RAMSEY & RAMSEY - [2012] FMCAfam 739

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RAMSEY & RAMSEY

[2012] FMCAfam 739

CHILD SUPPORT – Enforcement – Agreement – Child Support Agreement – application for stay – application to set aside Child Support Agreement – exceptional circumstances – whether exceptional circumstances shown.

PRACTICE & PROCEDURE – Enforcement of financial orders – Family Law Rules 2004 r.20.05 does not apply in the Federal Magistrates Court – Federal Magistrates Court Rules 2001 Division 25B.2 applies to enforcement of financial orders and obligations.

Child Support (Assessment) Act 1989 (Cth), ss.3, 4, 80C, 136
Family Law Rules 2004, R. 20.05
Federal Magistrates Court Rules 2001, Sch. 3, Division 25B.2, Rule 25B.09
Federal Magistrates Court Amendment Rules 2012 (No.1)

Gallup & Gallup [2009] FMCAfam 839; (2010 FLC 98-50
Jones v Dunkel (1959) 101 CLR 298
Spinks & Spinks [2001] FamCA 197; (2001) 29 Fam LR 259; (2002) FLC 98-016; 159 FLR 88

Applicant:

MS RAMSEY

Respondent:

MR RAMSEY

File Number:

SYC 1968 of 2008

Judgment of:

Scarlett FM

Hearing date:

8 November 2012

Date of Last Submission:

15 December 2012

Delivered at:

Sydney

Delivered on:

14 August 2012

REPRESENTATION

Solicitors for the Applicant:

Barkus Doolan Kelly

Counsel for the Respondent:

Mr Batey

Solicitors for the Respondent:

Watts McCray

ORDERS

The Application by the Respondent for a Stay of the operation of the Child Support Agreement between the parties dated 2 March 2010 is dismissed.
The Application by the Respondent for a Stay of the Enforcement Summons filed on 2 September 2011 is dismissed.
The Applicant is granted leave to file and serve an Application in a Case seeking an order for payment of the amounts owing under the Child Support Agreement between the parties dated 2 March 2010 under the provisions of Rule 25B.09 within twenty-one (21) days.

IT IS NOTED that publication of this judgment under the pseudonym Ramsey & Ramsey is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 1968 of 2008

MS RAMSEY

Applicant

And

MR RAMSEY

Respondent

REASONS FOR JUDGMENT

Application

This is an Application to enforce payments due under a Child Support Agreement. The Respondent seeks interim orders staying the operation of the Child Support Agreement and staying the operation of the Enforcement Summons. On a final basis he seeks an order setting the agreement aside.

Background

The parties were married on (omitted) 1996 and separated on 26 January 2007. They were divorced by means of an Order made on 20 May 2008.
There are two children of the marriage. Y was born on (omitted) 1999 and X was born on (omitted) 2001. The children live with their mother, who is the Applicant in these proceedings. Y attends (omitted) School and X attends (omitted) School.
On 2 March 2010 the parties entered into Consent Orders in the Family Court of Australia at Sydney resolving the property and parenting issues between them. On that same day they entered into a Binding Child Support Agreement, which provided that…

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

AGLC: RAMSEY & RAMSEY [2012] FMCAfam 739
Case: [2012] FMCAfam 739
Decision Date

CaseChat Overview and Summary

The matter before the Court was an Application to enforce payments under a Binding Child Support Agreement (BCSA). The Respondent sought interim orders staying the operation of the BCSA and the Enforcement Summons. On a final basis, he sought an order setting the agreement aside. The Applicant, in response, sought orders enforcing payment under the BCSA. The Respondent claimed exceptional circumstances arose after the BCSA was signed, which he submitted warranted the setting aside of the agreement. The Court considered the evidence and submissions and found that the Respondent had not demonstrated that any of the claimed circumstances were exceptional. The Court also found that the Respondent had failed to discharge the onus of showing that the claimed circumstances had arisen since the agreement was signed. The Court dismissed the Respondent's interim and final applications and granted the Applicant leave to file and serve an Application in a Case seeking an order for payment of the amount owing under the BCSA.

Orders