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SALA & HABNER

SALA & HABNER

Case [2018] FCCA 2321 22 August 2018

Statutory Construction

Remedies

Family Law

Statutory Interpretation

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FEDERAL CIRCUIT COURT OF AUSTRALIA

SALA & HABNER

[2018] FCCA 2321

Catchwords:
CHILD SUPPORT – Binding child support agreement – court’s discretion to set aside binding child support agreement – exceptional circumstances – hardship –child will suffer hardship if binding child support agreement set aside – father’s circumstances not sufficiently “exceptional” to justify setting aside binding child support agreement – father incurred discretionary financial undertakings since his entry into binding child support agreement.

STATUTORY INTERPRETATION – Meaning in law of the word “exceptional circumstances” – ordinary construction – examination of relevant circumstances determines existence of exceptional circumstances – subject to particular statutory context.

Legislation:

Child Support (Assessment) Act 1989, s.136(2)(d)

Cases cited:

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27
An v Minister for Immigration and Citizenship (2007) 160 FCR 480
Baker v The Queen (2004) 223 CLR 513
BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958

Cabal v United Mexican States [2001] HCA 42

Carr v Western Australia (2007) 232 CLR 138
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194
Commissioner of State Revenue v Kimiora (2016) 309 FLR 277
Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297
CSJ17 v Minister for Immigration and Border Protection (2018) 328 FLR 431
Director of Public Prosecutions for Victoria v Le (2007) 232 CLR 562
Griffiths v The Queen (1989) 167 CLR 372

Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648

Hasim & Ors v Attorney General (Cth) (2013) 218 FCR 25
Hatcher v Cohn & Ors (2004) 139 FCR 425
Ho v Professional Services Review Committee No 295 [2007] FCA 388
House v The King (1936) 55 CLR 499
Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd [2000] VSC 415

In the matter of an application for bail by Michael Barbaro [2004] VSC 404

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309
Maan v Minister for Immigration and Citizenship (2009) 179 FCR 581
Minister for Immigration and Border Protection v SZVFW [2018] HCA 30
Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322
Norbis v Norbis (1986) 161 CLR 513
Northern Territory v Collins (2008) 235 CLR 619

Platt v Ong [1972] VR 197

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
R v Berchet [1794] EngR 1806
R v Kelly (Attorney General’s Reference No 53 of 1998) [2000] 1 QB 198
Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72
Southwest Water Authority v Rumble’s [1985] AC 609
Stevens v Kabushiki Kaisha Sony Computer Entertainment (2005) 224 CLR 193
Taylor v Public Service Board (NSW) (1976) 137 CLR 208
The Commonwealth v Baume (1905) 2 CLR 405
Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590

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: SALA & HABNER [2018] FCCA 2321
Case: [2018] FCCA 2321
Decision Date: 22 August 2018

CaseChat Overview and Summary

The case of *SALA & HABNER* concerned an application by the father to set aside a binding child support agreement. The mother sought to uphold the agreement. The matter came before Wilson J of the Family Court of Australia.

The primary legal issue before the Court was whether the father had established "exceptional circumstances" sufficient to justify setting aside the binding child support agreement, as contemplated by the relevant legislation. This required the Court to interpret the meaning of "exceptional circumstances" within the statutory context and to determine if the father's situation met that threshold.

Wilson J considered the ordinary meaning of "exceptional circumstances" and noted that their existence is determined by an examination of all relevant circumstances, viewed in light of the particular statutory context. The Court found that the father's financial circumstances, including discretionary financial undertakings he had incurred since entering into the agreement, did not rise to the level of "exceptional" as required by the legislation. Consequently, the Court determined that the threshold for setting aside the binding child support agreement had not been met.

Orders