VENSON & VENSON - [2009] FamCA 859

FAMILY COURT OF AUSTRALIA

VENSON & VENSON

[2009] FamCA 859

FAMILY LAW - CHILD SUPPORT - Father seeks orders that a child support agreement created between him and the mother as part of consent orders entered into by them before the Local Court in 2000 be set aside - Mother is resisting the father’s application and seeks an order that the father pay the accumulated arrears under the existing child support agreement and the discharge of an earlier interim stay order - Father is also seeking to amend his claim for relief or re-open his case to adduce fresh evidence - Father’s application is dismissed, stay order is discharged and the Court declines to make the order sought by the mother in respect of payment of arrears under the child support agreement because to do so would contravene the Family Law Rules

Child Support (Assessment) Act 1989 (Cth) ss 98, 136
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Rules 2004 (Cth) r 1.13, 11.10(1)(a)(ii), 20.03

Air Link Pty Ltd v Paterson (No.2) (2003) 58 NSWLR 388
Baldry v Jackson [1976] 2 NSWLR 415
Goldsmith v Sandilands (2002) 190 ALR 370
Re Australasian Meat Industry Employees’ Union (WA Branch); Ex parte Ferguson (1986) 67 ALR 491
Rodgers v Federal Commissioner of Taxation (1998) 158 ALR 220
Smith v NSW Bar Association (No 2) (1992) 176 CLR 256

APPLICANT:

Mr Venson

RESPONDENT:

Ms Venson

FILE NUMBER:

SYF

2376

2004

DATE DELIVERED:

8 September 2009

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Austin

HEARING DATE:

5 and 6 August 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr J Lloyd

SOLICITOR FOR THE APPLICANT:

Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Mr R Brender

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

The Further Amended Application for Final Orders filed on 24 July 2008 is dismissed.
Order 5 made by this Court on 6 June 2005 is discharged.
Order 3 sought in the Amended Response filed on 4 August 2009 is dismissed.
Costs are reserved.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF2376 of 2004

MR VENSON

Applicant

And

MS VENSON

Respondent

REASONS FOR JUDGMENT

Introduction

Pending before the court for determination is the Further Amended Application for Final Orders filed by the father on 24 July 2008, and the Amended Response filed by the mother on 4 August 2009.
The essential contest between the parties is the father’s proposal that a child support agreement, created between the parties as part of consent orders entered into by them before the Local Court of NSW at Sydney on 24 November 2000, be set aside. That proposal is resisted by the mother.
In addition to dismissal of the father’s Application, the mother seeks discharge of an earlier interim stay order, and an order that the father pay the accumulated arrears under the existing…

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 VENSON & VENSON

Details

AGLC: VENSON & VENSON [2009] FamCA 859
Case: [2009] FamCA 859
Decision Date: 8 September 2009

CaseChat Overview and Summary

In *Venson & Venson*, the father sought to set aside a child support agreement made in 2000 as part of consent orders entered into before the Local Court. The mother opposed this application, seeking orders for the father to pay accumulated arrears under the agreement and to discharge an interim stay order. The father also sought to amend his claim or re-open his case to present fresh evidence.

The court was required to determine whether the father's application to set aside the child support agreement should be granted, whether the interim stay order should be discharged, and whether the mother's application for payment of arrears should be made. Additionally, the court had to consider the father's request to amend his claim or re-open his case to adduce fresh evidence.

Austin J dismissed the father's application to set aside the child support agreement and declined to make the order sought by the mother for payment of arrears, finding that to do so would contravene the Family Law Rules. The court also discharged the interim stay order. The court reserved costs.

Orders

Orders of the court

The Further Amended Application for Final Orders filed on 24 July 2008 is dismissed.

Order 5 made by this Court on 6 June 2005 is discharged.

Order 3 sought in the Amended Response filed on 4 August 2009 is dismissed.

Costs are reserved.

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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