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Latest Notable Cases samples

This is a sample (posted 15 December 2018) of "latest notable cases", which is posted monthly with live links for members at the Members' Home Page under Members' Practice News. Also available at our Members' Home Page (along with our E-Book, our up-to-the-minute family law and child support practice news, our online forms and precedents and our free legal help line) is our online members' Archive of all our back issue indexed case notes (assembled by topic and with live links to AustLII), useful papers and client brochures.

Our E-Book offers links to all the AustLII-published cases we cite, links to forms and precedents and a word/phrase search function (also available at our archive once you have chosen your topic).

Child support – Change of care post-binding child support agreement which created arrears – Enforcement – Section 80D(2A) automatically terminated agreement as of 1 July 2018 so that new carer father could not have it set aside nor the Registrar stayed from garnisheeing his wages – The parties having contracted out of the administrative child support system, the court had no power retrospectively to set aside arrears incurred under a now terminated agreement

In Rake [2018] FCCA 3181 (5 November 2018) Judge Harland heard the father’s application for an interim order for a stay of a binding child support agreement made by the parties in 2015 which provided for him to pay the mother $1,006 per month in respect of their son “[X]”, each parent to pay half school fees, books and uniforms. The agreement was made when [X] lived with the mother. In July 2017 [X] began living with the father whose child support fell into arrears to the extent that the child support registrar began garnishing his wages. 

When contacted by the father the registrar advised that the garnishee would not be ceased without a stay order. The father applied to the Court for a stay and orders that the agreement be set aside and that he be released from all arrears from the day that [X] started living with him. Between the filing of his application and the hearing the automatic termination provisions in s 80D of the Child Support (Assessment) Act came into effect (introduced by the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018). 

Judge Harland said (from [20]):

“ … [T]he effect of the legislation is that the agreement terminated on 1 July 2018. [Ed: being the date on which the amendment came into effect] …

( … )

[22] Section 80D of the CSAA deals with the circumstances where binding child support agreements are terminated. Section 80D(2A) reads as follows:

‘(2A) A binding child support agreement is terminated in relation to a child by force of this subsection if:

(a) a party (the former carer) to the agreement who is entitled to be paid or provided child support for the child (disregarding section 67A) under the agreement ceases to be an eligible carer of the child; and

(b) the period of 28 days after the former carer ceases to be an eligible carer of the child ends without the former carer again becoming an eligible carer of the child; and

(c) the agreement is not suspended under section 86 on the day after the period ends as a result of that cessation; and

(d) a child support terminating event does not occur under subsection 12(2AA); and

(e) the former carer continues to be entitled to be paid or provided child support for the child under the agreement despite ceasing to be an eligible carer.

Note: The agreement may continue in relation to other children to whom the agreement relates if the person does not cease to be an eligible carer of those children (see section 87).’

[23] The effect of the Family Assistance and Child Support Legislation Amendment (Protecting Children) Act 2018 is that the agreement terminated automatically. ( … )

[24] The real issue of concern for the applicant is the arrears that have accrued since [X] came into his care.

[25] The respondent’s counsel confirmed that it is common ground that [X] has spent hardly any time with her since July 2017. Section 80D(2A) of the CSAA provides that 28 days after a change of residence the agreement automatically terminated.

( …)

[27] The applicant told the Court that DHS told him that they would not stop garnishing his wage without an order for a stay. Given the effect of the legislation, it is not possible to order a stay of the agreement given the agreement had already been terminated and no longer exists.

[28] The respondent’s counsel encapsulated the issue the Court now has to consider which is whether or not the Court has any power to retrospectively set aside arrears incurred pursuant to a now terminated agreement.

( … )

[30] The difficulty the applicant faces is that s 136(1) [Ed: power of court to set aside child support agreements] makes clear the section applies to circumstances where a party seeks to set aside an agreement. In this instance, the agreement has been terminated so there is no agreement to set aside.

( … )

[37] The critical issue is the status of the terminated binding child support agreement.

[38] Section 81(1)(a) states that an agreement is a child support agreement if the agreement is a binding child support agreement. There is no dispute that the agreement complies with the requirements. Section 80C defines binding child support agreement. Section 80C(2)(e) is applicable. An agreement is binding on the parties if and only if the agreement has not been terminated under section 80D. As discussed above the agreement has been terminated pursuant to section 80D(2A).

( … )

[41] The respondent’s counsel relied on the Full Court of the Family Court decision of Masters & Cheyne [2016] FamCAFC 255. In that case Murphy J discusses the interpretation of the expression ‘exceptional circumstances’ at [42] to [44]. He refers to the exceptional meaning of unusual or out of the ordinary. Aldridge J at [155] said that a change of residence in itself is not exceptional. The circumstances were exceptional in Simpson & Hartnett [1984] FamCA 62 because the change of residence took place within two weeks of final orders being made.

( … )

[43] The applicant simply states in his affidavit that he will suffer hardship if the agreement is not set aside. He does not provide evidence as to what he has paid or what he would be entitled to receive from the respondent. He referred to paying school fees from the bar table but does not provide any evidence with respect to that.

( … )

[49] Whilst it seems unfair that the applicant is required to pay child support for a child in his full time care, when parties enter into a binding agreement they are contracting out of the administrative child support system.

[50] Before entering into a binding child support agreement, parties must receive independent legal advice …

[51] A binding child support agreement gives both parties certainty. They enter into these agreements knowing what their obligations are regardless of a change in fortunes of one or both parties for better or worse.

[52] In this case I am satisfied that s 136 does not apply and therefore the applicant fails to meet the first hurdle. Given this, it is not necessary to consider whether the applicant has demonstrated that these are exceptional circumstances and that the applicant would suffer hardship, although I have briefly discussed the arguments made above. The application must be dismissed.”


NOTE – A further 6 cases are summarised for members this month at our Members' Home Page under "latest notable cases" under the following headings:

Property – Illiterate wife reliant on Centrelink pension loses appeal against dismissal of her application for leave to bring property proceedings 30 years out of time – Husband wins cross-appeal against leave granted to wife to apply for spousal maintenance – Judge erred by applying s 44(4)(b) (as amended) where time limit had expired before introduction of the amendment – VCAT has no jurisdiction over a matrimonial cause – Impact of absent particularity of claim on a finding of hardship

Property – Executed 2011 consent order under s 90SM set aside in 2015 for want of jurisdiction (not found that de facto relationship broke down after 1 March 2009) – Held at ensuing preliminary hearing that it was not just and equitable under s 90SM(3) to make any order – Dismissal of case on that ground not being an exercise of Court’s power to alter property interests, it was not obliged to consider s 90SM(4) factors

Children – Mother wins appeals against order that children live with father if she relocated to the USA – Trial judge erred by placing determinative weight on a single incident where mother found not to have facilitated telephone time – Finding that father would better promote communication between children and the other parent was against the weight of all the evidence

Property – Wife’s trustee in bankruptcy fails to establish common intention constructive trust despite wife’s $209,000 payment to an overdraft on the day after a $209,000 deposit was paid from that account

Child support – Court joins father’s new wife as a party to enforcement proceedings to address father’s alienation of personal service income in favour of her business – Third party debt notices issued against business

Property – Contempt – Husband sentenced to 12 months imprisonment for breach of property order by redrawing money from a line of credit facility and failing to discharge mortgage