TRITTON & POYZER

[2011] FamCA 55

FAMILY COURT OF AUSTRALIA

TRITTON & POYZER [2011] FamCA 55

FAMILY LAW – CHILD SUPPORT – where the wife seeks a stay of the collection of child support under s 140 of the Child Support (Assessment) Act 1989 – where the wife seeks a review of the Child Support Assessment – where s 140 of the Child Support (Assessment) Act 1989 was repealed in 2007 – where the Court has considered its jurisdiction to make such an order under s 111C of the Child Support (Registration and Collection) Act 1988 – held that it is not appropriate in the circumstances to exercise its jurisdiction should it exist – wife’s application dismissed

FAMILY LAW – JURISDICTION – consideration of whether the Court has jurisdiction to make orders under s 111C of the Child Support (Registration and Collection) Act 1988

Child Support (Assessment) Act 1989 s 140
Child Support (Registration and Collection) Act 1988 s 111C

APPLICANT: Ms Tritton

RESPONDENT: Mr Poyzer

FILE NUMBER: ADF 1063 of 2001

DATE DELIVERED: 1 February 2011

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 1 February 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Randle

SOLICITOR FOR THE RESPONDENT: Randle Taylor & Co

Orders

1. The amended application of the wife filed on 4 January 2011 is dismissed.

2. The application for costs by the husband of this application be reserved for consideration on the date of the general costs application on 28 and 29 March 2011.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 1063 OF 2011

MS TRITTON

Applicant

And

MR POYZER

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an interim application in a case.  The first application in a case was filed on 4 January 2011 together with a supporting affidavit of the applicant.  (I refer to the parties as “the wife” and “the husband” even though the parties are divorced).  There is then an amended application in a case filed on 28 January 2011.  This morning I have received the affidavit of the husband to which is annexed some relevant material in relation to this child support matter.

2. The original application in a case of the applicant wife was:

   “That pursuant to section 140 of the Child Support Assessment Act, a stay be granted for the collection of child support from the applicant to the respondent until the Australian Taxation Office has processed taxation returns lodged by the applicant or until further order”

   and that the application be heard urgently by me.

3. The amended application in a case was in those terms save and except that at the end of paragraph 1, the words are added:

   “Or until determination of my objection and review of my current assessment by CSA to be submitted upon receipt of my application for a copy of my file under the Freedom of Information Act 1982 requested 18.11.10 whichever occurs last.”

4. Before me today the wife appears unrepresented.  The husband is not present but is represented by Mr Randle his solicitor now on file.

5. The history and the background of this matter is that I have in the past heard a very long trial and delivered a judgment in relation to property settlement matters which is now the subject of appeal.  The child support matter, although somewhat related to other financial matters, is not directly connected to the orders that I made by way of final property settlement in August 2010.

6. The affidavit of the wife, which purports to establish the basis upon which she seeks the stay order refers to her dealings with the Child Support Agency in late 2010.  She refers in that affidavit to instructing a chartered accountant to prepare her outstanding taxations returns for 2008, 2009 and 2010.  The fact that she has not filed those tax returns for those years has obviously had an impact upon the assessment by the Child Support Agency of the child support.

7. The wife says at the bar table today that she was told by the Child Support Agency staff to make this application to this Court pursuant to section 140 of the Child Support Assessment Act. The copies of the Act, which are available to the Court, indicate that section 140 of the Child Support (Assessment) Act1989 was repealed in 2007.  The process to be followed in challenging the assessments of the Child Support in relation to income or the following calculations (based upon special conditions or otherwise), appear not to have been followed in this matter.

8. The provisions of section 111C of the Child Support (Registration and Collection) Act 1988 are in wide terms.  It commences:

   “This section applies if a proceeding has been instituted:          

   (a)in a court having jurisdiction under this Act.”

   It does not refer to what type of proceedings have been instituted but refers to the powers of the Court to make orders in relation to a stay as the court considers appropriate affecting the operation or implementation of the Assessment Act if it is desirable to do so taking into account the interests of the persons who may be affected by the outcome of the proceedings.

9. If I have jurisdiction in this matter under section 111C, which I doubt, then the question of the exercise of the jurisdiction and the appropriateness of orders to be made must take into account the actual provisions of section 111C

10. I am aware from the history of the matter that the husband sought a stay of the orders of this Court requiring him to pay significant sums to the wife.  Subject to certain conditions that stay has been granted.  It appears that the orders requiring the husband to make payment of sums of $200,000 and $20,000 (being the orders I made on 29 October 2010), have been complied with by the husband.

11. The question therefore is whether it is appropriate in these circumstances pending the wife’s filing of her tax returns and appropriate application for review pursuant to the Child Support Assessment Act for this Court to stay the collection of the moneys otherwise assessed pursuant to the provisions of the Child Support legislation.  On the material before me, I am not satisfied that it is appropriate to exercise the jurisdiction of the Court if that jurisdiction exists.  I dismiss the application of the wife.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 1 February 2011.

Associate: 

Date:  14 February 2011