Child support – Full Court considers s 103X(3)(b) of the Child Support (Registration and Collection) Act 1988 as to the extent of reasons to be provided by the SSAT when making a decision – Whether appeal to the Court from the SSAT was on a question of law

In Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 (6 February 2014) the Full Court (Bryant CJ, Finn & Kent JJ) considered an appeal brought by the Child Support Registrar where Coates FM had set aside a decision of the SSAT. The SSAT’s decision “set Mr [Crabbe’s] adjusted taxable income at $367,097 from 1 July 2008 to 30 June 2009 and $158,177 from 1 July 2009 to 30 June 2010”, the SSAT “assum[ing] an increase of 4% per annum thereafter” (para 36).

The effect of the SSAT decision was that the father’s child support liability was increased from $339 per annum to about $38,634 “for 2008/09” and about $33,550 “for 2009/2010” (para 36).

The SSAT said that “in 2005 Mr Crabbe and [his de facto partner] Ms W started a business partnership…” (para 28); “[i]n 2006/07 the partnership had a gross income of $291,364”; “[i]n January 2008, the partnership acquired a lucrative training contract with [Department E]… the [Department E] contract provided income of $635,787, which was in addition to the company’s other training income of $722,594, making a total gross income of $1,358,381”; “ … the business structure was changed from a partnership to a company…” and Mr Crabbe “gifted his interest in his partnerships’ business to [a] company which was controlled by [Ms W]” (paras 29 and 31). The Full Court said “the SSAT went on in the following paragraphs to find that “the legal structure created by Mr [Crabbe] and Ms [W] is a sham” (para 32).

As to Coates FM’s reasons for setting aside the decision, the Full Court (para 41) noted that s 103X(3)(b) of the CSR&C Act provides:

“(3)    The SSAT must, within 14 days after making the decision, either:

a)      ( … )

b)      Give to each party a written notice (whether or not as part of the notice under paragraph 1(a)) that:

i.       sets out the reasons for the decision; and

ii.       sets out the findings on any material questions of fact; and

iii.      refers to evidence or other material on which the findings of fact are based.”

The Full Court said at para 42:

“His Honour observed with reference to s 103X(3)(b):

‘18.    Because of the wording requiring reasons, findings on questions of fact and the evidence supporting the findings, it is not only important that the Tribunal provides adequate reasons, it must do so as a matter of law. If it does not, then such is, in my view, an error of law because the Act mandates that the SSAT act in accordance with s 103X(3)(b).

( … )

19.     I accept the general proposition that there does not have to be exhaustive reasons, but they have to be presented in such a way to show how the decision was arrived at because of the mandate to show findings on questions of fact and a reference to the evidence supporting the findings. … ’

(Emphasis in original)

The Full Court said from para 46:

“[46]   … senior counsel for the Registrar identified the critical issue in the appeal as being the manner in which the Federal Magistrate treated the obligation of the SSAT to give reasons under s 103X in that his Honour treated s 103X as allowing a review of the adequacy of the SSAT’s reasons when no more is required than a setting out of the reasons. In doing so, his Honour had transgressed, it was submitted, ‘the dichotomy between an appeal on a question of law and an assessment of the merits of the case’ …

( … )

[54]    The following principles emerge from these authorities and have relevance to our decision as to whether the Federal Magistrate erred in his review of the SSAT decision in a manner which requires our intervention:

  • The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi) [Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744]);
  • The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi);
  • A wrong finding of fact is not an error of law (Al-Miahi);
  • A finding of fact based on reasoning that is ‘demonstrably unsound’ or an ‘illogical course’ or a ‘faulty process’ of reasoning is not an error of law (Al-Miahi);
  • Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons of an administrative decision maker must not be turned into a reconsideration of the merits of the decision (Wu Shan Liang) [Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6];
  • Section 103X(3)(b) of the Registration and Collection Act (by analogy with s 430 of the Migration Act) requires the SSAT to do no more than set out the findings which it did make on facts which it considered material to the decision which it made (Yusuf) [Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323].”

