Marsden and Saunders - [2016] FCCA 1557

FEDERAL CIRCUIT COURT OF AUSTRALIA

MARSDEN & SAUNDERS

[2016] FCCA 1557

Catchwords:
CHILD SUPPORT – Stay – Application for stay – application to set aside Child Support Agreement – one child – where child has lived with Applicant since September 2012 – child formerly lived with respondent when parties entered into binding child support agreement.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.12, 80C, 80D, 136

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

Cases cited:

Cheyne & Masters (SSAT Appeal) [2014] FCCA 856

Daley & Daley [2009] FMCAfam 398

Keane & Keane (2013) 50 Fam LR 120; [2013] FamCA 332

Simpson & Hamlin (1984) 9 Fam LR 1040; FLC 576

Applicant:

MR MARSDEN

Respondent:

MS SAUNDERS

File Number:

SYC 500 of 2014

Judgment of:

Judge Scarlett

Hearing dates:

14 April & 23 June 2015

Date of Last Submission:

23 June 2015

Delivered at:

Sydney

Delivered on:

28 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Graham

Solicitors for the Applicant:

Nash Allen Williams & Wotton

Counsel for the Respondent:

Mr Blank (direct brief)

ORDERS

IT IS DECLARED THAT the Child Support Agreement made between the parties on 19 July 2002 is no longer in force with effect from 14 December 2010.
The Binding Child Support Agreement between the parties of 14 December 2010 is set aside with effect from 5 September 2012.
All other Applications for orders under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 are dismissed.
The Application for Orders under the Family Law Act 1975 contained in the Further Amended Response of 13 April 2015 is transferred to the docket of Judge Kemp for mention on 5 December 2016.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 500 of 2014

MR MARSDEN

Applicant

And

MS SAUNDERS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Father of a child named X who was born on (omitted) 2001 for orders setting aside all existing child support agreements in respect of the child with effect from 5^th September 2012, the date when he asserts the child commenced living permanently with him.
The Mother opposes that Application and seeks that the end date of the Agreement should be extended to 27^th September 2019. She also seeks to recover an amount of arrears in the sum of $$8,709.49 as at 10^th September 2014.

Orders Sought

The Applicant, by his Further Amended Initiating Application of 9^th April 2015, seeks the following Orders:
1. That under Section 136(2)(d) of the Child Support (Assessment) Act 1989 the Child Support Agreement in relation to the child X born (omitted) 2001 made on 3 September 2010 be set aside from 5 September 2012.
2. That under section 136(2)(d) of the Child Support (Assessment) Act 1989 the Child Support Agreement in relation to the child X…

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.

Continue reading Marsden and Saunders

Details

AGLC: Marsden and Saunders [2016] FCCA 1557
Case: [2016] FCCA 1557
Decision Date: 28 June 2016

CaseChat Overview and Summary

In the matter of *Marsden and Saunders*, heard by Judge Scarlett, the dispute concerned the validity and enforceability of two child support agreements. The parties had entered into a Child Support Agreement on 19 July 2002, and subsequently a Binding Child Support Agreement on 14 December 2010. The proceedings involved applications relating to these agreements and other applications for orders under the *Child Support (Assessment) Act 1989* and the *Child Support (Registration and Collection) Act 1988*.

The court was required to determine whether the initial Child Support Agreement of 2002 remained in force and, critically, whether the Binding Child Support Agreement of 2010 should be set aside. Further, the court had to consider the disposition of all other applications made under the relevant child support legislation.

Judge Scarlett declared that the Child Support Agreement of 19 July 2002 was no longer in force from 14 December 2010. The court then set aside the Binding Child Support Agreement of 14 December 2010, with effect from 5 September 2012. All other applications made under the *Child Support (Assessment) Act 1989* or the *Child Support (Registration and Collection) Act 1988* were dismissed. An application for orders under the *Family Law Act 1975*, filed on 13 April 2015, was transferred to Judge Kemp for a mention on 5 December 2016.

Orders

Orders of the court

IT IS DECLARED THAT the Child Support Agreement made between the parties on 19 July 2002 is no longer in force with effect from 14 December 2010.

The Binding Child Support Agreement between the parties of 14 December 2010 is set aside with effect from 5 September 2012.

All other Applications for orders under the Child Support (Assessment) Act 1989 or the Child Support (Registration and Collection) Act 1988 are dismissed.

The Application for Orders under the Family Law Act 1975 contained in the Further Amended Response of 13 April 2015 is transferred to the docket of Judge Kemp for mention on 5 December 2016.

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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