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Venson & Venson (No. 2)

Venson & Venson (No. 2)

Case [2010] FamCA 963 2 November 2010

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FAMILY COURT OF AUSTRALIA

VENSON & VENSON (NO. 2)

[2010] FamCA 963

FAMILY LAW – CHILD SUPPORT – Father seeks to set aside child support agreement created by him and the mother in 2000 – Alleged failure to disclose – Alleged unconscionable conduct – Alleged exceptional circumstances – Mother resists the father’s application – Child support agreement set aside for a closed period from a retrospective date due to exceptional circumstances not particularised by the father in his claim – No procedural unfairness to the mother as the facts relevant to the finding were always expressly considered by the Court and the mother concedes the Court is at liberty to make orders beyond the polarised options advocated by parties

Child Support (Assessment) Act 1989 (Cth), ss 136, 137, 138, 140A, 141
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)
Family Law Act 1975 (Cth) s 79A
Property (Relationships) Act 1984 (NSW)

Allen v Snyder [1977] 2 NSWLR 685
Balzano v Balzano (2010) FLC 98-048
Baumgartner v Baumgartner (1987) 164 CLR 137
Calverly v Green (1984) 155 CLR 242
Christian & Donald [2008] FamCAFC 44
Commercial Bank of Australia v Amadio (1983) 15 CLR 447
In the Marriage of Simpson & Hamlin (1984) 9 Fam LR 1040
Martin v Martin (1959) 110 CLR 297
Muschinski v Dodds (1985) 160 CLR 583
Pritchard v Racecage Pty Ltd (1997) 142 ALR 527
Weiss v Barker Gosling (1993) 16 Fam LR 728
West v AGC (Advances) Ltd (1986) 5 NSWLR 610

APPLICANT:

Mr Venson

RESPONDENT:

Ms Venson

FILE NUMBER:

SYF

2376

2004

DATE DELIVERED:

2 November 2010

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Justice Austin

HEARING DATE:

28, 29 & 30 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Lloyd SC

SOLICITOR FOR THE APPLICANT:

Mr Chapple, Newnhams Solicitors

COUNSEL FOR THE RESPONDENT:

Mr Brender

SOLICITOR FOR THE RESPONDENT:

Not Applicable

Orders

The child support agreement reached between the parties on 24 November 2000 and registered with the Child Support Registrar on or about 11 June 2003, is set aside for the period between 11 March 2003 and 31 August 2006, both dates inclusive.
Leave is granted to the parties to furnish a copy of these orders and reasons to the Child Support Registrar.
Any and all outstanding applications, other than as to costs, are dismissed.
Costs are reserved for 28 days, and in default of any costs application being filed within that time, any monies paid by the Applicant to the Registry Manager pursuant to Order 3 made on 22 June 2010 shall be refunded by the Registry Manager to the Applicant.

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 NEWCASTLE

FILE NUMBER: SYF 2376 of 2004

MR VENSON

Applicant

And

MS VENSON

Respondent

REASONS FOR JUDGMENT

Introduction

This is the latest chapter in the…

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 (No. 2)

Details

AGLC: Venson & Venson (No. 2) [2010] FamCA 963
Case: [2010] FamCA 963
Decision Date: 2 November 2010

CaseChat Overview and Summary

In *Venson & Venson (No. 2)*, Justice Austin of the Supreme Court of New South Wales considered an application to set aside a child support agreement. The dispute concerned the validity and enforceability of a child support agreement entered into by the parties on 24 November 2000, which had been registered with the Child Support Registrar.

The primary legal issue before the Court was whether the child support agreement should be set aside for a specified period. This required the Court to determine if the conditions for setting aside a registered child support agreement under the relevant legislation were met.

Justice Austin reasoned that the child support agreement was no longer in the best interests of the child and that it was appropriate to set it aside for the period between 11 March 2003 and 31 August 2006. The Court granted leave for the parties to provide a copy of the orders and reasons to the Child Support Registrar.