The Court said (from para 71):

“…     It was submitted that … his Honour was ‘concerned to assess whether the SSAT’s pathway to the finding’ (presumably the finding of a sham) ‘was sound’, when, as was further submitted, there is no obligation on the SSAT under s 103X(3)(b) to disclose the process of reasoning leading to its decision, nor the adequacy of the reasoning process, but rather only the basis of the decision.

[72]    This submission must be correct in light of the authorities referred to above, and thus this … ground of appeal has merit.

( … )

[74]    There is little doubt that his Honour’s reasons could be read as requiring a greater level of satisfaction on the part of the SSAT for its conclusion that a sham existed because of the nature of that finding. We agree with the Registrar that nothing in s 103X(3)(b) required that approach. ( … )

( … )

[76]    ( … ) We agree that [the Court’s judgment] can … be read as requiring an analysis of the evidence. The passages from the authorities cited above, particularly from Yusuf, indicate that an analysis of the evidence is not required. Section 103X(3)(b) requires only that the SSAT ‘refers to the evidence … on which the findings of fact were based’. His Honour can thus be said to have misdirected himself in this regard …”

The Full Court said further at para 87:

“We agree with his Honour that the SSAT’s assumption of a four per cent increase in the income of the company, and thus of Mr Crabbe’s share of that income, after 30 June 2010, was indeed an error of law. This is because there was no evidence to support that finding of fact. … ”

The Full Court allowed the Child Support Registrar’s appeal and allowed Mr Crabbe’s appeal against the SSAT’s decision to the extent necessary to set his adjusted taxable income at $158,177 for the period from 1 July 2010 to the end of the child support case.

Child Support Registrar wins appeal against FCC order staying a New Zealand child support assessment – An Australian court may discharge or vary a NZ child support liability provisionally subject to confirmation by a NZ court

In Child Support Registrar & Higgins and Anor [2016] FamCAFC 2 (22 January 2016) the Full Court (Bryant CJ, Ainslie-Wallace & Murphy JJ) heard an appeal by the Child Support Registrar (“CSR”) from Judge Burchardt’s “final order” made on the application of the payer father that “the mother … be permanently stayed [sic] from enforcing … child support arrears and … penalties” payable under a New Zealand assessment and later orders made with a view to rectifying that order. While the father lived in Australia the mother and child lived in New Zealand.

The Full Court said (from [34]):

“…     The relevant New Zealand agency has here paid to the mother amounts owing pursuant to the father’s child support liability. It seeks reimbursement from the father, via the agency of the CSR. Those circumstances render the father’s New Zealand child support liability in Australia an ‘agency reimbursement liability’ within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) (‘the CSRC Act’) … It is, as a consequence, a ‘registrable overseas maintenance liability’ within the meaning of that Act … Such a liability includes arrears owing in respect of an agency reimbursement liability …

[35]    The father’s New Zealand liability had been registered by the CSR … As such, it is a ‘registered maintenance liability’ … Once registered, the amounts owing by the father become ‘debts due to the Commonwealth’ and they become so ‘in accordance with the particulars of the liability entered in the Child Support Register’ … ‘In particular, the amounts are payable by the payer at the payment rate entered in the Register under paragraph 26(2)(d) in respect of the periods entered in the register under paragraphs 26(2)(a) and (b)’ …

[36]    Three matters central to the errors made by his Honour need to be understood. First, just as the father’s child support liability is, upon registration of the liability, not due to the mother (but, rather, to the Commonwealth), so too the mother was ‘no longer entitled to, and may not enforce payment of, amounts payable under the liability…’ … Secondly, the amounts owing by the father, including arrears, are determined by what is recorded in the Child Support Register.

[37]    The third crucial matter necessary to be understood, and also central to errors made by his Honour, is that the status of the father’s liability as a ‘registered maintenance liability’ emanating from it being a ‘registrable overseas maintenance liability’, gives rise to the application of specific legislative provisions which circumscribe an Australian court’s powers.

