MacGrath & MacGrath

Case [2022] FedCFamC1F 212


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

MacGrath & MacGrath [2022] FedCFamC1F 212

File number(s): SYC 4366 of 2020
Judgment of: HENDERSON J
Date of judgment: 5 April 2022 
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Proceedings – Where the respondent mother filed a special circumstances application with C Services for a change of assessment requiring the applicant to pay 50% of one of the parties children’s private school fees – Where the father sought an urgent stay of that on the basis that it would be an abuse of process as the mother has filed an application for a departure order under s 116 and 124 of the Child Support (Assessment) Act 1989 (Cth) in this Court as part of her final orders sought –– Finding that the child support proceedings were not an abuse of process – Stay application dismissed.

FAMILY LAW – JURISDICTION – Finding that this Court has jurisdiction to entertain this application – Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208 applied.

Legislation:

Child Support (Registration and Collection) Act 1988 (Cth) s 111C(3).

Child Support (Assessment) Act 1989 (Cth) ss 116, 124.

Family Law Act 1975 (Cth) s 79A

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106.

Alexander & Cambridge Credit Corp (1985) 2 NSWLR 685; (1985) 10 ACLR 42.

Amery & Kedrina (2021) FLC 94-023.

Cameos v Blizzard [2018] FamCA 811.

Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208

Clemett & Clemett (1981) FLC 91-013; [1980] FamCA 90.

Gallagher v Child Support Registrar [2021] FCCA 462.

In re MAJORY, A Debtor. Ex parte The Debtor V F.A. Dumont Ltd [1995] Ch 600; [1995] 2 WLR 1035.

Jennings Construction Limited v Burgundy Royale Investments Pty Ltd 161 CLR 681; (1986) 61 ALJR 102.

Jones v Child Support Registrar [2007] FCA 1732.

The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13.

Trahn & Long (No.2) [2008] FamCAFC 194.

Division: Division 1 First Instance
Number of paragraphs: 45
Date of hearing: 31 March 2022 
Place: Sydney
Counsel for the Applicant: Mr Gardiner
Solicitor for the Applicant: Dorter Family Lawyers & Mediators
Counsel for the Respondent: Mr Ahmad
Solicitor for the Respondent: Broun Abrahams Burreket

ORDERS

SYC 4366 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MACGRATH

Applicant

AND:

MS MACGRATH

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

5 APRIL 2022

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the applicant on 23 March 2022 is dismissed.

2.The applicant is granted leave to provide all material he has discovered and subpoenaed in this Court to C Services for prosecution of his response to the respondent’s Application to Change Assessment in Special Circumstances filed 22 December 2021.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for…

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AGLC
MacGrath & MacGrath [2022] FedCFamC1F 212
Case
[2022] FedCFamC1F 212
Decision Date

CaseChat Overview and Summary

The matter involved Mr. McGrath, the applicant, and Ms. McGrath, the respondent, in proceedings before Henderson J in Division 1 of the Federal Circuit and Family Court of Australia. The dispute centred on the respondent's application to C Services to change the assessment of child support payments, seeking a 50% contribution from the applicant towards the private school fees of one of their children. In response, the applicant sought an urgent stay of this application, arguing that it constituted an abuse of process given that the respondent had simultaneously filed an application for a departure order under sections 116 and 124 of the Child Support (Assessment) Act 1989 (Cth) in the same Court.

The legal issues before the Court included whether the child support proceedings were an abuse of process and whether the Court had jurisdiction to hear the application. The Court found that the proceedings were not an abuse of process and dismissed the stay application. It also found that the Court had jurisdiction to hear the matter, applying the principles established in Cirillo & Cirillo (No 4) [2022] FedCFamC1F 208. The Court noted that the simultaneous applications did not automatically amount to an abuse of process, and each application was considered on its own merits.

In dismissing the stay application, the Court granted the applicant leave to provide all material discovered and subpoenaed in this Court to C Services for the prosecution of his response to the respondent's application to change the assessment in special circumstances. This decision ensured that the Court's findings on jurisdiction and process were respected, and the parties could proceed with their respective applications in the appropriate forums.

Orders

Orders of the court

SYC 4366 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MACGRATH

Applicant

AND:

MS MACGRATH

Respondent

ORDER MADE BY:

HENDERSON J

DATE OF ORDER:

5 APRIL 2022

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the applicant on 23 March 2022 is dismissed.

2. The applicant is granted leave to provide all material he has discovered and subpoenaed in this Court to C Services for prosecution of his response to the respondent’s Application to Change Assessment in Special Circumstances filed 22 December 2021.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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