The Court ordered that the child support agreement be set aside for the specified period. All other outstanding applications, save for costs, were dismissed. Costs were reserved for 28 days, with provisions for the refund of monies paid to the Registry Manager if no costs application was filed within that timeframe.

Orders

Orders of the court

The child support agreement reached between the parties on 24 November 2000 and registered with the Child Support Registrar on or about 11 June 2003, is set aside for the period between 11 March 2003 and 31 August 2006, both dates inclusive.

Leave is granted to the parties to furnish a copy of these orders and reasons to the Child Support Registrar.

Any and all outstanding applications, other than as to costs, are dismissed.

Costs are reserved for 28 days, and in default of any costs application being filed within that time, any monies paid by the Applicant to the Registry Manager pursuant to Order 3 made on 22 June 2010 shall be refunded by the Registry Manager to the Applicant.

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

Full text does not contain this section.

Citations

AGLC Citation

Venson & Venson (No. 2) [2010] FamCA 963

Most Recent Citation

LINCOLN & RYAN [2011] FMCAfam 841

Cases citing this decision · 8 of 8 shown

MARTYN & MARTYN
[2020] FamCA 526 Para 12

…so, it was contended, existed in those provisions of s 141 of the CSA Act to which I have referred. It was also noted that, in Venson & Venson (No 2) [2010] FamCA 963 (“ Venson (No 2) ”), Austin J declined to set aside the child support agreement between the parties, on the facts before the Court in that case, but…
Slattery and Deegan
[2017] FCCA 3036 Para 24

…ondition of the agreement and this fundamental condition his Honour held did constitute an exceptional circumstance. [18] Venson & Venson (No. 2) [2010] FamCA 963…
Telama and Telama (No 2)
[2017] FamCAFC 194 Para 5

…ning of “exceptional circumstances” and “hardship” discussed in Keane v Keane (2013) 50 Fam LR 120 per Watts J and Venson and Venson (No 2) [2010] FamCA 963 per Austin J. Based on those decisions the primary judge was satisfied the test for “exceptional circumstances” was “tough” and “the bar is high” but “not impo…
Telama and Telama
[2016] FCCA 2375 Para 2

…hat a failure of a fundamental condition of the agreement did constitute “exceptional circumstances.” [5] Venson & Venson (No. 2) [2010] FamCA 963…
STRAHAN & STRAHAN
[2011] FamCA 728 Para 2

…Appleton [2011] FamCA 70 Austin J said at paragraph 39 Both parties cited and relied upon the following observations made in Venson & Venson (No. 2) [2010] FamCA 963 at [99-100]: ‘The test of “exceptional circumstances” has been the subject of judicial interpretation in respect of s 136(2)(d) of the Act (see Balza…
LINCOLN & RYAN
[2011] FMCAfam 841 Para 6

…refer to a number of relevant authorities on the application of s.136(2)(d) in particular to Daley & Daley [2009] FMCAfam 398; Venson & Venson (No.2) [2010] FamCA 963; In the Marriage of Sandrk (1991) 15 FamLR 197; and Gallup & Gallup [2009] FMCAfam 839.…
Appleton & Appleton
[2011] FamCA 70 Para 12

…Both parties cited and relied upon the following observations made in Venson & Venson (No. 2) [2010] FamCA 963 at [99-100]: The test of “exceptional circumstances” has been the subject of judicial interpretation in respect of s 136(2)(d) of the Act (see Balzano & Balzano (2010) FLC 98-048 at [38-41]) and also s 79A…
Keane & Keane
[2013] FamCA 332 Para 2

…In Venson & Venson (No. 2) [2010] FamCA 963 the father’s financial circumstances had become parlous. Justice Austin found that the deterioration in the father’s financial circumstances, which occurred after the child support agreement was made, did not constitute “exceptional circumstances”. However, a feature of t…

View all 8 citing cases →

Cases cited in this decision · 10 of 10 shown

VENSON & VENSON
[2010] FamCA 501 Para 4

…described in the Amended Response. All interlocutory disputes between the parties merged in another prior judgment between them (see Venson & Venson [2010] FamCA 501).…
VENSON & VENSON
[2009] FamCA 859 Para 3

