FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARLEY & DELL & ANOR | [2017] FCCA 570 |
| Catchwords: CHILD SUPPORT – Interim hearing for summary dismissal – application for orders sought very general – effect to side-step administrative pathway – no merit in proceeding to trial. |
| Legislation: Australian Constitution, s.75(3) Child Support (Assessment) Act 1989 (Cth), ss.4(2)(c), 12(2AA), 74, 75(4), 80, 89, 95(6), 98(2), 107, 116, 117, 141(1)(n) Child Support Registration and Collection Act (Cth), ss.71A, 71C, 71D, 104, 104(9), 111B, 111C, 113, 113A |
| Cases cited: Bagala & Bagala [2009] FMCAfam 953 |
| Applicant: | MR MARLEY |
| First Respondent: | MS DELL |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 6935 of 2009 |
| Judgment of: | Judge Curtain |
| Hearing date: | 26 July 2016 |
| Date of Last Submission: | 26 July 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 24 March 2017 |
REPRESENTATION
| Solicitor Advocate for the Applicant: | Mr Bacon |
| Solicitors for the Applicant: | Manby and Scott |
| Counsel for the First Respondent: | Ms Devine |
| Solicitors for the First Respondent: | Victoria Legal Aid |
| Solicitor Advocate for the Second Respondent: | Ms Whittemore |
| Solicitors for the Second Respondent: | Mills Oakley |
ORDERS
The application filed 29 October 2015 in the Melbourne Magistrate’s Court and transferred to this Court be dismissed pursuant to:
(a)Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth); and
(b)Rule 13.10(a), (b) and (c) Federal Circuit Court Rules 2001 (Cth)
Should any party seek an Order for costs they have liberty to contact my Associate for an appropriate hearing date.
IT IS NOTED that publication of this judgment under the pseudonym Marley & Dell & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6935 of 2009
| MR MARLEY |
Applicant
And
| MS DELL |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is a Child Support Application filed on the 29th October 2015, in the Melbourne Magistrate’s Court and transferred to this Court.
The Applicant is a Mr Marley (“(Mr Marley”) who was born on (omitted) 1970, and is therefore aged 46 years. He is a self-employed (occupation omitted) by occupation. The Respondent is a Ms Dell who was born on (omitted) 1965, and is aged 51 years. She is a (occupation omitted) by occupation.
They were married on (omitted) 1994, and…
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- Case
- [2017] FCCA 570
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether it possessed the jurisdiction to make the declaratory orders sought by the applicant, particularly in light of the applicant's failure to exhaust the available administrative appeals process under the relevant child support legislation. The court also considered whether the case was analogous to previous decisions where declarations or other orders had been made concerning child support matters.
Judge Curtain dismissed the application, finding that the applicant had not followed the standard administrative steps laid out in the Child Support legislation and had conceded that the entire appeals process had not been completed. While acknowledging the court's power to make declarations of right under section 17A of the *Federal Circuit Court of Australia Act 1999* and to give declaratory judgments under rule 17.05(b) of the *Federal Circuit Court Rules 2001*, the judge distinguished the present case from *Hewett & Johnston* [2012] FMCAfam 1079, where enforcement proceedings related to a clear overpayment had been initiated. The judge also found *MNR & MEA* [2004] FMCAfam 619, where a declaration was sought regarding the interpretation of a Child Support Agreement, to be factually and legally distinguishable. The court concluded that the applicant's request for a vague order or declaration was inappropriate given the failure to exhaust administrative remedies.
The application was dismissed pursuant to section 17A of the *Federal Circuit Court of Australia Act 1999* and rules 13.10(a), (b), and (c) of the *Federal Circuit Court Rules 2001*. Parties seeking costs were granted liberty to contact the Associate for an appropriate hearing date.
Orders
Orders of the court
1.
The application filed 29 October 2015 in the Melbourne Magistrate’s Court and transferred to this Court be dismissed pursuant to:
(a) Section 17A of the Federal Circuit Court of Australia Act 1999 (Cth); and
(b) Rule 13.10(a), (b) and (c) Federal Circuit Court Rules 2001 (Cth)
2.
Should any party seek an Order for costs they have liberty to contact my Associate for an appropriate hearing date.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Mr Bacon then referred to section 16 of the Federal Circuit Court of Australia Act 1999 which provides:Declarations of right(1) The Federal Circuit Court of Australia may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed. and he also referred to rule 17.05(b) of the Federal Circuit Court Rules 2001 which also provides:Disposal of proceedingThe Court may, in relation to a decision of a question under this Part:… (b) give judgment, including a declaratory judgment; … Mr Bacon also referred to rule 25B.13(a) of the same Rules which provides:General enforcement powers of CourtThe Court may make any of the following orders:(a) an order declaring the total amount owing under an obligation; He submitted that this and other Courts have made orders of the type he was seeking in his application and referred to the case of Hewett & Johnston [2012] FMCAfam 1079 where orders were made, (not declarations), because the payer was found to have overpaid child support, (and had not intended these monies to be a gift). In Hewett’s case, the Child Support Registrar had commenced enforcement proceedings that related to a clear overpayment. This case is distinguishable on its facts and law from this matter and has no relevance to this hearing. The Respondent then argued that the agency has completely miscalculated his income and attributed to him an income vastly in excess of what his actual income is or was. Now that may or may not be the situation, but that in my view does not allow him to ignore the normal standard administrative steps that are laid out in the Child Support legislation and then come to this place to seek a vague order or declaration. I note that Mr Bacon conceded that his client did not… “go through the entire appeals process”. I was then referred to the case of MNR & MEA [2004] FMCAfam 619, where a payer pursuant to a Child Support Agreement sought a declaration regarding the meaning of a particular expression in the parties’ Child Support Agreement. His Honour Justice Walters (then Federal Magistrate) said at page 17 of his judgment:“93. That the core issue in the proceedings now before me is the interpretation of the relevant provisions of the Agreement is apparent when it is understood that the father is, in reality, endeavouring to prevent the CSA from enforcing the terms of the Agreement as it understands them to be. Although the father is the Applicant, he could just as easily have been the respondent to an enforcement application. In my opinion, the form of the application should not be determinative of the jurisdictional issue. The parties disagree as to the interpretation of the relevant clause. It must, therefore, be interpreted (or alternatively, the Court must attempt to interpret it).94. In my opinion, the combined effect of s.95(6), s.98(2) and s.141(1)(n) of the Assessment Act is to grant to the Court jurisdiction to clarify the meaning of the Agreement -- by declaration, if necessary. Section 95 is relevant because the Agreement has been accepted by the Child Support Registrar, and because it includes provisions as to periodic and non-periodic payments (indeed, the two forms of payment are "alternatives" within the one set of provisions). Section 98 may be relevant because the father has applied to discharge or set aside the Agreement, and because the orders sought by the father can arguably be regarded as having the effect of discharging or varying the relevant provisions of the Agreement. Section 141(1)(n) is relevant because it empowers the Court to "make any other order that the Court considers appropriate" whilst it is exercising its other powers under the Assessment Act.”