YARWOOD & SHORE - [2013] FCCA 2219

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARWOOD & SHORE

[2013] FCCA 2219

Catchwords:
FAMILY LAW – Property – De facto property application.

CHILD SUPPORT – Application for administrative assessment – application to enforce payment of child support debt – no power to apply for administrative assessment through the court – payee may not enforce payment of child support debt without first notifying the Child Support Registrar.

BANKRUPTCY – Where applicant became bankrupt after the commencement of the action – application stayed – where trustee did not elect to continue action – application deemed abandoned.

Legislation:

Bankruptcy Act 1966 (Cth), ss.58, 60

Child Support (Assessment) Act 1989 (Cth), ss.24, 116
Child Support (Registration and Collection) Act 1988 (Cth), ss.30, 113A, 116

Family Law Act 1975 (Cth), s.90SM

Cases cited:
Yarwood & Shore [2012] FMCAfam 1440
Yarwood & Shore [2013] FCCA 2114

Applicant:

MR YARWOOD

Respondent:

MS SHORE

File Number:

SYC 2033 of 2012

Judgment of:

Judge Scarlett

Hearing date:

16 December 2013

Date of Last Submission:

16 December 2013

Delivered at:

Sydney

Delivered on:

16 December 2013

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

The Application is discontinued.
The Response is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2033 of 2012

MR YARWOOD

Applicant

And

MS SHORE

Respondent

REASONS FOR JUDGMENT

Application

By an Amended Application filed on 18^th March 2013, the Applicant seeks orders for property settlement arising out of the parties’ de facto relationship and a departure from administrative assessment of child support. The Respondent, by her Amended Response filed on 3^rd June 2013, seeks orders for:
a)Administrative assessment of child support;
b)Property adjustment, including the repayment by the Applicant of a debt of owed to the Respondent’s parents; and
c)Costs.
Regrettably, neither of the parties’ claims will be successful.

Background

The parties entered into a de facto relationship in December 1999 and separated on 15^th October 2011. There are three children of the relationship, now aged 10, 8 and 5 years.
The Applicant was an (omitted) by occupation.
The Applicant commenced proceedings on 10^th April 2012 by filing an application for parenting Orders, child support departure and alteration of property interests under s.90SM of the Family Law Act 1975 (Cth).
On 19^th December 2012, after an interim hearing on 19^th November, orders were made until further order relating to parenting and property matters (Yarwood & Shore[1]) and the proceedings were set down for final hearing on 3^rd April 2013.
[1] [2012] FMCAfam 1440
When the matter came before the Court, the Applicant’s then solicitor, Mr Ian Williams, advised the Court that his client had obtained a grant of legal aid relating to the parenting issues only. The Respondent was unrepresented. To his credit, Mr Williams negotiated a settlement of the parenting issues between the parties, and on that day…

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 YARWOOD & SHORE

Details

AGLC: Yarwood and Shore [2013] FCCA 2219
Case: [2013] FCCA 2219
Decision Date: 16 December 2013

CaseChat Overview and Summary

In the matter of *Yarwood & Shore*, the applicant, Yarwood, sought to bring a de facto property application. Shore, the respondent, opposed this application. The matter came before Judge Scarlett.

The court was required to determine several legal issues. Firstly, it considered whether the court had the power to apply for an administrative assessment of child support. Secondly, it examined whether a payee could enforce payment of a child support debt without first notifying the Child Support Registrar. Finally, the court addressed the consequences of the applicant's bankruptcy after the commencement of the action, specifically whether the application should be stayed and, if the trustee did not elect to continue the action, whether the application should be deemed abandoned.

Judge Scarlett reasoned that the court did not possess the power to apply for an administrative assessment of child support. Furthermore, the court held that a payee is statutorily prohibited from enforcing a child support debt without prior notification to the Child Support Registrar. Crucially, as Yarwood had been declared bankrupt after initiating the proceedings and the trustee had not elected to continue the action, the application was deemed abandoned and therefore stayed.

Consequently, the court ordered that the Application be discontinued and the Response be dismissed.

Orders

Orders of the court

The Application is discontinued.

The Response is dismissed.

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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