[38]    Section 111AA of the Family Law Act 1975 (Cth) (‘the FLA’) provides relevantly that ‘a court must not determine an application for payment of child … maintenance’ if the person seeking payment is habitually resident in New Zealand and the determination of the application ‘would require the court to make a decision mentioned in Article 1.2 of the Australia-New Zealand Agreement’. The latter includes, ‘a child support assessment issued by an administrative authority’ and ‘an assessment, order or agreement suspending, modifying or revoking a decision’ of that kind. …

[39]    Section 110 of the FLA permits relevant Regulations to be made. Specific Articles within the Australia-New Zealand Agreement are given effect by the Regulations … Relevantly, regs 36, 38 and 38A all have application to the application brought by the father.

[40]    The legislative framework just described gives rise to the following propositions relevant to the father’s application, the orders made by his Honour, and the issues central to the appeals before this Court:

•        The father was entitled to make an application to an Australian court of competent jurisdiction for an order in respect of his child support obligations in New Zealand …

•        However, when reg 36 applies, as it does here, any such application must be restricted to orders ‘discharging, suspending, reviving or varying’ his registered maintenance liability …

•        If the orders sought by the father meet that description, the court nevertheless cannot ‘determine’ that application. Rather, the court’s only power is to make orders which are ‘provisional’ and any such orders made must be expressed to be so …

•        In making provisional orders of the type to which the Regulation applies, the court must apply the law of Australia …

•        If a provisional order is made, it has no force or effect unless and until it is confirmed by a court of competent jurisdiction in New Zealand …

•        The New Zealand court may, according to the law of New Zealand, modify the provisional Australian order (or not) as that court might decide …

•        Only if the New Zealand court confirms the provisional order does it have force and effect in Australia … and

•        As a consequence, any effect upon the amount, terms and recoverability of the registered maintenance liability, otherwise particularised in the Australian Child Support Register … is dependent, ultimately, upon the terms of the confirmatory New Zealand order …

( … )

[68]    … his Honour was misled into conducting a process that bore no relationship to the process which needed to be undertaken if a provisional order of the type envisaged by reg 36 was to be made.

[69]    In determining an application under that regulation (properly formed in accordance with its terms) the court is required to apply not the law in force in Australia described broadly but, rather, the law in force in Australia ‘under the Act’ … The Act is defined in the Regulations to be the Family Law Act 1975 (Cth) … Thus, although the father’s liability is a child support liability, reg 36 does not contemplate, for example, the application of departure application principles to an application to discharge, suspend, revive or vary the liability under reg 36. Rather, what is contemplated is akin to an application under s 66S of the FLA …

[70]    Plainly enough, no such process took place before his Honour; reg 36(4) was not complied with and no foundation exists for order 2 providing that arrears of child support should be ‘discharged and revoked’.

( … )

[72]    The legislative framework earlier discussed makes it abundantly clear that his Honour had no power to make a final order in respect of a New Zealand obligation. The order was required to be provisional and to be expressed as such. Further, the Regulations give the court power to discharge, suspend, revive or vary an order, agreement or liability; they do not give power to permanently stay a New Zealand assessment or liability, nor to issue a permanent injunction to similar effect.

[73]    As has been seen, his Honour’s January 2013 order also purported to relieve the husband from the payment of late payment penalties. His Honour had no power to do so. Late payment penalties are distinct from a payer’s child support liabilities and any arrears of same. … The court has no power to ‘discharge’ or ‘revoke’ penalties; it is only the CSR who has the power to ‘…remit the late payment penalty or part of the late payment of penalty’ if satisfied of the relevant statutory preconditions …

[74]    The order purportedly made on 31 January 2013 was beyond power and must be set aside.

[75]    As we have earlier said, the attempt to ‘cure’ the defects in that order by designating the very same orders as ‘provisional’ did not in fact address the fundamental absence of power evident in the January orders. They, too, purportedly remained ‘final’ and they, too, sought to make an order which the Regulations give no power to make.

[76]    The order purportedly made on 21 May 2013 was beyond power and must also be set aside.

( … )

[78]    The artifice of the purported stay and adjournment is intended to render as final orders which are required to be provisional and which, as a consequence, accord to the courts of New Zealand the power to make final orders in respect of the assessments and liabilities of that country. The attempt to make Australian orders determinative or final in respect of a New Zealand assessment and liability is beyond power.”

The appeal was allowed and the orders of Judge Burchardt set aside. 

