Penman and Morgan and Anor - [2017] FamCA 735

FAMILY COURT OF AUSTRALIA

PENMAN & MORGAN AND ANOR

[2017] FamCA 735

FAMILY LAW – CHILD SUPPORT – Where the father seeks a stay in respect of the collection of payments by the Child Support Registrar – Where the father has not discharged the onus of establishing a proper basis for the granting of a stay and that application is dismissed – Where the Court has no jurisdiction to make the orders the father seeks for the Child Support Registrar to remove any late penalties applied to child support payments and for the Child Support Agency to remove court costs from any child support payments – Where an order sought for the Child Support Agency to file detailed accounts of all payments is dismissed as it is an application for pre-suit discovery in support of the application for the Child Support Registrar to remove late penalties – Where the father seeks an order that the parties inform the Child Support Agency that he has 100 per cent care of the parties’ child – Where that application is made without merit and is dismissed as there is a level of controversy surrounding the current cost percentage – Where an order is made for the father to pay the Child Support Registrar’s costs

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Paxton & Child Support Registrar and Anor (Costs) [2016] FamCAFC 158

APPLICANT:

Mr Penman

RESPONDENT:

Ms Morgan

2^nd RESPONDENT:

Child Support Registrar

INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

FILE NUMBER:

SYC

902

2011

DATE DELIVERED:

20 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

6 September 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INTERVENOR:

Child Support Registrar

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Rowley & Associates

Orders

Orders 1, 2, 3, 4 and 8 as sought by the father in his Amended Urgent Application in a Case filed on 19 March 2017 be dismissed.
The father pay the Child Support Registrar’s costs in respect of the father’s Amended Urgent Application in a Case filed on 19 March 2017 so far as that application applied for orders 1, 2, 3, 4 and 8, on a party/party basis as agreed or assessed.
Within twenty one (21) days the father file an affidavit setting out the evidence upon which he seeks to rely in support of his Further Amended Initiating Application for Final Orders filed 23 March 2016 (the first set of Orders 1-4 on page 10, Orders 1, 2 and 3 on page 14 and Orders 4-7 on page 15), together with written submissions.
Within a further twenty one (21) days the Child Support Registrar and the mother file any affidavit upon which they seek to rely, together with written submissions.
Applications 2, 3 and 4 on page 10 and applications 2 and 3 on page 14 and 4-7 on page 15…

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

Case: [2017] FamCA 735
Decision Date: 20 September 2017

CaseChat Overview and Summary

In the matter of *Penman and Morgan*, Watts J considered an application by the father concerning child support. The father sought various orders, but the court ultimately dismissed several of these, specifically orders 1, 2, 3, 4, and 8, as sought in his Amended Urgent Application filed on 19 March 2017.

The central legal issues before the court involved the father's claims for specific child support orders and the appropriate costs associated with these applications. The court was also required to determine the procedural path forward for the remaining aspects of the father's application.

Watts J reasoned that the father's urgent application for orders 1, 2, 3, 4, and 8 was not substantiated, leading to their dismissal. Consequently, the father was ordered to pay the Child Support Registrar's costs for that specific part of his application. The court then directed the father to file an affidavit and written submissions within twenty-one days in support of his Further Amended Initiating Application for Final Orders filed on 23 March 2016, which encompassed several other proposed orders. Following this, the Child Support Registrar and the mother were given a further twenty-one days to file their respective affidavits and submissions. The remaining applications from the father's 23 March 2016 filing were scheduled for a hearing on 19 December 2017.

Orders

Orders of the court

Orders 1, 2, 3, 4 and 8 as sought by the father in his Amended Urgent Application in a Case filed on 19 March 2017 be dismissed.

The father pay the Child Support Registrar’s costs in respect of the father’s Amended Urgent Application in a Case filed on 19 March 2017 so far as that application applied for orders 1, 2, 3, 4 and 8, on a party/party basis as agreed or assessed.

Within twenty one (21) days the father file an affidavit setting out the evidence upon which he seeks to rely in support of his Further Amended Initiating Application for Final Orders filed 23 March 2016 (the first set of Orders 1-4 on page 10, Orders 1, 2 and 3 on page 14 and Orders 4-7 on page 15), together with written submissions.

Within a further twenty one (21) days the Child Support Registrar and the mother file any affidavit upon which they seek to rely, together with written submissions.

Applications 2, 3 and 4 on page 10 and applications 2 and 3 on page 14 and 4-7 on page 15 of the Further Amended Initiating Application filed 23 March 2016 be listed for hearing on 19 December 2017.

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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