Telama and Telama (No.2) - [2018] FCCA 625

FEDERAL CIRCUIT COURT OF AUSTRALIA

TELAMA & TELAMA (No.2)

[2018] FCCA 625

Catchwords:
FAMILY LAW – Mother’s Application to enforce payment of Binding Child Support Agreement arrears – Father’s Application to set aside Binding Child Support Agreement and to discharge arrears.

Legislation:

Family Law Act 1975 (Cth), s.79A

Federal Circuit Court Rules (Cth), r.25B.13(a)

Child-Support (Assessment) Act 1989 (Cth), ss.80C(2), 80CA, 136(2)

Cases cited:

Re F: Litigant in Person Guidelines (2001) 161 FLR 189
Balzano & Balzano [2010] FamCAFC 11

Keane v Keane & Ors [2013] FamCA 332,50 Fam LR 120

Gavin v Garden [2011] FamCA190
Simpson & Hamlin (1984) FLC 91-576
Jones v Dunkell (1959) 101 CLR 298

Applicant:

MS TELAMA

Respondent:

MR TELAMA

File Number:

SYC 1450 of 2008

Judgment of:

Judge McGuire

Hearing date:

5 February 2018

Date of Last Submission:

5 February 2018

Delivered at:

Sydney

Delivered on:

1 May 2018

REPRESENTATION

Counsel for the Applicant:

Ms Spain

Solicitors for the Applicant:

Lander & Rogers

The Respondent:

Appeared in person

ORDERS

That the Court declares that the Respondent owes to the Applicant the sum of $375,127.29 pursuant to arrears accrued under a Binding Child Support Agreement entered into between the parties dated 2 April 2013.
That the Respondent pay to the Applicant the sum of $375,127.29 within 120 days of the date of these Orders provided that should the Respondent fail to make such payment then the Applicant have liberty to apply for the issue of a Third Party Debt Notice pursuant to Rule 25B.40 of the Federal Circuit Court Rules 2001.
That the Binding Child Support Agreement made between the parties and dated 2 April 2013 be set aside as from the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Telama & Telama (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC1450 of 2008

MS TELAMA

Applicant

And

MR TELAMA

Respondent

REASONS FOR JUDGMENT

The applicant mother brings an application to enforce a binding child-support agreement entered into on 2 April 2013. The parties agree, for the purposes of this application, that the respondent owes an amount of $375,127.29 in arrears pursuant to that agreement.
The respondent father applies to the Court for an order setting aside the relevant child support agreement.
The applications are heard together.
The mother is represented in these matters by solicitors and counsel. The father represents himself. The Court offered[1] Mr Telama assistance with procedure and an invitation to request such assistance at any time. Mr Telama did, however, present as an intelligent and articulate litigant, well versed in the procedure in this Court and understandably so given what he says is some 10 years of consistent litigation in this and the Family Court.
[1] Re F: Litigant in Person Guidelines (2001) 161 FLR 189
The mother relied on her affidavit affirmed 31 January 2018 and a sworn financial statement of the same date. She was subject to some…

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 Telama and Telama (No.2)

Details

AGLC: Telama and Telama (No.2) [2018] FCCA 625
Case: [2018] FCCA 625
Decision Date: 1 May 2018

CaseChat Overview and Summary

In *Telama and Telama (No.2)*, Judge McGuire of the Federal Circuit Court of Australia considered competing applications by the parties concerning a Binding Child Support Agreement dated 2 April 2013. The applicant mother sought declarations and orders for the enforcement of arrears accrued under the agreement, while the respondent father sought to have the agreement set aside and any arrears extinguished.

The court was required to determine whether the respondent owed the applicant a specific sum for arrears under the Binding Child Support Agreement and, if so, to make orders for payment. Concurrently, the court had to consider the respondent's application to set aside the agreement and discharge any accrued arrears.

The court found that the respondent owed the applicant the sum of $375,127.29 pursuant to arrears accrued under the Binding Child Support Agreement. The court also ordered that the agreement be set aside as from the date of the orders. The court declared that the respondent owes the applicant the sum of $375,127.29 and ordered that this sum be paid within 120 days, with liberty to the applicant to apply for a Third Party Debt Notice should the respondent fail to make the payment. The Binding Child Support Agreement was set aside from the date of the orders.

Orders

Orders of the court

That the Court declares that the Respondent owes to the Applicant the sum of $375,127.29 pursuant to arrears accrued under a Binding Child Support Agreement entered into between the parties dated 2 April 2013.

That the Respondent pay to the Applicant the sum of $375,127.29 within 120 days of the date of these Orders provided that should the Respondent fail to make such payment then the Applicant have liberty to apply for the issue of a Third Party Debt Notice pursuant to Rule 25B.40 of the Federal Circuit Court Rules 2001.

