Yathopoulos & Komine & Anor - [2013] FCCA 267

FEDERAL CIRCUIT COURT OF AUSTRALIA

YATHOPOULOS & KOMINE & ANOR

[2013] FCCA 267

Catchwords:
CHILD SUPPORT – Application for departure order – application for stay of departure prohibition order - stay refused.

Legislation:

Child Support (Assessment) Act 1989, ss.117(2), 117(4), 117(5)

Child Support (Registration and Collection) Act 1988, ss.72D(1), 72G, 72I(1), 72J, 72K, 72L, 72O, 72Q, 72T, 111C, 116(2)

Taxation Administration Act1953

Cases cited:
Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Gyselman & Gyselman [1991] FamCA 93
Jones v Child Support Registrar [2007] FCA 1732

Onder & Child Support Agency and Sari [2010] FMCAfam 693
Onder v Child Support Registrar and Sari (No.2) [2011] FMCAfam 430
Whittaker v Child Support Registrar [2010] FCA 43

Applicant:

MR YATHOPOULOS

First Respondent:

MS KOMINE

Second Respondent:

THE CHILD SUPPORT REGISTRAR

File Number:

MLC 13656 of 2007

Judgment of:

Judge Whelan

Hearing date:

3 May 2013

Date of Last Submission:

3 May 2013

Delivered at:

Melbourne

Delivered on:

20 May 2013

REPRESENTATION

Counsel for the Applicant:

Mr Tatti

Solicitors for the Applicant:

WMB Lawyers

Counsel for the First Respondent:

No appearance

Counsel for the Second Respondent:

Mr Maat

Solicitors for the Second Respondent:

Australian Government Solicitor

ORDERS

That the application for a stay of the Departure Prohibition Order made by the Child Support Agency on 20 December 2012, filed 21 December 2012, and made under s.111C of the Child Support (Registration and Collection) Act 1988 is dismissed.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLC 13656 of 2007

MR YATHOPOULOS

Applicant

And

MS KOMINE

First Respondent

THE CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for a stay of a Departure Prohibition Order (“DPO”) issued by the Child Support Agency (“CSA”) on 20 December 2012. The application forms part of proceedings in which the Applicant, MR YATHOPOULOS (“the Applicant”) seeks that Orders for child support made on 2 November 2009 be varied to reduce the amount payable and the amount of child support currently owed by the Applicant be discharged or varied. The Applicant also seeks an Order that he be able to apply for an Australian passport for one of the children of the marriage without the need for the Respondent’s consent.
The application also sought that the DPO issued on 20 December 2012 be set aside. During the proceedings it became clear that the Applicant only sought that Order if the amount of child support currently owing by him was wholly discharged. In such a case the REGISTRAR OF THE CSA (“the Second Respondent”) would be obliged by s.72I(1) of the Child Support (Registration and Collection) Act 1988 (“the Act”) to revoke the Order.

Background

The initial application in this matter was lodged on 21 December 2012. The Applicant stated in support of an order varying the Consent Orders made on 2 November 2009:
Since…

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 Yathopoulos & Komine & Anor

Details

AGLC: Yathopoulos & Komine & Anor [2013] FCCA 267
Case: [2013] FCCA 267
Decision Date: 20 May 2013

CaseChat Overview and Summary

The applicant, Yathopoulos, sought a stay of a Departure Prohibition Order (DPO) made by the Child Support Agency on 20 December 2012. The application for the stay was filed on 21 December 2012. The matter came before Judge Whelan.

The central legal issue before the Court was whether to grant a stay of the DPO, which was made under section 111C of the *Child Support (Registration and Collection) Act 1988*. This required the Court to consider the merits of the applicant's case for a stay.

The Court dismissed the application for a stay. While the specific reasons for dismissal are not detailed in the provided text, the outcome indicates that the applicant did not satisfy the necessary legal threshold for a stay of the DPO. The Court's decision was to uphold the DPO as it stood.

Orders

Orders of the court

That the application for a stay of the Departure Prohibition Order made by the Child Support Agency on 20 December 2012, filed 21 December 2012, and made under s.111C of the Child Support (Registration and Collection) Act 1988 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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