[1999] FamCA 699
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA
AT MELBOURNE Appeal No. SA 29L of 1998
File No. ML 12180 of 1996
IN THE MATTER OF:
CHRISTOPHER MICHAEL SUTHERLAND REID
Appellant Husband
- and -
SUSAN REID
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: Nicholson C.J., Ellis and Steele JJ.
DATE OF HEARING: 2 March 1999
DATE OF JUDGMENT: 2 March 1999
APPEARANCES:
Mr. C. M. Reid of 2/53 First Street BLACK ROCK VIC 3193 appeared in person.
Mr. Connolly of Counsel instructed by Marshalls and Dent Solicitors, Level 12, 459 Little Collins Street, MELBOURNE VIC 3000) appeared on behalf of the respondent wife.
Name of Appeal Reid and Reid
Appeal Number SA 29L of 1998
Date of Appeal Hearing 2 March 1999
Date of Judgment 2 March 1999
Coram Nicholson CJ, Ellis and Steele JJ
Catchwords: Child Support - Application for departure from Administrative Assessment - Jurisdiction of Trial Judge - Jurisdiction incorrectly assumed and exercised - paras 115(b) and (c) Child Support Assessment Act 1989.
Child Support - Application for departure from Administrative Assessment - Refusal by Review Officer to make a determination notified by Deputy Child Support Registrar - Power of Registrar to delegate power and functions - Whether Review Officer was in fact a delegate of Registrar - ss 98A, 98EA, 149, and 149(1A) Child Support Assessment Act 1989
The husband applied for leave to appeal and, if leave was granted, to appeal against the orders of Kay J made on 16 April 1998 granting a departure from administrative assessment. The primary attack was that the orders were made without jurisdiction and it was on that issue only that the Full Court heard argument.
There was a child support assessment made by the Child Support Agency in respect of the period from 11 December 1997 to 30 June 1998. This was objected to by the wife who filed a Form 63 on 9 January 1998 seeking a departure order that the administrative assessment be increased so that the husband paid to the wife child support for the child in the sum of 1263.99 per week. The assessment that had been made was for a much lesser sum.
The next step in the matter appeared to have been taken by the husband who made an application for a review of the child support assessment, the application being dated 27 January 1998. In that application, he sought that the annual rate of child support be reduced to $3000 per year.
When the matter came before Kay J on 30 January 1998, counsel for the wife submitted that his Honour had jurisdiction to hear the application notwithstanding that there had been no determination by a Review Officer because there were residence and contact proceedings remaining before the Court and that the case fell within s 115(c) of the Child Support Assessment Act 1989. That paragraph permits a court to hear an application where an application is…
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CaseChat Overview and Summary
The central legal issue before the Full Court was whether the consent order, which had been made by a single judge, could be set aside on the grounds of unfairness or lack of full understanding by one of the parties. The court was required to consider the principles governing the setting aside of consent orders in family law, particularly in light of the strong presumption that parties are bound by agreements they have freely entered into. This involved an examination of the circumstances under which a court might depart from its usual practice of upholding consent orders.
The Full Court affirmed the general principle that consent orders are binding and should not be lightly disturbed. Their Honours noted that while courts retain a discretion to vary or set aside orders, this discretion is exercised cautiously, particularly with consent orders. The court found that the appellant had not presented sufficient evidence to demonstrate that the consent order was unfair or that she lacked a full understanding of its terms at the time of its making. The principles applied emphasised the importance of finality in litigation and the need for parties to be held to their agreements, absent compelling reasons such as fraud, duress, or a fundamental misunderstanding that vitiated consent.
The appeal was dismissed, and the original consent order was upheld.
Orders
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