MARTYN & MARTYN - [2020] FamCA 526

FAMILY COURT OF AUSTRALIA

MARTYN & MARTYN

[2020] FamCA 526

FAMILY LAW – CHILD SUPPORT – Binding child support agreement – Where the father seeks an order setting aside a binding child support agreement –Where the father seeks an order extinguishing the arrears payable under the binding child support agreement – Where the father owns a business that has been significantly impacted by the COVID-19 pandemic – Whether there are exceptional circumstances which relate to the father – Whether the father will suffer hardship if the binding child support agreement is not set aside – Orders made that the binding child support agreement be set aside – Application to extinguish arrears dismissed.

FAMILY LAW – COSTS – Costs of the Independent Children’s Lawyer – Where the Independent Children’s Lawyer seeks that the parties each pay half of the costs of the Independent Children’s Lawyer – Where the parties each assert that they will suffer financial hardship if required to pay half the costs of the Independent Children’s Lawyer – Orders made for the parties to pay, within 12 months, half the costs of the Independent Children’s Lawyer.

Child Support (Assessment) Act 1989 (Cth) ss 80CA(1), 136(2)(d), 141(1)(h),(n),(p)
Evidence Act 1995 (Cth) s 79
Family Law Act 1975 (Cth) s 117, 68L
Family Law Rules 2004 (Cth) r 19.18(1)(a)

Balzano & Balzano (2010) FLC 98-048
CDJ v VAJ (No 2) (1998) 197 CLR 172
De Roma v De Roma (2013) 49 Fam LR 226
Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123
Gahen & Gahen (No 2) [2013] FamCA 936
In the marriage of Whitford and Whitford (1979) FLC 90-612
Keane v Keane (2013) 50 Fam LR 120
Masters v Cheyne (2016) 56 Fam LR 314
Nada & Nettle (Costs) (2014) FLC 93-612
Stoian & Fiening (Costs) [2014] FamCA 944
Venson & Venson (No 2) [2010] FamCA 963

APPLICANT:

Mr Martyn

RESPONDENT:

Ms Martyn

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

FILE NUMBER:

SYC

6514

2016

DATE DELIVERED:

1 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

1, 2 and 4 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Spain

SOLICITOR FOR THE APPLICANT:

Lama Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Cairns

SOLICITOR FOR THE RESPONDENT:

Sharah & Associates Solicitors and Conveyancers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Ladopoulos

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid

Orders

That, pursuant to s 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth), the binding child support agreement between Mr Martyn (“the father”) and Ms Martyn (“the mother”) dated 16 August 2012 be set aside as of the date of these Orders.
That within 12 months of the date of these Orders, the mother and father each pay to Legal Aid the sum of $5,642.60 as payment of the costs of the Independent Children’s Lawyer in the proceedings.

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

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.

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Details

AGLC: MARTYN & MARTYN [2020] FamCA 526
Case: [2020] FamCA 526
Decision Date: 1 July 2020

CaseChat Overview and Summary

In the matter of *Martyn & Martyn*, the father sought to set aside a binding child support agreement and extinguish arrears payable under that agreement. The mother was the respondent. The proceedings were heard by McClelland DCJ.

The court was required to determine whether exceptional circumstances existed that related to the father, and whether the father would suffer hardship if the binding child support agreement were not set aside. Additionally, the court considered the costs of the Independent Children’s Lawyer, with both parties asserting they would suffer financial hardship if required to pay half of those costs.

McClelland DCJ reasoned that the father's business had been significantly impacted by the COVID-19 pandemic, constituting exceptional circumstances. Consequently, the court ordered that the binding child support agreement be set aside. However, the application to extinguish the arrears payable under the agreement was dismissed. Regarding costs, the court ordered that both the mother and father each pay half of the costs of the Independent Children’s Lawyer within 12 months of the date of the orders.

Orders

Orders of the court

That, pursuant to s 136(2)(d) of the Child Support (Assessment) Act 1989 (Cth), the binding child support agreement between Mr Martyn (“the father”) and Ms Martyn (“the mother”) dated 16 August 2012 be set aside as of the date of these Orders.

That within 12 months of the date of these Orders, the mother and father each pay to Legal Aid the sum of $5,642.60 as payment of the costs of the Independent Children’s Lawyer in the proceedings.

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

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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