YARWOOD & SHORE - [2013] FCCA 2114

FEDERAL CIRCUIT COURT OF AUSTRALIA

YARWOOD & SHORE

[2013] FCCA 2114

Catchwords:
FAMILY LAW – Property – where applicant has become bankrupt since the proceedings commenced – where trustee not notified in writing – application stayed under Bankruptcy Act 1966 (Cth) sub-s.60(2).

CHILD SUPPORT – Enforcement – debt owed to the Commonwealth.

PRACTICE AND PROCEDURE – Stay – parties directed to notify trustee in writing.

Legislation:

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

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

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

Applicant:

MR YARWOOD

Respondent:

MS SHORE

File Number:

SYC 2033 of 2012

Judgment of:

Judge Scarlett

Hearing date:

6 November 2013

Date of Last Submission:

6 November 2013

Delivered at:

Sydney

Delivered on:

6 November 2013

REPRESENTATION

Solicitors for the Applicant:

In person

Solicitors for the Respondent:

In person

ORDERS

UNTIL FURTHER ORDER

The Amended Application filed on 18 March 2013 is stayed by virtue of subsection 60(2) of the Bankruptcy Act 1966 (Cth).
Within seven (7) days of the date of this Order the Applicant must advise his trustee in bankruptcy of this Application and seek an election in writing from the trustee to either prosecute or discontinue this Application.
Within seven (7) days of the date of this Order the Respondent must forward to the Applicant’s trustee in bankruptcy being Mr S at (omitted) a copy of her Response and supporting affidavit of 31 May 2013.
The Application is adjourned to Monday 16 December 2013 for further mention at 10:00 am.

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

The application before the Court is an Amended Application seeking property orders under section 90SM of the Family Law Act 1975 (Cth) and an order in the nature of departure from administrative assessment of child support under section 116 of the Child Support (Assessment) Act 1989 (Cth).
The Respondent has filed a Response in which she seeks certain property orders and also seeks orders in the way of enforcement of arrears of child support under a child support assessment.
The Respondent also seeks in the property orders certain payments to her of moneys which she claims are owing to her by way of reimbursement and also an amount of some $80,000.00 owed to her parents.
The Respondent’s application to enforce payment of arrears of child support payments may have some difficulties, in that the child support is a debt owed to the Commonwealth, as set out in s. 30 of the Child Support (Registration and Collection) Act 1988 (Cth). It appears that the procedure under s.113A of that Act to enforce the child support debt has not been complied with.
Enforcement, in these circumstances, without a payee complying with the requirements of s.113A, remains…

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 2114
Case: [2013] FCCA 2114
Decision Date: 6 November 2013

CaseChat Overview and Summary

In proceedings before Judge Scarlett, the applicant, Yarwood, sought property settlement orders against the respondent, Shore. However, since the commencement of these proceedings, Yarwood had been declared bankrupt. The trustee in bankruptcy had not been formally notified in writing of the property proceedings.

The central legal issue before the court was whether the property proceedings should be stayed pursuant to s 60(2) of the *Bankruptcy Act 1966* (Cth) due to the applicant's bankruptcy and the consequent lack of notification to the trustee. The court also considered ancillary matters related to the enforcement of child support debts owed to the Commonwealth and general practice and procedure concerning notification to a trustee.

Judge Scarlett determined that s 60(2) of the *Bankruptcy Act 1966* (Cth) mandated a stay of the proceedings. This provision requires that a bankrupt's property proceedings cannot be continued without the leave of the court or the consent of the trustee. The court reasoned that the purpose of this section is to ensure that the trustee is aware of and can control litigation concerning the bankrupt's assets. Consequently, the court ordered that the amended application be stayed.

The court further ordered that the applicant must notify his trustee in bankruptcy of the proceedings within seven days and seek a written election from the trustee to either prosecute or discontinue the application. The respondent was also directed to forward a copy of her response and supporting affidavit to the applicant's trustee within the same timeframe. The application was adjourned for further mention to allow for these steps to be taken.

Orders

Orders of the court

UNTIL FURTHER ORDER

The Amended Application filed on 18 March 2013 is stayed by virtue of subsection 60(2) of the Bankruptcy Act 1966 (Cth).

Within seven (7) days of the date of this Order the Applicant must advise his trustee in bankruptcy of this Application and seek an election in writing from the trustee to either prosecute or discontinue this Application.

Within seven (7) days of the date of this Order the Respondent must forward to the Applicant’s trustee in bankruptcy being Mr S at (omitted) a copy of her Response and supporting affidavit of 31 May 2013.

The Application is adjourned to Monday 16 December 2013 for further mention at 10:00 am.

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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