MULLEN & BARLEY

[2016] FCCA 2129

FEDERAL CIRCUIT COURT OF AUSTRALIA

MULLEN & BARLEY [2016] FCCA 2129

Catchwords:
FAMILY LAW – Consent application to discharge child support agreement.

Legislation:

Child Support Assessment Act 1989 (Cth)
Child Support Legislation Amendment Bill 1992 Explanatory Memorandum, Chapter 3, Div.4, Pt.7 and Chapter 4, Div.5, Pt.7
Child Support (Registration and Collection) Act 1988 (Cth), s.116(2)

Cases cited:

Keane & Keane & Ors [2013] FamCA 332

Applicant: MR MULLEN

Respondent: MS BARLEY

File Number: CAC 1789 of 2009

Judgment of: Judge Wilson

Hearing date: 16 June 2016

Date of Last Submission: 16 June 2016

Delivered at: Melbourne

Delivered on: 18 August 2016

REPRESENTATION

Solicitors for the Applicant: Mr S Bacon of Manby and Scott

Solicitors for the Respondent: Ms R. Jones of Slater and Gordon

THE COURT ORDERS BY CONSENT THAT –

1. Pursuant to section 136 of the Child Support Assessment Act 1989 (Cth), the binding child support agreement dated 4 August 2004 be terminated as and from 6 January 2012.

2. From 6 January 2012 until the date of a terminating event for X (“X”), born (omitted) 1998, the annual rate of child support payable by the respondent wife, Ms Barley, (“the respondent”) to the applicant husband, Mr Mullen (“the applicant”), for the support of X be set at $0.00 (Nil) per annum.

3. From 6 January 2012 until the date of a terminating event for Y (“Y”) the annual rate of child support payable by the applicant to the respondent for the support of Y be set at $0.00 (Nil) per annum.

4. In full and final settlement of the outstanding child support owed pursuant to orders 1, 2 and 3 hereof, the applicant pay the sum of $34,606.00 plus costs in the sum of $394.00 (“the payments”) to the respondent within 60 days of the date of these Orders (“the due date”).

5. In the event that the applicant fails to make the payments by the due date, the applicant do all such acts and things required to sell his property located at Property M in the state of New South Wales, title reference (omitted) (“the property”), with the sale proceeds to be applied as follows:

   (a)     first, to pay all costs, commissions and expenses of the sale;

   (b)     second, to pay any mortgages encumbering the property sold; and

   (c)third, such sum as remains owing to the respondent together with interest calculated at 10% per annum from the due date.

6. Pending the payment the applicant be restrained from further encumbering the property referred to in order 5 hereof save as required to access funds to make the payment.

7. There shall be liberty to apply with respect to the terms of the sale of the property in the event that order 5 is invoked.

8. The application filed 23 December 2015 by the husband for adult child maintenance for X be dismissed.

9. There be no order as to costs.

AND THE COURT NOTES THAT:

A.The Child Support Registrar is requested to remit any late payment penalties which have accrued in this matter.

B.These orders are intended to finalise all outstanding child support and adult child maintenance issues between the parties for the children X and Y, whether past, present or future and avoid further proceedings between them.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

CAC 1789 of 2009

MR MULLEN

Applicant

And

MS BARLEY

Respondent

REASONS FOR JUDGMENT

Introduction

1. On 16 June 2016, the legal representatives for the parties along with Ms Whittemore for the Child Support Registrar, appeared before me seeking the pronouncement of consent orders that, if made in accordance with their terms, would have the effect of discharging a child support agreement.

2. Very helpfully, on 16 June 2016 all legal representatives made submissions, Ms Whittemore in an amicus curiae capacity. Despite the application being by consent, the parties were required to persuade me that the orders sought should be made.

Synopsis

1. For the reasons that follow I am satisfied that it is just and equitable and otherwise proper to make the orders sought. Accordingly, I make orders in terms of the minutes provided by the parties.

Relevant factual setting

1. Ms Barley (“the wife”), aged 47 and Mr Mullen (“the husband”), aged 42 shared a de facto relationship of over eight years between 1994 and 2002. Two children were born to them, X now 18 and Y now 16 (collectively “the children”).