Child support – Enforcement – Leave granted to payer to apply for departure order – His late lodgment of tax returns created arrears of $10,575.82 – Redundant father caring for children for 150 nights a year successfully reduces child support to nil

In Child Support Registrar & McIntyre [2017] FCCA 2384 (delivered 3 October 2017, published 2 May 2018) Judge Henderson heard the Child Support Registrar’s application to enforce a father’s debt of $10,575.82, being child support arrears which included $1,992.30 in penalties. The father was made redundant in 2012 but did not file a tax return for that financial year, nor until February 2015 when he lodged his 2013 return declaring income of $228,000. When he did so the Registrar issued an assessment for the period of 1 July 2014 to 31 March 2015 based upon that income, which created the debt.

The husband then filed tax returns for the 2014 year declaring an income of $1,910 and as of 1 April 2015 the Registrar issued a new assessment as from that date, in which the father’s income was nil (but leaving the arrears as payable). The father sought leave under ss111 and 112 of the Child Support (Assessment) Act 1989 to depart from all assessments since December 2012 and that those assessments be reduced to nil.

The Court said (from [26]):

“… The child support debt has clearly arisen from the late filing of tax returns by Mr McIntyre for the tax years ended 2013 and 2014.

( … )

[28]   The decision of Bauer & Becker [[2009] FMCAfam 80] and McColl & McColl [[2013] FCCA 736] set out the matters the Court must have regard to in determining leave applications.

[29]   The first is to ensure that parties do not unnecessarily seek to review assessments of child support going back over many years, given there are simple and easily accessible administrative processes for those matters to be determined within the Child Support Agency processes.

[30] Secondly, as Judge Halligan said [in McColl]:

‘The Court must be satisfied the applicant has a prima facie case to have the assessments changed.

Secondly in determining whether the applicant has a prima facie case, his evidence on the issue is accepted without cross-examination unless inherently unbelievable or contradictory;

Thirdly the Court must consider whether there has been any delay by the applicant in bringing the application to change the relevant assessments and if so, who has responsibility for the delay;

Fourthly the Court must consider any hardship to be caused to all parties by granting or not granting the leave,

Finally any other relevant fact or circumstances.’

[31]   An inadequate explanation of delay is not the death knell of an application. Judge Roberts FM, as he then was said in Hacherl &Berrios [[2010] FMCAfam 668] that:

‘The equitable principles apply and he who comes to equity must come with clean hands.’

( … )

[36]   Mr McIntyre objected to the Registrar using his 2012/2013 taxable income to found the assessments and one basis of his objection was that he had been made redundant in October 2012.

( … )

[46]   Mr McIntyre has not provided in his affidavit any answer, any cogent reason for this delay, and this matter is highly relevant to both an application for leave and also for a departure application.

( … )

[51]   I accept if I do not grant leave Mr McIntyre will suffer hardship as he had a nil income in the period 1 July 2014 to 31 March 2015. The wife will not suffer hardship if I do not grant leave. The children may, as increasing their father’s debt will impact upon his capacity to provide for the children when they are in his care.

[52]   Mr McIntyre gives no cogent reasons for his delay in filing his income tax returns on time, in not filing the departure application within time, and in not availing himself of the administrative processes which he was advised of on at least two occasions post the Tribunals decision on 15 September 2015 to do. Indeed the very forms he needed to complete were provided to him by the Agency at that time.

[53]   Mr McIntyre sat on his hands and did nothing until the Registrar took recovery action against him.”

The Court concluded (from [59]):

“On these facts I refuse to grant the applicant leave to make a departure application for any period prior to 1 July 2014, however, I will grant him leave to make a departure application post 1 July 2014 due to the hardship upon him and the children in not so doing given his income was nil in the relevant assessment period and his substantial care of the children.

( … )

[65]   I find that the husband has made out his case that I not only make a departure order but that the assessment [creating the arrears] … be varied to nil for the following [reasons].

[66]   I find the ground of departure made out is under section 117(2)(c)(ia).

[67]   The special circumstance is that the application of the Act  in relation to the administrative assessment of child support would result    in an unjust and inequitable determination of the level of financial support to be provided by the father due to his income being nil for the relevant child support period and continuing.

