Percell and Mulroy and Anor

[2018] FamCA 683

FAMILY COURT OF AUSTRALIA

PERCELL & MULROY AND ANOR [2018] FamCA 683

FAMILY LAW – CHILD SUPPORT – Where the father seeks to recover alleged payments of child support pursuant to s 143 of the Child Support (Assessment) Act 1989 (Cth) – Where findings were previously made that during the relevant period the mother was not a parent who could properly apply to the Child Support Registrar for an administrative assessment of child support under s 25 of the Child Support (Assessment) Act 1989 (Cth) – Where the father has been unable to provide evidence in proper form to establish that he has paid child support to the Child Support Registrar for the relevant period – Where the father did not appear and did not provide this evidence – Where the father’s application is dismissed.

Child Support (Assessment) Act 1989 (Cth) ss 25, 136, 143

APPLICANT: Mr Percell

RESPONDENT: Ms Mulroy

INTERVENOR: Central Coast Family Law

FILE NUMBER: SYC 1379 of 2013

DATE DELIVERED: 30 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Johnston J

HEARING DATE: 30 July 2018

REPRESENTATION

FOR THE APPLICANT: No appearance for or on behalf of Mr Percell

FOR THE RESPONDENT: Ms Mulroy appeared in person

COUNSEL FOR THE INTERVENOR: Mr Othen

SOLICITOR FOR THE INTERVENOR: Central Coast Family Law

Orders

1. The Court notes that there is no appearance by Mr Percell who is the applicant in these child support proceedings.

2. That the father’s application contained at paragraphs 2, 3 and 4 of his Amended Application in a Case filed on 2 September 2016 be dismissed.

3. That the intervener serve a copy of these orders on Mr Percell.

It is ordered by consent

as between Ms Mulroy and central coast family law

1. DECLARE that pursuant to clause 1(c) of a Deed dated 22 December 2015 between Ms Mulroy and Central Coast Family Law (“the Deed”), Ms Mulroy has assigned all her rights in the costs order made 14 April 2015, and the assessment of those costs made 18 October 2017 to Central Coast Family Law.

2. ORDER that order 2 made 18 October 2017 is varied to delete the words “to Ms Mulroy” and substitute the words “to Central Coast Family Law” as follows:

   “2.In respect of the itemised account filed by Ms Mulroy on 12 November 2015 the amount payable by Mr Percell to Central Coast Family Law is $40,873.81.”

The court notes

A.Ms Mulroy consents to Orders 4 and 5 above.

B.Within 7 days of the date of making Orders 4 and 5 the Intervener has agreed to release the sum of $7,331.90 held in its trust account to Ms Mulroy or as she may direct in writing.

C.Except as otherwise provided herein, Ms Mulroy and the Intervener each release the other from all claims arising any way, to the extent permitted by law.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Percell & Mulroy and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 1379 of 2013

Mr Percell

Applicant

And

Ms Mulroy

Respondent

And

Central Coast Family Law

Intervenor

EX TEMPORE REASONS FOR JUDGMENT

1. I note that there is no appearance by Mr Percell (“the father”), who is the applicant in these child support proceedings.

2. Amongst orders sought by the father in his Amended Application in a Case, filed on 2 September 2016, are the following. Firstly, what he describes as a “stay of proceedings by the court stopping any actions of the Child Support Agency collecting any further child support from (him) pending a hearing for the collection of non‑entitled payment of child support from 2001 to 2011 in accordance with s 136 of the Child Support (Assessment) Act” (“CSAA”). I made such an order on an earlier occasion.

3. The father also sought a declaration to the effect that Ms Mulroy (“the mother”) was not a parent who could properly apply for administrative assessment of child support for the child J (“the child”) born in 2001 during the period from the child’s birth until April 2011, because she could not satisfy the requirements of s 25 of the CSAA. I made such a notation on 7 October 2016.

4. The father also sought an order in effect to recover all child support paid by him to the Child Support Registrar during the said period from 2001 to 2011, pursuant to s 143 of the CSAA.

5. The respondent to these child support proceedings is the mother.  The father and the mother are the parents of the child. Assessments of child support payable by the father for the child’s support have been made since approximately February 2001. 

6. On 13 June 2017, I noted a finding by me that during the period from 12 February 2001 to April 2011, the mother was not a parent who could properly apply to the Child Support Registrar for administrative assessment of child support for the said child because she was unable to satisfy the requirements of s 25 of the CSAA. I also made an order on 13 June 2017 that the father’s child support liability for the period be stayed and any enforcement action be stayed for this period.

7. The father informed the mother and the Court that he would seek orders to recover all child support paid by him for the child during the said period.  The father has been unable to provide evidence in proper form to establish that he has paid child support to the Child Support Registrar for the relevant period.  On several occasions I have adjourned these proceedings because the father said that he has been endeavouring to obtain the relevant payer account details from the Child Support Registrar. 

8. I informed the father on the last occasion, which was 27 April 2018, that in the event that he failed to provide the relevant evidence today, having granted him an adjournment to enable him to procure such evidence, the position would become clear, that is, that there were no monies paid by him to the Child Support Registrar which could be subject to recovery by him. So, in circumstances where the father has failed to appear at Court today, and he has not been able to prosecute his application, or to provide the relevant essential evidence, in my view, the appropriate course is for the Court to dismiss his application.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 30 July 2018.

Associate:   

Date:  6 September 2018