Child support consent order invalid
Slattery & Nolan  FCCA 1174 (2 June 2016)
Child support: for full case: http://www.austlii.edu.au/au/cases/cth/FCCA/2016/1174.html
Mother’s application for enforcement of order 10 of Family Court of Australia at Brisbane orders of 12 September 2013
- The mothers Application in a Case filed 4 June 2015 sought an order enforcing order number 10 of the consent orders made in the Family Court of Australia at Brisbane on 13 September 2013. Those consent orders were made by the Registrar of the Family Court of Australia at Brisbane on 13 September 2013, and the parties were acting for themselves without legal representation at that time. The mother also sought an order in her Application in a Case as follows:
2. That henceforth, the respondent (father) be ordered to make all payments due and payable in accordance with paragraph 10 of Consent Orders made in the Family Court of Australia at Brisbane on 13 September 2013 within 30 days of receiving an invoice or notice requiring payment.
- Order 10 provided:
The parties shall contribute equally to the cost of school fees (including books, uniforms, and other incidental fees), extracurricular activities and fees incurred for medical treatment for their children, X and Y.
- The court should point out that the prior order 9 provided:
IT IS NOTED that child support is to be paid by the husband to the wife at the rate determined by the Child Support Agency. Such payments are to be made as and when they fall due.
- On the evidence before the court, the court is not satisfied that the Registrar of the Family Court of Australia at Brisbane had jurisdiction to make order 10 on 13 September 2013.
- Firstly, the court notes the provisions of section 66E of the Family Law Act 1975 (Cth) which provides:
Child maintenance order not to be made etc. if application for administrative assessment of child support could be made
(1) A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant ) against, or in favour of, a person (the respondent ) if an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child, or vice versa.
(2) Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).
(3) This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.
- This court is of the view that the provisions of section 66E of the Act and/or the above provisions of the Child Support (Assessment) Act 1989, indicate that order 10 was made without jurisdiction by the Family Court of Australia at Brisbane. As to the former Act, the Family Court of Australia at Brisbane did not have jurisdiction to make a child maintenance order if an application could properly be made at that time by the Applicant under the Child Support (Assessment) Act 1989 for the Respondent to be assessed in respect of the costs of the child and there is no evidence before this court to suggest that such an application could not have been made. As to the latter Act, there is no evidence before this court that a relevant Child Support Departure Application was applied for and/or made pursuant to section 117 of the latter Act.
- Even if the court is incorrect in this context in relation to order 10, this court, noting the father’s existing application to set aside order 10 due to a change of circumstances, would have invited the father to formally make an application under section 66S of the Act to discharge and/or vary order 10 and would have made such an order discharging and/or varying order 10, such that the father should not pay the mother the asserted outstanding arrears of $23,020.70 under order 10 and have no further obligation to make payments under order 10 (there being just cause for so doing by reason of the father’s above evidence including his Financial Statement evidence which the court accepts as opposed to the contrary evidence of the mother relating to this issue and/or circumstances of the children had changed so as to justify the variation and/or the circumstances of the father had changed so as to justify the variation, again accepting the father’s above evidence as opposed to the mother’s evidence in this context; see section 66S(2) and (3) of the Act).
- Accordingly, the court will make orders dismissing the mother’s Application in a Case filed 4 June 2015, and dismissing her proposed orders 12, 13 and 14 set out in her Case Outline, Exhibit C.