Wales and Falls and Anor (No.2) - [2010] FMCAfam 1132

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WALES & FALLS & ANOR (No.2)

[2010] FMCAfam 1132

CHILD SUPPORT – Departure Prohibition Order – where order revoked prior to final hearing – where Departure Authorisation Certificate issued – whether application should be dismissed – application for costs – application for compensation – no power to order compensation – where applicant incurred no legal costs or fees – no order as to costs – discontinuance – leave to discontinue.

Child Support (Registration and Collection) Act 1988 (Cth), ss.72D, 72I, 72K, 72Q, 72S
Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 (Cth)

Wales & Falls & Anor (SSAT Appeal) [2010] FMCAfam 116
T & G & Child Support Registrar [2003] FMCAfam 197 not followed

Applicant:

MR WALES

First Respondent:

MS FALLS

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 5408 of 2008

Judgment of:

Scarlett FM

Hearing date:

5 October 2010

Date of Last Submission:

5 October 2010

Delivered at:

Sydney

Delivered on:

19 October 2010

REPRESENTATION

The Applicant:

In person

Solicitors for the Respondents:

Sparke Helmore

ORDERS

The Applicant is given leave to discontinue the proceeding.
There be no order as to costs.

THE COURT NOTES that the Second Respondent revoked the Departure Prohibition Order the subject of the proceeding on 13 August 2010.

IT IS NOTED that publication of this judgment under the pseudonym Wales & Falls & Anor (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5408 of 2008

MR WALES

Applicant

And

MS FALLS

First Respondent

CHILD SUPPRT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

This is a matter that has substantially been resolved, but not entirely to the applicant’s satisfaction. He applied to the Court to set aside a decision by the Child Support Agency to issue a Departure Prohibition Order under the provisions of s.72D of the Child Support (Registration and Collection) Act 1988, which had the effect of preventing him from leaving Australia in order to travel to the United Kingdom to see his children. The order has now been revoked.
The Solicitor for the Child Support Registrar sought that the applicant consent to Orders dismissing the application with no order as to costs. The applicant does not wish to do so, as he considers that the Child Support Agency made an error when it issued the Departure Prohibition Order, which caused him both trouble and expense to rectify.
Against this, Ms Rayment, who appeared for the Child Support Registrar, submitted that the hearing cannot proceed because the subject matter of the dispute no longer exists; the Departure Prohibition Order has already been revoked.

Background

The history of this matter is that the applicant appealed on 15^th September 2008 against a decision of the Social Security Appeals Tribunal. The appeal was heard by Riethmuller FM on 16^th November 2009. Judgment was reserved.
On 15^th March 2010 an order was made until further order suspending payments of child support arising from…

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 Wales and Falls and Anor (No.2)

Details

AGLC: Wales and Falls and Anor (No.2) [2010] FMCAfam 1132
Case: [2010] FMCAfam 1132
Decision Date

CaseChat Overview and Summary

The case of Wales & Falls & Anor (No.2) involved Mr Wales, who sought to challenge the issuance of a Departure Prohibition Order (DPO) by the Child Support Registrar. The DPO had prevented Mr Wales from leaving Australia to visit his children in the United Kingdom. The dispute reached the Federal Magistrates Court, where Mr Wales argued that the DPO was erroneous and had caused him inconvenience and additional expenses. The Child Support Registrar, represented by Ms Rayment, argued that the DPO had been revoked and the matter was now moot.

The primary legal issue before the court was whether the application should be dismissed given that the DPO had already been revoked prior to the hearing. Additionally, the court needed to determine if Mr Wales was entitled to any form of compensation or costs for the inconvenience caused by the issuance of the DPO. The court also had to consider if it could entertain an appeal against the making of the DPO under the amended provisions of the Child Support (Registration and Collection) Act 1988.

In its reasoning, the court noted that the DPO had indeed been revoked on 13 August 2010, making the primary subject of the dispute non-existent at the time of the hearing. The court found that under the current legislative framework, it had the jurisdiction to hear an appeal against the issuance of a DPO. However, since the DPO had been revoked, the court could not set it aside. The court also found that it had no authority to award compensation for the financial and personal distress caused by the issuance of the DPO. Furthermore, as Mr Wales had not incurred any legal costs or fees, he was not entitled to an order for costs.

The court concluded that the appropriate course of action was to grant Mr Wales leave to discontinue the proceeding and make no order as to costs. This decision was made to reflect the reality that the primary dispute had been resolved by the revocation of the DPO, while also acknowledging the procedural steps that Mr Wales's application had initiated, which led to the revocation of the order.

The final order of the court was to grant Mr Wales leave to discontinue the proceeding and to make no order as to costs. The court also noted that the revocation of the DPO was approved for publication under the pseudonym Wales & Falls & Anor (No.2) as per the Family Law Act 1975 (Cth).

Orders