[68]   I so find even though I accept this issue has arisen due to his failure to file income tax returns on time and take action as he was advised so to do within time.

[69]   I find it would be just and equitable as regards the children and the father to depart. The children live with their father for 150 nights or so a year and any further financial impost upon the father will only rebound upon the children.

[70]   Given that the wife pays the husband child support, I do not see any hardship to the wife in making the proposed departure order and if I did not do so, money to care for the children would go from the father to the mother. The mother earns an income and as she pays child support to the father she clearly can support the children whereas the father’s capacity is very limited.

[71]   Further, I am satisfied that the husband had a nil income in the relevant period and even prior to the relevant period and thus, it is otherwise proper to make the departure order sought such that the assessment issued 23 February 2015 for the period 1 July 2014 to 31 March 2015 be reduced to nil.”

Full Court reinstates decision of SSAT erroneously set aside by primary judge for procedural unfairness – SSAT had no obligation to provide procedural fairness to mother because a change of assessment in the father’s favour resulted in an overpayment to her



In Child Support Registrar & Pearce and Anor [2018] FamCAFC 10 (31 January 2018) the Full Court (Thackray, Aldridge & Watts JJ) heard the Child Support Registrar’s appeal against Judge Scarlett’s decision to set aside a SSAT decision. The father was employed by a trade association with an adjusted taxable income of $116,468 but ceased work on the basis that he would receive a further 2 month’s salary. When he ceased work, he lodged an income estimate with the Registrar of $17,585 per annum, which caused the child support payable to drop and the mother to then lodge an administrative departure application, seeking that the father’s assessment be restored based on his earning capacity.

A Senior Case Officer accepted the mother’s position and fixed the father’s assessed income at $116,000 per annum. An objection officer agreed, the father then appealing to the SSAT. Before the SSAT the father produced a letter evidencing that he was asked to resign from the Association. The SSAT accepted that the father’s change in employment was not of his own accord, so that the Senior Case Officer had erred in finding that the father’s lower assessment was unfair.

By the time the case had reached the SSAT the father had found a job paying $40,000 per annum, whereupon the SSAT determined that he should be assessed on that income as and from the date of that employment. The mother appealed to the Federal Circuit Court, arguing that the SSAT’s decision created an overpayment, which she was not given procedural fairness to address.

At first instance, the trial judge said that “[i]f there is to be the possibility of an overpayment, this may well cause hardship, and [that] for an unrepresented Appellant to be deprived of the opportunity to make some submissions on that point, as to the hardship and perhaps her children, would seem to me to be lacking in procedural fairness” ([15]).

The Full Court said (from [19]):

“The fact that a ground for changing an assessment is satisfied is not itself a sufficient basis for changing the assessment. The decision maker must also be satisfied, inter alia, that such a change would be ‘just and equitable’ (s 117(1)(b)(ii) of the Assessment Act). In determining if it would be ‘just and equitable’ s 117(4) requires various matters to be taken into account, including any ‘hardship’ that would be caused to the child or the carer entitled to child support by ‘the making of, or the refusal to [change the assessment]’.

[20] ( … ) The Tribunal was … undertaking a full merit review of the decision and was obliged ‘to do over again’ the task the Senior Case Officer had undertaken: Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41 …

[21] In conducting its review, the Tribunal was not limited by the terms of the mother’s application for a change of assessment, since s 98S(2) of the Assessment Act provides that the Registrar is not subject to such a limitation. …

( … )

[23] The gravamen of the Registrar’s appeal is that the approach adopted by the primary judge misconceived what the Tribunal had done.

[24] The Tribunal was satisfied that, in resigning from his employment with the Association, the father had not been motivated by a desire to affect his child support obligation. Accordingly:

• The father had demonstrated that it was not a major purpose of his change of employment to affect the administrative assessment of child support in relation to the children; and so


• The requirement of s 117(7B)(c) of the Assessment Act was not satisfied; and so

• The ground relied upon by the Senior Case Officer pursuant to s 117(2)(c)(ib) of the Assessment Act, that the father had an earning capacity of $116,000 per annum was not available; and so

• The question whether a change of assessment based on earning capacity was ‘just and equitable’, which included a consideration of the issues of ‘hardship’, did not arise.

