Tobin & Tobin - [2022] FedCFamC1F 220

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tobin & Tobin [2022] FedCFamC1F 220

File number(s): BRC 8879 of 2021

Judgment of: STRUM J

Date of judgment: 28 April 2022

Catchwords: FAMILY LAW – JURISDICTION – Where the respondent mother challenges the jurisdiction of the Federal Circuit and Family Court of Australia – Where the applicant father currently resides in B City – Where the respondent and the children currently reside in Australia – Where final orders for maintenance were made in B City and the applicant seeks for those orders to be varied by the Federal Circuit and Family Court of Australia

Legislation:
Family Law Act 1975 (Cth)

Child Support (Registration & Collection) Act 1988 s18A

Family Law Regulations 1984 (Cth) regs 36 and 24A

Cases cited:
Howarth & Howarth (No.2) [2017] FCCA 1949

Kent & Kent [2017] FamCAFC 157

Mayer & Beck [2021] FamCA 302

Obannon & Scarffe (2021) FLC 94-009; [2021] FamCAFC 33

Rogers & Rogers (2010) 249 FLR 230; [2010] FamCA 1069

Division: Division 1 First Instance

Number of paragraphs: 18

Date of hearing: 23 March 2022

Place: Melbourne, via Microsoft Teams

Counsel for the Applicant: Ms Carmody

Solicitor for the Applicant: Waller Family Lawyers

Counsel for the Respondent: The Respondent appeared in person
ORDERS

BRC 8879 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR TOBIN

Applicant

AND:
MS TOBIN

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

23 MARCH 2022

THE COURT ORDERS THAT:
1.The Mother’s Response filed 9 September 2021 be dismissed, only insofar as it seeks the dismissal of the Father’s Initiating Application based on jurisdictional issues.
2.The costs of the Father arising out of the Mother’s objection to jurisdiction be reserved.
3.The matter be adjourned to a date to be fixed by the Court.

AND THE COURT NOTES THAT:
A.The remaining issues in the Father’s Initiating Application are able to be heard by a Senior Judicial Registrar.
B.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C.Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D.Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E.If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to notify the Judge’s Associate by way of email within 24 hours.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules…

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: Tobin & Tobin [2022] FedCFamC1F 220
Case: [2022] FedCFamC1F 220
Decision Date

CaseChat Overview and Summary

The case before the court was an objection to jurisdiction raised by the respondent mother against the applicant father's application to vary spousal and child maintenance orders made in B City. The father had filed an initiating application seeking to vary the maintenance orders, which were registered with the Child Support Agency in Australia. The mother argued that the court in B City should be the appropriate forum to deal with the application due to the father's permanent residence in B City and his visits to Australia to see the children. However, the court found that the Federal Circuit and Family Court of Australia did have jurisdiction over the matter. The court found that regulation 36 of the Family Law Regulations 1984 (Cth) applied to the registered maintenance liability and that there was no territorial requirement as suggested by the heading to regulation 36. The court also found that the mother's argument of forum non conveniens did not apply as there was no evidence to establish that the Australian court was a clearly inappropriate forum.
The court dismissed the mother's response to the extent that it sought to dismiss the father's application based on jurisdictional issues. The court also reserved the father's costs arising out of the mother's objection to jurisdiction. The matter was adjourned to a date to be fixed by the court. The court noted that the remaining issues in the father's initiating application could be heard by a senior judicial registrar. The court also provided information about the Family Violence and Cross-Examination of Parties Scheme for unrepresented parties in case of family violence allegations.

Orders