…The father previously tried and failed with an application to set aside the child support agreement (see Venson & Venson [2009] FamCA 859). This is his second attempt.…
Christian & Donald
[2008] FamCAFC 44 Para 18

…136(2)(d) of the Act (see Balzano & Balzano (2010) FLC 98-048 at [38-41]) and also s 79A of the Family Law Act 1975 (Cth) (see Christian & Donald [2008] FamCAFC 44 at [34-45]; Marriage of Simpson & Hamlin (1984) 9 Fam LR 1040 at 1045). The term “exceptional circumstances” has not been defined with precision, but gen…
Pritchard v Racecage Pty Ltd
[1997] FCA 27 Para 3

…47 at 461, 474-475) and similar legislative provisions (see West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 620-622; Pritchard v Racecage Pty Ltd (1997) 142 ALR 527 at 544-546). The concept of unconscionable conduct has been construed consistently in this jurisdiction, albeit in different circumstances from those imm…
Baumgartner v Baumgartner
[1987] HCA 59 Para 17

…f the property to enjoy sole beneficial ownership of it (see Allen v Snyder at 690; Muschinski v Dodds at 614-617, 620-621; Baumgartner v Baumgartner (1987) 164 CLR 137 at 148-150). For the reasons following, it is unnecessary to finally determine the issue.…
Muschinski v Dodds
[1985] HCA 78 Para 17

…v Martin (1959) 110 CLR 297 at 303-305; Allen v Snyder [1977] 2 NSWLR 685 at 690; Calverly v Green (1984) 155 CLR 242 at 268-269; Muschinski v Dodds (1985) 160 CLR 583 at 590). However, in the event of the father wishing to assert his rights, the circumstances of the contributions probably mean that he acquired a si…
Calverley v Green
[1984] HCA 81 Para 17

…through an implied or resulting trust (see Martin v Martin (1959) 110 CLR 297 at 303-305; Allen v Snyder [1977] 2 NSWLR 685 at 690; Calverly v Green (1984) 155 CLR 242 at 268-269; Muschinski v Dodds (1985) 160 CLR 583 at 590). However, in the event of the father wishing to assert his rights, the circumstances of the…
Commercial Bank of Australia Ltd v Amadio
[1983] HCA 14

…rtner v Baumgartner (1987) 164 CLR 137 Calverly v Green (1984) 155 CLR 242 Christian & Donald [2008] FamCAFC 44 Commercial Bank of Australia v Amadio (1983) 15 CLR 447 In the Marriage of Simpson & Hamlin (1984) 9 Fam LR 1040 Martin v Martin (1959) 110 CLR 297 Muschinski v Dodds (1985) 160 CLR 583 Pritchard v Racecag…
Martin v Martin
[1959] HCA 62 Para 17

…ion of advancement, preclude the creation of an equitable interest in favour of the father through an implied or resulting trust (see Martin v Martin (1959) 110 CLR 297 at 303-305; Allen v Snyder [1977] 2 NSWLR 685 at 690; Calverly v Green (1984) 155 CLR 242 at 268-269; Muschinski v Dodds (1985) 160 CLR 583 at 590).…
[1986] AC 80
[1986] AC 80 Para 3

…(see Commercial Bank of Australia v Amadio (1983) 151 CLR 447 at 461, 474-475) and similar legislative provisions (see West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 620-622; Pritchard v Racecage Pty Ltd (1997) 142 ALR 527 at 544-546). The concept of unconscionable conduct has been construed consistently in this ju…

Legislation cited in this decision · 3

Child Support (Assessment) Act 1989 (Cth)
136, 137, 138, 140A, 141 6 mentions (from Para 3)
Family Law Act 1975 (Cth)
79A 2 mentions (from Para 18)
Property (Relationships) Act 1984 (NSW)
1 mention (from Para 1)