Maher and Walsh

[2016] FCCA 2932

FEDERAL CIRCUIT COURT OF AUSTRALIA

MAHER & WALSH [2016] FCCA 2932

Catchwords:
FAMILY LAW – Setting aside a Binding Child Support Agreement – no exceptional circumstances – enforcement of Binding Child Support Agreement – mother seeking for father to pay private school fees.

Legislation:

Australian Child Support Commentary

Child Support (Assessment) Act 1989, ss.95(3), 136(2)

Family Law Act 1975

Cases cited:

Jessup & Jessup [2010] FMCAfam 124

McNicol & McNicol [2009] FMCAfam 1034

Applicant: MS MAHER

Respondent: MR WALSH

File Number: BRC 9510 of 2012

Judgment of: Judge Cassidy

Hearing date: 19 September 2016

Date of Last Submission: 19 September 2016

Delivered at: Brisbane

Delivered on: 16 November 2016

REPRESENTATION

The Applicant appeared in person

The Respondent appeared in person

ORDERS

1. That the husband pay the wife $3,923.76 plus interest being the sum owing pursuant to the Child Support Agreement dated 13 February 2013, by on before 12 December 2016.

2. That the husband pay the wife the sum of $8,110 plus any further sum for school fees that have accrued for the 2016 year, by on or before 12 December 2016.

3. That in the event that the husband does not pay the payments by the set date in accordance with paragraphs 1 and 2 hereof the husband forthwith sign all documents and do all things to affect the sale out of Court of the real property situated at Property L, title details (omitted) in the Parish of (omitted).

4. Upon the completion of the sale, the proceeds of the sale be applied:

   (i)firstly to pay all costs, commissions and expenses of the sale;

   (ii)secondly to discharge any mortgage and any other encumbrance affecting the real property;

   (iii)thirdly so much of the payment as is then outstanding together with interest thereon at a rate prescribed under the Family Law Act1975 (Cth) adjusted monthly from the date of this Order to the wife;

   (iv)fourthly the balance to the husband.

5. Pursuant to s.106A of the Family Law Act 1975 (Cth) if either party refuses or neglects to sign any document necessary to implement these orders within 14 days of a request in writing to do so, a Registrar of the Family Court of Australia is appointed to execute such document on behalf of that party.

6. That all extant applications be otherwise dismissed save that there be liberty to apply reserved to approach Judge Cassidy’s Associate within 28 days of the date of this order with respect to any application for costs arising out of these proceedings.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 9510 of 2012

MS MAHER

Applicant

And

MR WALSH

Respondent

REASONS FOR JUDGMENT

Introduction

1. The wife in her application seeks to enforce the Binding Child Support Agreement that the parties entered into on 13 February 2013.

2. The wife seeks a sum, as at 27 April 2016 (the date her application was filed),…