Piper and Talbot and Anor - [2021] FCCA 511

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.

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Details

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

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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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