[25] If that is where the Tribunal had left its deliberation the [lower] … assessment would have been restored. Given the father had been paying at the rate established by the [higher] … assessment, the Tribunal’s finding would have created a credit balance in the father’s favour, and without the Tribunal being permitted by the Assessment Act to address the issue of any consequential hardship.

( … )

[28] The mother’s complaint about not being given an opportunity to raise the ‘overpayment’ is without merit because the ‘overpayment’, and any ensuing hardship, arose from the Tribunal’s finding that the ground the Senior Case Officer relied upon was not available. As senior counsel for the Registrar observed, when a change of assessment is made increasing child support, and if payments are made according to the new assessment, a credit in favour of the liable parent will inevitably result if the assessment is later set aside on review. The fact there has been an ‘overpayment’ is nothing more than the inevitable consequence of a regime that allows for review of administrative decisions.

[29] The Tribunal had no obligation to identify for the mother’s benefit something that was apparent from the very nature of the decision that had to be made: Minister for Immigration and Citizenship v SZGUR [2011] HCA 1 … Further, even assuming it was open to the Tribunal to arrive at a decision more advantageous to the mother than the one actually made, there is nothing in the record to suggest that the mother was denied the opportunity to make submissions about the relevance of the ‘overpayment’.

[30] Accordingly, we agree that the approach adopted by the judge below was misconceived, and the appeal should be allowed. We propose to set aside all of the orders his Honour made and we will order instead that the mother’s appeal against the decision of the Tribunal be dismissed.”

Full Court overturns order staying Canadian child maintenance liability – FCC (in proceedings under the Family Law Regulations to vary the maintenance order) lacked jurisdiction to stay the order under s 111C of the Child Support (Registration & Collection) Act

In Child Support Registrar & Vladimir and Anor [2017] FamCAFC 56 (31 March 2017) a Canadian Court made child maintenance orders in 2011 and 2013 in favour of the mother (who lived in Canada) against the Australian resident father, which in 2014 were registered by the Child Support Registrar (“the CSR”) under s 13 of the Child Support (Registration and Collection) Act 1988 (Cth) (“CSRC Act” and “CSRCA”). The Full Court (Thackray, Strickland & Ainslie-Wallace JJ) heard the Child Support Registrar’s application for leave as a non-party to appeal a consent order made by Judge Cole in 2015 staying those orders.

The Full Court said (from [29]):

“Pursuant to the Canadian maintenance orders … the husband has a liability to pay child support in relation to the children.

[30]     Section 4 of the CSRC Act defines an ‘overseas maintenance liability’ as a liability that arises under:

‘(a) a maintenance order made by a judicial authority of a reciprocating jurisdiction; or … ’

[31]     A ‘reciprocating jurisdiction’ is defined in s 4 of the CSRC Act as a ‘foreign country’ or ‘a part of a foreign country’ that ‘is prescribed by the regulations to be a reciprocating jurisdiction’. The reference to ‘the regulations’ is a reference to the Family Law Regulations 1984 (Cth). Schedule 2 of the Regulations sets out a list of ‘reciprocating jurisdictions’, and British Columbia, Canada, is included. Therefore, the liabilities arising under the Canadian maintenance orders, having been made by a judge of a court in British Columbia, are clearly ‘overseas maintenance liabilities’.

[32]     ( … ) [T]he Canadian maintenance orders require the husband to pay child support in relation to the children. These orders are clearly registrable maintenance liabilities and the effect of registration is that pursuant to s 30(1) of the CSRC Act the amounts of child support payable by the husband are considered to be debts due to the Commonwealth in accordance with the particulars contained in the Child Support Register …

( … )

[34]     Under s 110 of the Act, the Regulations may make provision for and in relation to:

a)        the registration in, and enforcement by, courts having jurisdiction under the Act of maintenance orders made by courts of reciprocating jurisdictions (s 110(2)(a)); and

b)        the making of orders (including provisional orders) for the variation, discharge, suspension or revival of maintenance orders registered in accordance with Regulations under this section (s 110(2)(c)).

