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Piper and Talbot and Anor

Piper and Talbot and Anor

Case [2021] FCCA 511 18 March 2021

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Administrative Law

Family Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

PIPER & TALBOT & ANOR

[2021] FCCA 511

Catchwords:
CHILD SUPPORT – Application seeking judicial review of a child support decision of the Administrative Appeals Tribunal – question of law – where a s.90D Financial Agreement entered into by the parties was accepted by the Child Support Agency as a Binding Child Support Agreement for the purposes of Part 6 of the Child Support (Assessment) Act 1989 (Cth) – where Appellant argued the Administrative Appeals Tribunal erred in failing to determine whether there was an agreement in between the parties as determined by the principles of law and equity for the purposes of ss 81 and 90C of the Child Support (Assessment) Act 1989 (Cth), erred in concluding the Certificates of Legal Advice met the requirements of s 80C of the Child Support (Assessment) Act 1989 (Cth), erred in failing to consider the nature and extent of the legal advice actually provided and erred in failing to consider that as the provisions of the agreement relating to child support failed to comply with s 84(6) of the Child Support (Assessment) Act 1989 (Cth), the child support provisions did not constitute a Binding Child Support Agreement

HELD: All grounds of appeal upheld. Declaration made that the Section 90UD Financial Agreement entered into between the Appellant and First Respondent dated 14 April 2016 does not constitute a Binding Child Support Agreement pursuant to the Child Support (Assessment) Act 1989 (Cth).

Legislation:

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Child Support Legislation Amendments (Reform of the Child Support Scheme – New Formula and Other Measures Bill of 2008). (Explanatory Memorandum)
Federal Circuit Court of Australia Act 1999 (Cth)

Cases cited:

Nettleship & Nettleship [2016] FCCA 2947
Bond v Child Support Registrar & Anor [2018] FCCA 422
Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194
Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10
Haritos v Federal Commissioner of Taxation [2015] FCAFC 92
Senior & Anderson [2011] FamCAFC 129
Sadler & Sadler & Anor (SSAT Appeal) [2011] FMCAfam 1335
MNR & MEA [2004] FMCAfam 619
Ermogenous v Greek Orthodox Community of SA Inc [2002] 209 CLR 95
Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors(No 2) [2012] VSC 239
Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309
Black & Black [2008] FamCAFC 7
Hoult & Hoult [2013] FamCAFC 109
Logan & Logan [2013] FamCAFC 151
Rankin & Rankin [2017] FamCAFC 29

Applicant:

MR PIPER

First Respondent:

MS TALBOT

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLG 146 of 2019

Judgment of:

Judge Bender

Hearing date:

2 October 2020

Date of Last Submission:

2 October 2020

Delivered at:

Melbourne

Delivered on:

18 March 2021

REPRESENTATION

Counsel for the Applicant:

Dr. Robin Smith

Solicitors for the Applicant:

Kenna Teasdale

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 Piper and Talbot and Anor

Details

AGLC: Piper and Talbot and Anor [2021] FCCA 511
Case: [2021] FCCA 511
Decision Date: 18 March 2021

CaseChat Overview and Summary

In the matter of *Piper and Talbot and Anor*, the Appellant sought judicial review of a decision made by the Administrative Appeals Tribunal concerning child support. The central dispute revolved around a financial agreement entered into by the parties, which had been accepted by the Child Support Agency as a Binding Child Support Agreement under the *Child Support (Assessment) Act 1989* (Cth).

The Appellant raised several legal issues for determination by the court. These included whether the Tribunal erred in failing to assess the existence of an agreement according to principles of law and equity for the purposes of sections 81 and 90C of the Act, whether the Certificates of Legal Advice satisfied the requirements of section 80C, and whether the Tribunal adequately considered the nature and extent of the legal advice provided. Crucially, the Appellant argued that if the child support provisions of the agreement failed to comply with section 84(6) of the Act, then those provisions could not constitute a Binding Child Support Agreement.

The court found in favour of the Appellant on all grounds. It reasoned that the Tribunal had erred in its assessment of the agreement. The court applied the principles of the *Child Support (Assessment) Act 1989* (Cth), particularly concerning the requirements for a Binding Child Support Agreement and the associated legal advice. The court concluded that the financial agreement, despite its prior acceptance by the Child Support Agency, did not meet the statutory criteria to be considered a Binding Child Support Agreement.