2. When the children were much younger, this proceeding came before a state magistrate on 4 August 2004, who ordered that the parties were to enter into a child support agreement pursuant to which the father was to pay the sum of $223.00 per week each Monday after the agreement was executed. The orders provided that in case of default, the mother was at liberty to relocate to (omitted) subject to certain conditions.

3. The factual scenario advanced by the wife told of the husband being required to pay the mother $11,596.00 annually in relation to the children. The wife said the husband complied with the child support agreement from inception until a date in 2007 when payments stopped. The wife deposed in affidavit material filed in this proceeding that she was under considerable financial hardship by reason of the husband’s failure to pay the child support so she decided to seek orders permitting her relocation with the children to (omitted), orders a magistrate duly made on 8 November 2010.

4. On 6 January 2012, both children flew from (omitted) so as to spend time with the husband in (omitted). However, only one returned, Y. In support of a recovery application returnable in January 2012, as at

   
    

   6 January 2012 the husband owed the wife $34,606.89 in child-support entitlements. The mother sought payment of that sum in the proceeding before me. A certificate for that amount was produced pursuant to s.116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Act”).

5. No real purpose is served in descending into the milieu of contradicted assertions made between the husband and the wife either since 2004 or 2007 (when payments stopped) or in 2012 (when the debt was capped at $34,606.89).

6. For present purposes, the issue for me is whether to approve the proposal discharging the child-support arrangement. The son has now attained his majority and the daughter is soon to turn 18. Both the husband and the wife, through their legal representatives, urged me to make the order sought. Ms Whittemore neither opposed nor consented to the orders, advocating instead (quite properly) that ultimately, the decision to discharge the child-support agreement was a matter for me alone. That position also corresponded to my reading of the legislative requirements.

The legislative requirements

1. The provisions of s.116 of the Act govern the factual situation of this case. Exceptional circumstances must be shown so as to permit a judge in my shoes to make the orders sought in this case. The phrase “exceptional circumstances”, like its counterparts in legislation throughout the Commonwealth of Australia, does not admit of easy definition. I am prepared to proceed on the interpretation given to the phrase by the Honourable Justice Watts of the Family Court of Australia in Keane & Keane & Ors.[1] In the passages below I have endeavoured to explain how I have applied the facts of this case to his Honour’s distillation of principle on point.

   [1] [2013] FamCA 332

2. In addition to meeting the criteria of “exceptional circumstances” and hardship, the court must be satisfied that in the exercise of its discretion, such an order should be made.

3. Here, the exceptional circumstance was, in the main, that in January 2012 one of the children moved permanently from the wife and thereafter resided permanently with the husband. It followed that one of the purposes of fixing the monetary sum stipulated in the consent orders in 2004 evaporated on and from January 2012.

4. Since January 2012 the parties have conducted themselves, agreeably as it happens, on the basis that one child lived with one parent and the other child lived with the other, the expenses of each child being met by the parent with whom that child lived.

5. I agree with the submission that it would not be just to require the husband to pay child support for two children on the premise that each lived with the wife when in fact and in reality only one child had lived with the mother since January 2012.

6. The consent orders formulated by the parties asked me to approve provision for a zero sum from the husband from January 2012 to date. That reflected the period during which each parent had been responsible for expenses associated with the child who lived with that parent.

7. In view of the financial position of the parties, it seems to me that hardship to both parents would be the consequence of my refusing the orders they sought.

8. In formulating these reasons I have paid careful attention to statements of principle in respect of the legislation relevant to this application and I have considered other earlier judicial pronouncements upon it, including those of judges of this court. Ms Whittemore provided me with the explanatory memorandum that accompanied the Child Support Legislation Amendment Bill 1992 which I have read Chapter 3, Div.4, Pt.7 and Chapter 4, Div.5, Pt.7.

9. To my mind the orders proposed are just and equitable. I am satisfied that it is appropriate, in the exercise of my discretion, to make the order sought. Accordingly, I make orders in accordance with the minutes of consent orders that the parties themselves signed.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 18 August 2016