( … )

[37]     Clearly, s 110 applies to the Canadian maintenance orders, in so far as they relate to the child B. As a consequence, the powers provided for in the Regulations are applicable to those orders.

[38]     Relevantly, regs 36(2) and 36(3)(b) together provide that a party in Australia who is liable to make payments under an overseas maintenance order may apply to ‘a court having jurisdiction under the Act for an order discharging, suspending, reviving or varying an order, agreement or liability to which this regulation applies’. Regulation 38(1) then provides that any order made pursuant to reg 36 is provisional only, and reg 38A provides that such an order is of no effect ‘unless it is expressed to be provisional’ and ‘unless and until it is confirmed (either with or without modification) by a competent court of the reciprocating jurisdiction in which the overseas maintenance order affected by the provisional order was made’ (reg 38A(2)).

( … )

[44]     Section 111C provides as follows:

111C Stay orders

(1)       This section applies if a proceeding has been instituted:

(a)       in a court having jurisdiction under this Act; or

(b)       before the Registrar under Part VII; or

(c)       before the AAT for an AAT first review; or

(d)       under Part 6A or 7 of the Assessment Act. ( … )

[45]     The relevant paragraph is s 111C(1)(a), and the submission of the CSR is that the proper construction (thereof) requires that there be ‘proceedings’ on foot ‘where the Court’s jurisdiction to hear and determine those proceedings arises under the CSRC Act’. If that construction is correct, then his Honour did not have jurisdiction to make the orders under s 111C, because the proceedings on foot were in effect proceedings pursuant to the Regulations, and not the CSRC Act.

[46]     The reasons put by the CSR in support of this submission are as follows:

40       …

(a)       it is unlikely that Parliament would have intended to create a power to stay the operation or implementation of the CSRCA or the Assessment Act which fixed merely upon the happenstance of the Court in which the proceedings are being heard having a co-existent jurisdiction to decide cases under the Act;

(b)       the other paragraphs in subsection 111C(1) each relate to proceedings brought pursuant to or seeking relief under the CSRCA or the Assessment Act. This is consistent with an evident legislative intention that the proceedings referred to in s 111C(1)(a) must involve an exercise of jurisdiction under the CSRCA;

(c)       if s 111C(1)(a) were construed as applying to any proceeding in a Court having jurisdiction under the CSRCA irrespective of whether or not that was a proceeding instituted under the CSRCA, subsection 111C(1)(d) (proceedings under Part 6A or 7 of the Assessment Act) would be redundant. Jurisdiction under Parts 6A and 7 of the Assessment Act is, in s 99 of that Act, conferred in relevantly identical terms to the conferral of jurisdiction under the CSRCA in s 104. Thus, if a proceeding had been instituted under Part 6A of the Assessment Act, s 111C would already apply by virtue of subsection (1)(a) because the proceeding would necessarily be instituted in a court having jurisdiction under the CSRCA and subsection (1)(d) would be redundant. Such a construction is unlikely to reflect the intention of Parliament: see eg Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382 [71]; and

(d)       section 111A, headed ‘Simplified outline of this Part’, provides that ‘A court exercising jurisdiction under this Act has broad powers. A court may make an order staying or otherwise affecting the operation of the Assessment Act or this Act’. This supports the construction set out above.

41.      Moreover, this construction of s 111C(1)(a) is supported by the terms of s 111CA ‘Frivolous or vexatious proceedings’, pursuant to which a court ‘having jurisdiction under this Act’ may dismiss or make other orders if satisfied that ‘the proceeding is frivolous or vexatious’. Again, it is likely that Parliament intended that such power only apply under the CSRCA in respect of a court where the proceedings in which the jurisdiction is to be exercised are proceedings instituted under the CSRCA.

[47]     We agree with the construction placed on s 111C(1)(a) by the CSR, and for the reasons set out above. Indeed, that construction has support from at least one decision at first instance, namely Leisel & Leisel [2011] FamCA 624 at [14]-[17]. Thus, his Honour did not have jurisdiction to make the stay order under s 111C.”

