDENT:

Mr Aames

2^ND RESPONDENT:

Official Trustee In Bankruptcy

3^RD RESPONDENT:

Child Support Registrar

FILE NUMBER:

BRC

10933

2009

DATE DELIVERED:

26 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Forrest J

HEARING DATE:

26 and 27 March 2013

REPRESENTATION

FOR THE APPLICANT:

Ms King in Person

FOR THE 1^ST RESPONDENT:

Mr Aames in Person

FOR THE 2^ND RESPONDENT:

No Appearance

COUNSEL FOR THE 3^RD RESPONDENT:

Mr Black

SOLICITOR FOR THE 3^RD RESPONDENT:

Mr Foley
Australian Government Solicitor

Orders

That the mother shall make all necessary arrangements for the child, S AAMES, born … 1998 (“S”), to attend the service known as “Headspace” situated at U, if it is agreed by that service to accommodate S, for S to receive such counselling as may be able to be provided by that service, particularly with a view to reconciling his relationships with his father and with his elder brother, J AAMES, born … 1992 (“J”), such counselling to involve the father and/or J to the extent that each of the father and J is willing to be involved in such counselling, but at the discretion and direction of the particular counsellor who is providing service to the child, S, through that place.
That should there be any fees or costs charged by the service known as “Headspace” in respect of any counselling…

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

AGLC: King and Aames and Ors [2013] FamCA 263
Case: [2013] FamCA 263
Decision Date

CaseChat Overview and Summary

The Family Court of Australia heard proceedings between Ms King (the mother) and Mr Aames (the father), with the Official Trustee in Bankruptcy and the Child Support Registrar also listed as respondents. The dispute encompassed several distinct issues, including child support arrears, parenting arrangements for the parties' youngest child, S, and the father's application for an extension of time to appeal a decision of the Social Security Appeals Tribunal (SSAT). The mother sought declarations regarding substantial child support arrears owed by the father, while the father had made contravention applications against the mother concerning parenting orders and sought an order for S to attend counselling to reconcile his relationship with his father and older brother.

The court was required to determine the mother's applications for declarations concerning child support arrears, the father's contravention applications against the mother, the father's application for an extension of time to appeal the SSAT decision, and the father's application for a parenting order concerning S's attendance at counselling. The father's contravention allegations related to the mother's failure to return children T and S to his care on specific occasions, and the mother asserted reasonable excuse for these actions. The father's appeal to the SSAT concerned a determination of his earning capacity for child support assessment purposes.

In relation to the parenting dispute concerning S, the court ordered that the mother make arrangements for S to attend counselling at "Headspace" with a view to reconciling his relationship with his father and elder brother, with the father and/or brother to be involved as the counsellor deemed appropriate. The costs of this counselling were to be borne equally by the parents. The father's contravention applications against the mother were dismissed. The court also dismissed the father's application for an extension of time to appeal the SSAT decision, noting that the application was made nearly three years after the decision was delivered and that the appeal was based on a question of law.

The court declared that the father was indebted to the mother in the total amount of $92,975.64 for unpaid child support arrears for specific periods. The court also noted that publication of the judgment under the pseudonym King & Aames had been approved by the Chief Justice.

Orders