Klement and Glynn - [2010] FamCA 40

FAMILY COURT OF AUSTRALIA

KLEMENT & GLYNN

[2010] FamCA 40

FAMILY LAW – CHILD SUPPORT – jurisdiction – application by the mother seeking orders pursuant to ss 111 and 112 of the Child Support (Assessment) Act 1989 (Cth) for leave for the Registrar to make a determination under s 98S in respect of child support periods more than 18 months prior to the date of the application – whether the Court is able to make the orders sought – whether the application is a “sham” to overcome difficulties caused by the mother’s failure to pursue appropriate avenues of review of the Registrar’s decision and failure to appeal the refusal to grant an extension of time to review – application dismissed

Child Support (Assessment) Act 1989 (Cth) ss 98B, 98S, 110, 111, 112 & 118
Child Support (Registration and Collection) Act 1988 (Cth) ss 79D, 80 & 103VA

Dwyer & McGuire (1993) FLC 92-420

Hendy v Child Support Registrar & Anor (2001) 27 Fam LR 641

APPLICANT:

Ms Klement

RESPONDENT:

Mr Glynn

FILE NUMBER:

ADC

2056

2008

DATE DELIVERED:

29 January 2010

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

18 December 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr McQuade

SOLICITOR FOR THE APPLICANT:

Lempriere Abbott McLeod

COUNSEL FOR THE RESPONDENT:

Ms Belchamber

SOLICITOR FOR THE RESPONDENT:

Belchamber Legal

Orders

Paragraph 13 of the mother’s Amended Initiating Application filed on 9 September 2009 is dismissed.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 2056 of 2008

MS KLEMENT

Applicant

And

MR GLYNN

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Initiating Application filed on 9 September 2009 the mother sought, inter alia:
“13. An order pursuant to Sections 111 and 112 of the Child Support Assessment Act:-
13.1Granting leave to the Registrar to make a determination under Section 98S; or alternatively
13.2Granting leave to the Court to make an order under Section 118
In respect of periods more than 18 months prior to the date of this application namely the period between about October 2005 and about October 2006 and the period from October 2006.”
In preparing the matter for final hearing a question was raised in relation to the jurisdiction of the Court to determine the child support issue.
That issue was listed before me for determination on the 18 December 2009.

Hearing

On 18 December 2009 the applicant mother was represented by Mr McQuade of counsel and the respondent father by Ms Belchamber. The Independent Children’s Lawyer did not seek to be heard in relation to child support.
At the hearing on 18 December 2009, Mr McQuade, counsel for the mother, conceded that the mother was seeking an order pursuant to section 98S of the Child Support (Assessment) Act 1989 (Cth) and did not pursue leave for the Court to make an order under section 118.
The…

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.

Keep reading for free

Create a free CaseChat account to read Klement and Glynn and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FamCA 40
Decision Date: 29 January 2010

CaseChat Overview and Summary

In this matter before Dawe J, the mother sought leave to request the Child Support Registrar to exercise a discretion under section 98S of the *Child Support (Assessment) Act 1989*. The father contended that the mother's application was a sham, designed to circumvent her failure to pursue appropriate review avenues for the Registrar's decision and her inability to obtain an extension of time for such review. The father argued that the Court lacked jurisdiction to entertain the application, relying on the procedures for internal objections to administrative assessments outlined in the *Child Support (Registration and Collection) Act 1988*.

The central legal issue was whether the Court had the jurisdiction to grant the mother leave to apply under section 111 of the *Child Support (Assessment) Act 1989* for the Registrar to exercise the discretion under section 98S, particularly given the time elapsed since the relevant child support assessments were in force. The court was required to determine if the mother's application fell within the scope of section 111, which permits applications for leave concerning child support periods more than 18 months but less than seven years prior to the application date.

Dawe J reasoned that while section 111 and section 98S, which allows the Registrar to vary factors including a parent's child support percentage, appeared to apply to the periods the mother sought to challenge, a critical prerequisite was that an administrative assessment must be in force at the time a carer requests a departure. The mother's own submissions indicated that the initial assessment she challenged, operating from 1 October 2005, was no longer in force, having been superseded by a later assessment from 3 October 2006. Consequently, the condition stipulated in section 98B, requiring an administrative assessment to be in force, was not met.

Paragraph 13 of the mother’s Amended Initiating Application was dismissed.

Orders

Orders of the court

Paragraph 13 of the mother’s Amended Initiating Application filed on 9 September 2009 is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Section 103VA provides:Appeal to AAT on decisions relating to percentages of care (1) A party to a review aggrieved by a decision of the SSAT under this Part relating to a party's percentage of care for a child may apply to the AAT for review of the decision. (2) In subsection (1): "decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975. (Emphasis added) Counsel for the mother maintains that the provisions of sections 111, 112 and 98S of the Child Support (Assessment) Act 1989 clearly give the mother the ability to apply to the Court for leave to ask the Child Support Registrar to exercise the discretion under section 98S. The submissions on behalf of the father are that such an application, made in the present circumstances by the mother, is a sham because the mother is in effect seeking to overcome the difficulties the mother faces by her failure to pursue the appropriate avenues for review of the Registrar’s decision and her failure to obtain an extension of time to do so. Submissions made on behalf of the father include reliance upon the procedures set out in Part VII and Part VIIA of the Child Support (Registration and Collection) Act 1988 in particular those provisions which set out the procedures for an internal objection to decisions of the Registrar about the particulars of an administrative assessment of child support (see in particular sections 80 to 93 inclusive of that Act). On behalf of the father it is therefore submitted that this Court does not have jurisdiction in these particular circumstances to exercise the discretion provided in section 112 of the Child Support (Assessment) Act 1989. The Court has the power to grant leave for the Registrar to make a determination under section 98S if an application is made under section 111. Section 111 relates to applications for leave in respect of a child support period that is more than 18 months and less than seven years earlier than the day on which the application under the section is made. The mother is seeking leave to make an application for periods beginning in October 2005. The periods are therefore within the provisions of section 111. Under section 98S the Registrar can make a determination which varies the various factors set out in that section including a determination varying a parent’s child support percentage (section 98S(1)(f)). The significant fact however is that section 98B specifically requires that the carer may request a departure from an administrative assessment of child support “… at any time when an administrative assessment is in force in relation to a child” (Emphasis added). The first assessment which the mother challenges (and about which she now seeks a departure by the Registrar) is the assessment annexed to a letter to the mother dated 4 October 2005, being the assessment which operated from 1 October 2005. The mother’s own submissions indicate that this assessment is no longer in force. She has received a further assessment being the assessment operating from 3 October 2006 which was received by letter to the mother dated 20 October 2006.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.