P and D - [2003] FMCAfam 461

FEDERAL MAGISTRATES COURT OF AUSTRALIA

P & D

[2003] FMCAfam 461

CHILD SUPPORT – Payment of maintenance – child support order made in District Court of New Zealand (Family Division) and registered in Australia with Child Support Agency – husband sought under Regulation 36 of the Family Law Regulations that the order made in New Zealand be discharged together with all arrears – elements of cause and action estoppel and res judicata – whether an order pursuant to s.66W(2)(b) of the Family Law Act should be made to decrease or vary the arrears accrued prior to registration with the Child Support Agency – husband's financial circumstances diminished – wife in better financial position – husband pay outstanding sum to wife to free the husband from any vulnerability to the Child Support Agency – garnishee order made.

Family Law Act 1975 (Cth), ss.66L(2), 66L(3), 66S(1), 66W, 66W(1), 66W(2)(a), 66W(2)(b)
Child Support (Registration & Collection) Act 1988 (Cth), ss.30, 72(A)
Family Law Rules 1984, Order 18, Order 33, Rule 47(4)
Family Law Regulations, Regs 36, 36(1), 37 and 38

Vakal v Vakal (1997) FLC 92-743
Heethuis v van Jenderen (1999) FLC 005
Rothsterin v Child Support Registrar (1994) FLC 92-490
Port of Melbourne Authority v Anshen Pty Limited (1981) 147 CLR 589
Blair v Curran (1939) 62 CLR 464
Stein v Black (2000) FLC 93-005
Kemeny v Kemeny (1998) FLC 92-806
Marginson v Blackburn Borough Council (1939) 2 KB 426
P v D (2000) Fam CA 894
"Res Judicata" Spencer, Bower, Turner and Handley, Butterworths, 3rd edition, at page 251, paragraph 443

Applicant:

A P

Respondent:

A D

File No:

MLM6798 of 2002

Delivered on:

12 December 2003

Delivered at:

Melbourne

Hearing date:

29 August 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

In person

Counsel for the Respondent:

In person

Solicitors for the Respondent:

In person

ORDERS

That pursuant to s.66W(2)(b) of the Family Law Act 1975 the order dated 23 February 1988 in the New Zealand District Court and registered in the Melbourne Magistrates Court on 22 August 1990 be varied as from the 8 April 1993 by decreasing the arrears to be paid under the order from the 9 April 1993 to the sum of $100.
That the application of the father that order (1) of the orders made on
1 August 2002 staying or enforcement processes by the Child Support Agency be forthwith discharged.
The applications of the father filed 31 July 2002 seeking a stay of the operation of s.72(a) of the Child Support (Registration & Collection) Act 1989 and the application filed 8 August 2002 seeking discharge of the order of 23 February 1998 and return of $542 from the respondent is dismissed.
Pursuant to order 33, rule 47(4):
(a)(for and on behalf of the Victorian WorkCover Authority), the garnishee, deduct from the benefits payable to the father the sum of $30 per week ("the normal deduction rate") in satisfaction of sums payable to the mother pursuant…

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 P and D

Details

AGLC: P and D [2003] FMCAfam 461
Case: [2003] FMCAfam 461
Decision Date: 12 December 2003

CaseChat Overview and Summary

In the Family Court of Australia, P and D contested a matter concerning child support and the enforcement of a New Zealand court order registered in Melbourne. The dispute involved the enforcement of an order made in the New Zealand District Court on 23 February 1988, which was registered in the Melbourne Magistrates Court on 22 August 1990. The father sought to vary the arrears owed from the 9 April 1993, stay enforcement processes by the Child Support Agency, and discharge an order made on 23 February 1998. The mother opposed these applications.

The court was required to determine whether the New Zealand order should be varied to reduce the arrears, whether enforcement processes by the Child Support Agency should be stayed, and whether the order made on 23 February 1998 should be discharged and the sum of $542 returned to the father. The court also needed to decide on the method of deduction of child support from the father's earnings and the administrative expenses that could be deducted by the garnishee. The court considered the legislative framework under the Family Law Act 1975 and the Child Support (Registration & Collection) Act 1989, as well as the implications for the father's protected earnings rate.

The Family Court of Australia varied the New Zealand order to reduce the arrears to be paid from 9 April 1993 to $100. The court discharged the stay on enforcement processes by the Child Support Agency and dismissed the father's applications to stay the operation of s.72(a) of the Child Support (Registration & Collection) Act 1989 and to discharge the order of 23 February 1998. Additionally, the court ordered the Victorian WorkCover Authority to deduct $30 per week from the father's earnings in satisfaction of the sums payable to the mother, ensuring the father's earnings were not reduced below $380 per week. The court also allowed the garnishee to deduct reasonable administrative expenses, not exceeding $10 per week, from the normal deduction rate. The mother was required to serve a sealed copy of the orders on the garnishee within 14 days of service of the orders.

Orders

Orders of the court

That pursuant to s.66W(2)(b) of the Family Law Act 1975 the order dated 23 February 1988 in the New Zealand District Court and registered in the Melbourne Magistrates Court on 22 August 1990 be varied as from the 8 April 1993 by decreasing the arrears to be paid under the order from the 9 April 1993 to the sum of $100.

That the application of the father that order (1) of the orders made on

1 August 2002 staying or enforcement processes by the Child Support Agency be forthwith discharged.

The applications of the father filed 31 July 2002 seeking a stay of the operation of s.72(a) of the Child Support (Registration & Collection) Act 1989 and the application filed 8 August 2002 seeking discharge of the order of 23 February 1998 and return of $542 from the respondent is dismissed.

Pursuant to order 33, rule 47(4):

(a) (for and on behalf of the Victorian WorkCover Authority), the garnishee, deduct from the benefits payable to the father the sum of $30 per week ("the normal deduction rate") in satisfaction of sums payable to the mother pursuant to this order and the order of the Family Court of Australia made on 24 May 2001 in the sum of $15,000.

(b) The father's earnings shall not be reduced by compliance with this order below the sum of $380 per week ("the protected earnings rate").

(c) the garnishee, pay such working amounts to the mother or at such other address or by such other means as she indicates to the garnishee.

(d) The Garnishee may deduct from the normal deduction rate referred to in paragraph (a) such administrative expenses as are reasonably incurred but no more than the sum of $10 per week.

(e) The date upon which the payments shall commence is the next payment day to the father following service of this order upon them.

(f) The mother cause a sealed copy of this order to be served on the Garnishee in accordance with order 18 of the Family Law Rules as soon as practicable 14 days after service of sealed copy of these orders.

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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