Consequently, the court made a declaration that the Section 90UD Financial Agreement entered into between the Appellant and the First Respondent on 14 April 2016 does not constitute a Binding Child Support Agreement pursuant to the *Child Support (Assessment) Act 1989* (Cth).

Orders

Orders of the court

The section 90UD Financial Agreement entered into between the Appellant and the First Respondent dated 14 April 2016 does not constitute a Binding Child Support Agreement pursuant to the Child Support (Assessment) Act 1989 (Cth).

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.

Citations

AGLC Citation

Piper and Talbot and Anor [2021] FCCA 511

Most Recent Citation

Cao & Trong [2022] FedCFamC1F 754

Cases citing this decision · 2 of 2 shown

Cao & Trong
[2023] FedCFamC1A 40 Para 38

…t was necessary for the parties to actually receive legal advice to the effect set out. The appellant relied upon a decision of Piper & Talbot & Anor [2021] FCCA 511. The first instance decision was subject to appeal and was determined by the Full Court of the Federal Court on 19 November 2021: see Child Support R…
Cao & Trong
[2022] FedCFamC1F 754

…v Australia and New Zealand Banking Group Ltd (2016) 258 CLR 525 Panwar v Panwar (2020) 63 Fam LR 44 Piper v Talbot [2021] FCCA 511 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Berchet (1794) 89 ER 480 Richter v Richter (2021) 63 Fam LR 102 Roy Morgan Research Centre Pty Ltd v Co…

View all 2 citing cases →

Cases cited in this decision · 19 of 19 shown

Bond v Child Support Registrar & Anor
[2018] FCCA 422 Para 2

…In the matter of Bond v Child Support Registrar & Anor [2018] FCCA 422 Judge Brown quite properly noted that: “an appeal to this Court from an administrative tribunal in a child support matter does not constitute a re-hearing of the case on its merits.”…
Rankin & Rankin
[2017] FamCAFC 29 Para 1

…t as if they were a statement made by a court under section 125 in an order made under section 124 (see subsection 95(3)). 38. In Rankin & Rankin [2017] FamCAFC 29, the Full Court considered a failure by the trial judge to comply with s 125 of the Assessment Act. While the trial judge had ordered the payer to pay bo…
Nettleship & Nettleship
[2016] FCCA 2947 Para 2

…The Tribunal made specific reference to the matter of Nettleship & Nettleship [2016] FCCA 2947 in which the Court, when reviewing whether an agreement met the requirements of s 80C of the Assessment Act, “looked to the “form and content” of the agreement in determining whether it complied with paragraphs 80C(2)(a)…
Haritos v Commissioner of Taxation
[2015] FCAFC 92 Para 7

…ich identifies the alleged error in law, as a mere assertion will not enliven the Court’s jurisdiction ( Haritos v Federal Commissioner of Taxation [2015] FCAFC 92 at [62]).…
Henriques & Hatzis (SSAT Appeal)
[2014] FCCA 1194 Para 4

…His Honour then reiterated his findings in Henriques & Hatzis (SSAT Appeal) [2014] FCCA 1194 as to what amounted to an error of law, indicating that: “an administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law if it: · fails…
Child Support Registrar & Crabbe & Anor
[2014] FamCAFC 10 Para 6

…ent in Bond v Child Support Registrar & Anor (supra), the Full Court of the Family Court in the matter of Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 at [54] provided a summary of the principles (and applicable authorities) which are relevant to the review of administrative decisions in the child sup…
GARRA-MARSH & GARRA-MARSH (NO.3)
[2012] FMCAfam 1144 Para 3

…The Court was also referred to the decision of Federal Magistrate Scarlett as he then was in Garra-Marsh v Garra-Marsh No 3 [2012] FMCAfam 1144. Having considered the provisions of the Assessment Act in relation to Binding Child Support Agreements, His Honour held at paragraph [49] as follows: [49] “It seems clear tha…
Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd (No 2)
[2012] VSC 239 Para 2

