Petrone & Petrone - [2024] FedCFamC2F 1038

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Petrone & Petrone [2024] FedCFamC2F 1038

File number(s): SYC 80 of 2017

Judgment of: JUDGE BOYLE

Date of judgment: 2 August 2024

Catchwords:
FAMILY LAW - CHILD SUPPORT – Enforcement of a purported Binding Child Support Agreement – Whether the Binding Child Support Agreement is a valid agreement – Binding Child Support agreement found to be void ab initio.

FAMILY LAW - CHILD SUPPORT – Departure Application – Orders sought in the alternative for a Departure of Child Support Assessment – Procedural fairness – Where application not properly pleaded – Application dismissed.

Legislation:
Child Support (Assessment) Act 1989

Child Support (Registration and Collection) Regulations 2018

Cases cited:
Bassett & Teale [2016] FCCA 2177

Child Support Registrar v AFS19 [2021] FCAFC 207

Thorby & Goldberg [1964] HCA 41; (1964) 112 CLR 597

Division: Division 2 Family Law

Number of paragraphs: 77

Date of hearing: 14 & 15 March 2024

Place: Sydney

Counsel for the Applicant: Mr Bunning

Solicitor for the Applicant: Guazzo Finlayson Legal

Counsel for the Respondent: Mr Ford

Solicitor for the Respondent: O'Loan Family Law
ORDERS

SYC80 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR PETRONE

Applicant

AND:
MS PETRONE

Respondent

ORDER MADE BY:

JUDGE BOYLE

DATE OF ORDER:

2 AUGUST 2024

THE COURT ORDERS THAT:
1.The binding child support agreement document, signed by Mr Petrone on 18 November 2016 and Ms Petrone on 1 December 2016 is void ab initio.
2.The Amended Enforcement application filed by the mother 23 March 2023 is dismissed.
3.The response filed by the mother 20 December 2023 is dismissed.
4.The mother has leave to file an application for departure of child support assessment within 28 days.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE:

The parties are in dispute with respect to a Binding Child Support Agreement signed by the father on 18 November 2016, and the mother on 1 December 2016.
The mother seeks payment of arrears and interest pursuant to a Binding Child Support Agreement through an Amended Enforcement Application filed 23 March 2023. Orders 1, 2 and 3 of that application are pressed.
The father filed an…

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 Petrone & Petrone

Details

AGLC: Petrone & Petrone [2024] FedCFamC2F 1038
Case: [2024] FedCFamC2F 1038
Decision Date: 2 August 2024

CaseChat Overview and Summary

Mr Petrone brought an application seeking enforcement of a Binding Child Support Agreement (BCSA) that he and Ms Petrone had entered into in 2016. Ms Petrone responded by arguing that the agreement was void and, in the alternative, sought a departure of child support assessment. The Federal Circuit and Family Court of Australia considered both the validity of the BCSA and the procedural fairness of Ms Petrone's application for a departure assessment.

The court first determined whether the BCSA was a valid agreement under the Family Law Act 1975. The court found that the agreement was void ab initio due to procedural irregularities in its execution. The court concluded that Mr Petrone had not complied with the requirements for a valid BCSA, and thus the agreement was not legally binding. Consequently, the court dismissed Ms Petrone's application for enforcement of the BCSA. The court then considered the alternative application for a departure of child support assessment. The court found that Ms Petrone's application was not properly pleaded, as it did not sufficiently detail the grounds for the departure. As a result, the application was also dismissed. However, the court granted Ms Petrone leave to file a properly pleaded application for departure within 28 days.

The court declared the BCSA void ab initio and dismissed both the enforcement and departure applications. Ms Petrone was granted leave to refile her departure application within a specified timeframe. The court's decision emphasised the importance of compliance with procedural requirements in family law matters, particularly in relation to BCSAs and applications for departure assessments.

Orders

Orders of the court

SYC80 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR PETRONE

Applicant

AND:

MS PETRONE

Respondent

ORDER MADE BY:

JUDGE BOYLE

DATE OF ORDER:

2 AUGUST 2024

THE COURT ORDERS THAT:

1. The binding child support agreement document, signed by Mr Petrone on 18 November 2016 and Ms Petrone on 1 December 2016 is void ab initio.

2. The Amended Enforcement application filed by the mother 23 March 2023 is dismissed.

3. The response filed by the mother 20 December 2023 is dismissed.

4. The mother has leave to file an application for departure of child support assessment within 28 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	SYC 80 of 2017
Judgment of:	JUDGE BOYLE
Date of judgment:	2 August 2024
Catchwords:	FAMILY LAW - CHILD SUPPORT – Enforcement of a purported Binding Child Support Agreement – Whether the Binding Child Support Agreement is a valid agreement – Binding Child Support agreement found to be void ab initio. FAMILY LAW - CHILD SUPPORT – Departure Application – Orders sought in the alternative for a Departure of Child Support Assessment – Procedural fairness – Where application not properly pleaded – Application dismissed.
Legislation:	Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Regulations 2018
Cases cited:	Bassett & Teale [2016] FCCA 2177 Child Support Registrar v AFS19 [2021] FCAFC 207 Thorby & Goldberg [1964] HCA 41; (1964) 112 CLR 597
Division:	Division 2 Family Law
Number of paragraphs:	77
Date of hearing:	14 & 15 March 2024
Place:	Sydney
Counsel for the Applicant:	Mr Bunning
Solicitor for the Applicant:	Guazzo Finlayson Legal
Counsel for the Respondent:	Mr Ford
Solicitor for the Respondent:	O'Loan Family Law

SYC80 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR PETRONE Applicant
AND:	MS PETRONE Respondent

ORDER MADE BY:	JUDGE BOYLE
DATE OF ORDER:	2 AUGUST 2024