That the Binding Child Support Agreement made between the parties and dated 2 April 2013 be set aside as from the date of these Orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The applicant mother argues for the following orders:Declaration 1)That pursuant to section 25B.13(a) of the Federal Circuit Court Rules, a declaration that the Respondent owes the Applicant the sum of $375,127.29 pursuant to a binding child support agreement dated 2 April 2013.Orders 1)That the Respondent pay to the Applicant the sum of $384,390 (sic) within 60 days.2)If the Respondent defaults in making the payment referred to in Order 1, then pursuant to section 25B.11 of the Federal Circuit Court Rules, an order for the attachment of earnings and debts, including a Third Party Debt Notice.3)That the Applicant be granted liberty to apply to the Court in respect of enforcement. 4)That the respondent pay the applicant's costs of and incidental to this application. The respondent asks for the following orders: 1)The Binding Child Support Agreement entered into between the parties on 2 April 2013 be and is hereby set aside.2)The arrears under the Binding Child-Support Agreement be extinguished in full.3)Either: There be no departure from the administrative assessment for the support of the children of the marriage [X], [Y] and [Z].Or in the alternative: There be a departure from the administrative assessment for the support of the children of the marriage [X], [Y] and [Z] such that the Child Support Agency shall assume and apply a level of income for Ms Telama that is equal to the income used for Mr Telama, so as to properly allow for the financial resources available to Ms Telama and the children of the marriage.4)The remaining amount of the costs order made by Justice Fowler on 21 February 2011 be extinguished in full as compensation to Mr Telama for the breach by Ms Telama of the confidentiality provisions in paragraph 17 of the Binding Child-Support Agreement.5)There be no order for costs. It eventuated that no application for departure from administrative assessment was properly prosecuted before me. Further, the proposed order 4 is not a matter that was pursued and perhaps could not be before this Court. Consequently, the competing applications are simply the mother's enforcement application and the father’s application to set aside the child-support agreement and to discharge any arrears thereunder. Not surprisingly, these parties have an extensive litigious history. I borrow the chronology so far as it is agreed from the mother's case outline as follows: ·1996 parties marry.·1999 Ms S born (now aged 18 years).·2000 [X] born (now aged 17 years).·2002 [Y] born (now aged 15 years).·2004 [Z] born (now aged 13 years).·2007 parties separate.·2007 father entered into a relationship with Ms K.·18 December 2008 orders made for the children to live with the mother.·20 February 2009 father incorporates (company omitted) Pty Ltd to undertake property development in Queensland. The company subsequently purchases vacant land for $1.6M. and borrows $12 million to complete the development.·2010 [A] born to the father and Ms K.·30 September 2010 parties enter into First Binding Child Support Agreement.·April 2011 husband purchases a block of land at Property A, Queensland for $1,075,000.·2012 husband commences employment with (employer omitted) with target remuneration of $702,000 per annum.·August 2012 husband purchases three vacant blocks of land in Property C.·8 January 2013 (company omitted) Pty Ltd is placed into voluntary administration.·22 March 2013 husband sells property at Property D.·2 April 2013 parties entered into a new Binding Child Support Agreement terminating the previous agreement.·15 January 2014 father makes a non-periodic payment pursuant to the Agreement.·3 April 2014 father sells property at Property E for $187,500.·8 April 2014 father sells property at Property B for $190,000.·10 April 2014 ATO commences legal proceedings against the father in the District Court of New South Wales seeking recovery of $302,863.42. Father later enters into a payment arrangement with ATO in respect of this debt.·2014 father is dismissed from his role at (employer omitted). He enters into a settlement with (employer omitted).·September 2014 father sells the property at Property A, placing the proceeds of sale into a bank account held by Ms K.·17 September 2014 father joins the board of (company omitted) (“(company omitted)”) as a non-executive director.·2015 [B] born to the father and Ms K.·2015 father enters into a contract of employment with (employer omitted)) as (occupation omitted) with remuneration of $480,000 per annum.·10 April 2015 father receives a letter of demand from the liquidator of (company omitted) Pty Ltd.·2015 father is informed by (employer omitted) that his contract of employment will not be extended.·15 September 2015 father makes a periodic payment pursuant to the Agreement.·9 October 2015 mother files an initiating application seeking to enforce Agreement.·28 October 2015 father enters into a Limited Child Support Agreement with Ms K agreeing to pay $6,199.91 per annum.·2015 father ceases employment with (employer omitted).·2015 father commences employment with (employer omitted) on a package of $240,000 per annum.·13 January 2016 father commences legal action against (employer omitted).·18 May 2016 father settles his action against (employer omitted) and receives payment of $40,909 plus GST.·26 August 2016 ATO commences proceedings against the father in the District Court of Queensland seeking recovery of amounts owed to it.·February 2017 mother commences receiving child-support payments as assessed by the CSA and collected by them on her behalf.