…Counsel made reference to the matter of Sunland Waterfront (BVI) Ltd & Anor v Prudentia Investments Pty Ltd & Ors (No 2) [2012] VSC 239 where the Court summarised the nature of recitals as follows: “[109] In this context, it is helpful to consider the nature of recitals in some further detail. In broad terms, in…
Sadler and Sadler and Anor (SSAT Appeal)
[2011] FMCAfam 1335 Para 5

…applied contract law to determine the validity of a Child Support Agreement, reference was made to the matter of Sadler & Sadler & Anor (SSAT Appeal) [2011] FMCAfam 1335 and MNR & MEA [2004] FMCAfam 619, the Appellant argued that for an agreement to meet the requirements of a contract according to the principles of la…
Senior & Anderson
[2011] FamCAFC 129 Para 3

…The Appellant referred the Court to the decision of Justice Strickland in Senior & Anderson [2011] FamCAFC 129 where in the context of Financial Agreements his Honour stated as follows in relation to the term “agreement”: [89] “Agreement” is also not defined [in the Family Law Act] and thus carries its ordinary and n…
Black & Black
[2008] FamCAFC 7 Para 2

…In B v B [2008] FamCAFC 7 the Full Court when considering the validity of a Binding Financial Agreement held at paragraphs [40] to [42] as follows:- “[40]…Care must be taken in interpreting any provision of the Act that has the effect of ousting the jurisdiction of the court. The amendments to the legislation that…
MNR & MEA
[2004] FMCAfam 619 Para 5

…the validity of a Child Support Agreement, reference was made to the matter of Sadler & Sadler & Anor (SSAT Appeal) [2011] FMCAfam 1335 and MNR & MEA [2004] FMCAfam 619, the Appellant argued that for an agreement to meet the requirements of a contract according to the principles of law and equity, the parties must ha…
CGM investments Pty Ltd v Chelliah
[2003] FCA 79 Para 8

…ing whether the parties intended to be bound by it. The Court was referred to the decision of Air Great Lakes Pty Ltd v K S Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309.…
Ermogenous v Greek Orthodox Community of SA Inc
[2002] HCA 8 Para 7

…The Court was referred to the High Court decision of Ermogenous v Greek Orthodox Community of SA Inc [2002] 209 CLR 95 where the High Court stated: “Although the word ‘intention’ is used in this context, it is used in the same sense as it is used in other contractual contexts. It describes what it is that wou…
Minister for Immigration and Ethnic Affairs v Wu Shan Liang
[1996] HCA 6 Para 6

…iahi [2001] 65 ALD 141 at [34]. [2] Al Miahi (supra). [3] Al Miahi (supra). [4] Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259 at [271].…
Collector of Customs v Pozzolanic Enterprises Pty Ltd
[1993] FCA 456 Para 3

…a) his Honour makes reference to what was said by the Full Court in Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280, as follows: “ …the distinction between the task of the Administrative Appeals Tribunal – a fact finding decision making tribunal – and a court, such…
Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd
[1993] FCA 322 Para 3

…In paragraph [84] of Bond v Child Support Registrar & Anor (supra) his Honour makes reference to what was said by the Full Court in Collector of Customs v Pressure Tanker Pty Ltd and Pazzolanic Enterprises Pty Ltd (1993) 43 FCR 280, as follows: “ …the distinction between the task of the Administrative Appeals Tribunal – a fact finding decision making tribunal – and a court, such as thi…
Logan & Logan
[2013] FamCAFC 151 Para 1

…The Full Court in the matter of Logan v Logan [2013] FamCAFC 151 were, deciding whether a Binding Financial Agreement should be set aside on the basis that a party had not received the requisite legal advice. Their Honours cited with approval the Full Court decision in Hoult (supra) . In paragraph [49] their Honours…
FamCAFC 151 and Hoult & Hoult
[2013] FAMCAFC 109 Para 9

…Statement of Independent Legal Advice in the context of a Binding Financial Agreement was considered by the Full Court in the matter of Hoult v Hoult [2013] FamCAFC 109.…

Legislation cited in this decision · 6

Administrative Appeals Tribunal Act 1975 (Cth)
1 mention
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Child Support (Registration and Collection) Act 1988 (Cth)
1 mention
Evidence Act 1995 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention (from Para 2)
Federal Circuit Court of Australia Act 1999 (Cth)
1 mention