TINGLEY & SMART & CHILD SUPPORT REGISTRAR - [2017] FCCA 471

FEDERAL CIRCUIT COURT OF AUSTRALIA

TINGLEY & SMART & CHILD SUPPORT REGISTRAR

[2017] FCCA 471

Catchwords:
FAMILY LAW – CHILD SUPPORT – Application for permanent stay – inherent jurisdiction – statutory jurisdiction – reimbursement debt owed to a (country omitted) agency – procedural fairness.

Legislation:

Child Support (Assessment) Act 1989, s.99

Child Support (Registration & Collection) Act 1988, ss.104, 105. 111C, 112
Federal Circuit Court of Australia Act 1999, ss.15, 118
Federal Circuit Court Rules 2001, r.25B(13)(g)
Family Law Act 1975, ss.66G, 114

Cases cited:
Brown & Child Support Registrar [2006] FamCA 1418
F & Z [2005] FMCA Fam 394
Selkirk & Caporn [2016] FCWA 206
Magill v Magill [2006] HCA 51
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
DJL v The Central Authority [2000] HCA 17
Carantinos v Magafas [2008] FCA 1107
Jones v Dunkel [1959] HCA 8
Welke v Child Support Registrar [2011] FMCAfam 2
Child Support Registrar v Higgins (2016) 54Fam LR 275

Applicant:

MR TINGLEY

First Respondent:

MS SMART

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLC 3350 of 2016

Judgment of:

Judge Williams

Hearing date:

13 February 2017

Date of Last Submission:

13 February 2017

Delivered at:

Melbourne

Delivered on:

17 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Bacon

Solicitors for the Applicant:

Manby & Scott

The First Respondent:

No appearance

Counsel for the Second Respondent:

Mr Tran

Solicitors for the Second Respondent:

Mills Oakley

ORDERS

The Applicant’s Initiating Application is dismissed.
Within 28 Days both parties file and serve any submissions as to costs.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of Judge Williams delivered this day will for all publication and reporting purposes be referred to as Tingley & Smart & Child Support Registrar.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 3350 of 2016

MR TINGLEY

Applicant

And

MS SMART

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

By an initiating application filed in the Melbourne Magistrates Court on 23 November 2015, and subsequently transferred to this court on 25 February 2016, the applicant seeks a permanent stay of enforcement of a registered maintenance liability. The registered maintenance liability is a debt due to the (country omitted) Inland Revenue, for non-payment of child support which has been registered for enforcement in Australia
The first respondent, Ms Smart, did not participate in the proceedings.
The second respondent, the Child Support Registrar, seeks that the application should be dismissed, and asserts that the court has no jurisdiction to grant a permanent stay, as sought by the applicant.
The applicant and the first respondent were married in (country omitted) in 1990 and separated in about 1993. They have two children X born (omitted) 1990 and Y born (omitted) 1993. The children and the first respondent remain living in (country omitted). The applicant emigrated from (country omitted) to Australia in 1994.[1]
[1] Paragraph 2 of the applicant's affidavit sworn 23 November 2015 ("the applicant's affidavit").
The applicant is liable…

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

Case: [2017] FCCA 471
Decision Date: 17 March 2017

CaseChat Overview and Summary

In the matter of *Tingley & Smart & Child Support Registrar*, heard by Judge Williams, the applicant sought to have a child support assessment set aside. The dispute concerned the validity of a child support agreement and whether it should be recognised as a binding agreement under the *Child Support (Registration and Collection) Act 1988* (Cth). The applicant contended that the agreement was not a valid child support agreement for the purposes of the Act, and therefore the assessment should be disregarded.

The central legal issue before the court was whether the document presented by the parties constituted a valid child support agreement as defined by the *Child Support (Registration and Collection) Act 1988*. This required the court to consider the specific requirements for a child support agreement to be recognised under the Act, including whether it met the criteria for registration and whether it was intended by the parties to be a binding agreement.

Judge Williams dismissed the applicant's initiating application. The court found that the agreement did not meet the statutory requirements to be considered a valid child support agreement under the Act. Consequently, the child support assessment remained in force. The parties were ordered to file and serve any submissions as to costs within 28 days.

Orders

Orders of the court

The Applicant’s Initiating Application is dismissed.

Within 28 Days both parties file and serve any submissions as to costs.

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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