Somers & Somers - [2013] FCCA 162

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOMERS & SOMERS

[2013] FCCA 162

Catchwords:
CHILD SUPPORT – Child Support Agreement – application for enforcement of child support agreement – where respondent contends that child support agreement has been terminated – where parties have three children – where one child attained the age of 18 years during the currency of the proceedings.
CHILD SUPPORT – Departure Application – where Applicant seeks Departure Order in the alternative to Child Support Agreement – cross application by Respondent for Departure Order.

Legislation:
Acts Interpretation Act 1901 (Cth) ss.15AA, 15AB
Child Support (Assessment) Act 1989 (Cth) ss.12, 80CA, 80D, 84, 95, 116, 139

Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)
Family Law Act 1975 (Cth) s.66L

Cases cited:
Daley & Daley [2009] FMCAfam 398; (2009) 41 Fam LR 351; FLC 98-039
Leroy & Moreau [2010] FMCAfam 903

Applicant:

MS SOMERS

Respondent:

MR SOMERS

File Number:

SYC 3026 of 2008

Judgment of:

Judge Scarlett

Hearing dates:

18 November 2010, 5 August, 2 December 2011

Date of Last Submission:

21 December 2011

Delivered at:

Sydney

Delivered on:

3 May 2013

REPRESENTATION

Counsel for the Applicant:

The Applicant appeared in person

Solicitors for the Applicant:

Karras Partners Lawyers (until 5 August 2011)

Counsel for the Respondent:

Mr Lethbridge SC

Solicitors for the Respondent:

Slade Manwaring Solicitors

ORDERS

The Court declares that the Child Support Agreement entered into by the Applicant and the Respondent on 2 November 2005 remains in force in respect of the children [Y] and [Z].
The Court declares that the Child Support Agreement entered into by the Applicant and the Respondent on 2 November 2005 has been terminated in respect of [X] with effect from 15 March 2011.
The Applicant is to file and serve an affidavit setting out details of the arrears currently claimed under the Enforcement Summons filed on 12 March 2010 within 21 days.
The Respondent is given leave to file and serve any affidavit setting out the facts upon which he seeks to rely in respect of the claimed arrears within a further period of 14 days.
If either party seeks to press an order for costs that party is to file and serve an affidavit setting out details of the costs and disbursements claimed within 28 days.
The proceedings are otherwise adjourned to Monday 17 June 2013 for further mention at 10:00 am.

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

This is an Application by the mother to enforce a child support agreement to provide support for the parties’ children, [X], [Y] and [Z]. In the alternative, the mother seeks a departure Order.
The Respondent father denies that he has an obligation under the Agreement, which he asserts…

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.

Continue reading Somers & Somers

Details

AGLC: SOMERS & SOMERS [2013] FCCA 162
Case: [2013] FCCA 162
Decision Date: 3 May 2013

CaseChat Overview and Summary

In the matter of *Somers & Somers*, heard by Judge Scarlett, the applicant and respondent sought declarations regarding the enforceability and termination of a Child Support Agreement dated 2 November 2005. The dispute centred on whether the agreement remained in force for all three of their children, [X], [Y], and [Z], or if it had been terminated in relation to one of them. The proceedings also involved an enforcement summons concerning claimed arrears.

The court was required to determine two primary legal issues: first, whether the Child Support Agreement of 2 November 2005 remained in force in respect of all three children, [X], [Y], and [Z]; and second, the effective date of any termination of the agreement concerning any of the children. The court also had to address the outstanding matter of arrears claimed under an enforcement summons.

Judge Scarlett declared that the Child Support Agreement remained in force for children [Y] and [Z]. However, the court found that the agreement had been terminated in respect of child [X] with effect from 15 March 2011. The court then made orders for the applicant to provide details of the claimed arrears, granting the respondent leave to respond, and setting a date for further mention of the proceedings.

Orders

Orders of the court

The Court declares that the Child Support Agreement entered into by the Applicant and the Respondent on 2 November 2005 remains in force in respect of the children [Y] and [Z].

The Court declares that the Child Support Agreement entered into by the Applicant and the Respondent on 2 November 2005 has been terminated in respect of [X] with effect from 15 March 2011.

The Applicant is to file and serve an affidavit setting out details of the arrears currently claimed under the Enforcement Summons filed on 12 March 2010 within 21 days.

The Respondent is given leave to file and serve any affidavit setting out the facts upon which he seeks to rely in respect of the claimed arrears within a further period of 14 days.

If either party seeks to press an order for costs that party is to file and serve an affidavit setting out details of the costs and disbursements claimed within 28 days.

The proceedings are otherwise adjourned to Monday 17 June 2013 for further mention at 10:00 am.

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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