NAJ & TT
[2005] FMCAfam 720
•12 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| NAJ & TT | [2005] FMCAfam 720 |
| CHILD SUPPORT – Agreements – agreement unable to be located – reliance on Child Support Agency printout – printout accepted under s.98 for purpose of registering agreement. |
| Child Support Assessment Act 1989, s.98 |
| Applicant: | NAJ |
| Respondent: | TT |
| File Number: | MLM 7074 of 2005 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 12 December 2005 |
| Date of Last Submission: | 12 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Pannifex |
| Solicitors for the Applicant: | Micahel Kelly & Co |
| Counsel for the Respondent: | Mr Edney |
| Solicitors for the Respondent: | CE Family Lawyers |
ORDERS
The Child Support Agreement dated 26 May 1997 entered into between NAJ and TT in relation to the child J born … October 1995 be discharged.
The applicant mother be relieved of her responsibility of registering the Child Support Agreement.
The respondent father pay child support in accordance with the Child Support Agency assessment.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE REGISTRY |
MLM 7074 of 2005
| NAJ |
Applicant
And
| TT |
Respondent
REASONS FOR JUDGMENT
(Revised from transcript)
This is an application to vary a child support agreement. The parties have been able to negotiate a settlement of the matter with the assistance with their legal advisers. However, it was not possible to make orders in chambers as neither party possessed a copy of the child support agreement that they sought to vary.
Attempts have been made to obtain a copy from the Child Support Agency, without success. The applicant has tendered a bundle of documents from the Agency. It seems that the Agency's response to a request for a copy of the agreement was to provide a computer printout which an officer from the Child Support Agency says outlines the conditions of the agreement as the Agency have administered it.
I am told from the bar table and accept that the mother in this case attended upon the Child Support Agency and waited for some two hours without any success in an attempt to obtain a copy of the child support agreement. In the circumstances, it seems that no-one has the child support agreement and therefore a conundrum arises under section 98 of the Child Support (Assessment) Act 1989 (the Act), which requires that the agreement or the provisions of the agreement be registered in a court having jurisdiction under the Act before I would have power to discharge, suspend or vary the agreement.
The circumstances of this case are unusual. The parties do not have in their possession a copy of the child support agreement and the Child Support Agency has been unable to produce a copy. Neither party disputes that the terms of the agreement would be as set out in the Child Support Agency correspondence, an agreement which appears to have been enforced by the Child Support Agency since 1997. Both parties are consenting to a discharge of the agreement and a new regime being put in place.
I propose to accept, for the purpose of s.98(1)(b), Annexure NAJ2 to the affidavit of the mother, sworn 18 August, 2005, (which sets out the relevant provisions of the child support agreement as being an agreement about child support between the parties, made 30 April 1997 for periodic support for the child J born …October 1995, at $1,826.00 per annum commencing 19 February 1996 until the child attains 18). Accordingly, pursuant to s.98 of the Act, I have power to discharge, suspend or vary the agreement. Therefore, I proceed to consider the terms of the consent orders.
The parties seek a consent agreement discharging the child support assessment on the basis that a formula assessment by the Child Support Agency would be appropriate for the future. I note that in discharging the child support agreement, I should be satisfied that there are grounds for departure and that the proposed changes are just and equitable and otherwise proper. I am able to take into account the consent of the parties in this regard. In the circumstances of the case, the proposed outcome is to revert to the legislatively fixed standard. It also leaves open to the parties the administrative process for departure from the agreement in the future.
In the circumstances, I make orders in terms of the minutes of consent. However, I note that had this been a disputed matter, it seems to me that I would have been required to make orders setting a specific rate of child support, at least for a period. However, given that this is a consent arrangement, such strictures are not necessarily so great.
I therefore make orders in terms of the draft.
I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
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