SOMERS & SOMERS

[2014] FCCA 128

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERS & SOMERS [2014] FCCA 128

Catchwords:
CHILD SUPPORT – Child Support Agreement – Application for enforcement – where some payments already made – whether agreement is a binding child support agreement – where some amounts have been paid by the Respondent – whether interest should be payable.

Legislation:
Child Support (Assessment) Act 1989 (Cth), ss.80C, 80CA, 80E, 80F, 139, 151B, 80G

Somers & Somers [2013] FCCA 162
Somers & Somers (No.2) [2013] FCCA 1992

Applicant: MS SOMERS

Respondent: MR SOMERS

File Number: SYC 3026 of 2008

Judgment of: Judge Scarlett

Hearing date: 11 November 2013

Date of Last Submission: 11 November 2013

Delivered at: Sydney

Delivered on: 28 January 2014

REPRESENTATION

The Applicant: In person

Solicitors for the Respondent: KDB Holmes

ORDERS

1. The Respondent is to pay to the Applicant the sum of $7,256.00 by way of monies due under a Child Support Agreement entered into between the parties on 2 November 2011.

2. The Respondent is allowed one (1) month to pay.

3. Any Application for costs is to be made within twenty-eight (28) days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 3026 of 2008

MS SOMERS

Applicant

And

MR SOMERS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother for enforcement of payments claimed to be due under a child support agreement entered into by the parties. An amount of $42,280.00 has already been paid by the Respondent father, who denies that any further amounts are outstanding.

Background

1. The history of litigation between the parties was set out in some detail in paragraphs [23] to [48] of an earlier decision, Somers & Somers[1].

   [1] [2013] FCCA 162

2. In brief, the parties were married on (omitted) 1989. They separated on (omitted) 2004 and were divorced on 24 March 2006.

3. There are three children of the marriage:

   a)X, born (omitted) 1993;

   b)Y, born (omitted) 1996; and

   c)Z, born (omitted) 1999.

4. X is now an adult.

5. The parties entered into a Child Support Agreement on 2 November 2005. The Agreement was registered with the Child Support Agency on 14 June 2006.

6. The Applicant commenced proceedings to enforce the Agreement on 12 March 2010 by filing an Enforcement Summons, seeking payment of an amount of arrears in the sum of $14,929.60 and continuing.

7. The Respondent filed an Application in a Case on 5 May 2010, seeking:

   a)a declaration that the Child Support Agreement had been terminated;

   b)orders enabling an accounting of monies overpaid by the Respondent to the applicant;

   c)an order requiring the Applicant to repay to the Respondent the amount of the overpayment;

   d)a stay of the Enforcement Summons; or

   e)in the alternative, the dismissal of the Enforcement Summons.

8. On 3 May 2013, the Court declared:[2]

   (1)     The Court declares that the Child Support Agreement entered into by the Applicant and the Respondent on 2 November 2005…