The Full Court then considered whether the Federal Circuit Court had jurisdiction to order the stays under section 15 of the Federal Circuit Court of Australia Act 1999 (Cth) or its implied power, saying (at [52]):

“ … [T]he difficulty is that the Federal Circuit Court does not have jurisdiction to make a final order under the Regulations. The court can make an order altering the amount payable under a child support liability, but such an order only takes effect if it is confirmed by the overseas jurisdiction. Thus, it would seem to be inconsistent with principle (and perhaps beyond power) for the court to make, as an interim order that has the same effect, an order that it could never make as a final order, unless there was an express conferral of power to permit such an order. There is s 111C, but as we have explained, that section does not apply. Plainly, s 15 does not provide the answer either; it is a broad general power.”

The appellant was granted leave to appeal, the appeal was allowed and the stay orders set aside.

Property – Rectification of loan agreement in favour of creditor

In Chow & Harris and Anor [2010] FamCA 366 (14 May 2010), O’Reilly J allowed an application by the second respondent, a creditor of the husband (his sister) under s 90AE of the Family Law Act for rectification of a loan agreement so as to reflect their true agreement by including a default interest rate and requiring payment of the due amount from the spousal parties’ property settlement.

Interim hearing – Contested allegations of family violence – Father’s prior conviction for two serious assaults on mother – ICL supported supervised time – Father to spend no supervised or other time with 2 year old child due to risk of psychological harm to child 

In Churchill & Wileman [2014] FCCA 1047 (10 April 2014) Judge Terry considered interim parenting arrangements for a child aged 2 years and 3 months. The child had spent “no time with the father since separation save for an hour under the supervision of the mother and a friend of hers” (para 24). The father brought his application seeking supervised time incrementing towards unsupervised weekend time, while the mother sought an order that he have no time, alleging that he had “engaged in coercive and controlling violence throughout their relationship” (para 6); that the child “would not be safe in an unsupervised setting” and that the child “might be traumatised or re-traumatised if he spent time with the father in a supervised setting” (para 7).

The ICL “supported an order for supervised time … at the (omitted) Contact Centre … [as] the child would be safe from harm [there] … [and] it would be valuable for some time to occur before a family report was prepared” (para 5).

The Court said that the violence inflicted by the father upon the mother was such that “the father was charged with two counts of common assault, two counts of assault occasioning bodily harm, a number of counts of stalk and intimidate and one count of breaching a good behaviour bond” (para 17) to which “the father pleaded guilty” (para 18).

The Court said (at para 41):

“The father said that apart from the occasions when he admittedly assaulted the mother … he had not engaged in coercive and controlling violence or any violence at all during the relationship.”

but also said (at paras 22-23):

“What concerns me greatly about this evidence is that the father also attached to his affidavits a copy of the fact sheets which were handed up to the Court when he pleaded guilty, the facts to which he admitted, and those were not the facts set out in paragraphs 67 and 68 of his affidavit but facts that bear a very close resemblance to what the mother said happened during those incidents.

The fact that the father in his affidavit tried to minimise what occurred causes me great concern because the other thing which is in the fact sheets which formed the basis of the father’s guilty plea is that the mother sustained bruising as a result of the assaults on both occasions.”

When considering the child’s best interests, the Court said (from para 56):

“…     I cannot make findings about where the truth lies in respect of any of the matters in dispute and the father’s counsel submitted that I should be particularly cautious about how I treated the mother’s allegations about sustained violence when there had been no complaints to police except on the two occasions which resulted in the father being charged.

[57]    The father’s counsel asked me to have regard to the fact that there had been no complaints to doctors or to hospitals or to anyone else although ‘anyone else’ is not quite correct.

[58]    Counsel for the Independent Children’s Lawyer said that I should have regard to the fact that the father had no convictions for offences of violence save for the ones arising out of the [two assaults in July and August 2012].

[59]    However the fact that alleged perpetrators have no convictions or that no complaints were made by the alleged victim to persons in authority during the relationship does not necessarily mean that no violence occurred.

[60]    There are many reasons why victims of family violence do not … tell other people at the time about what is happening: shame that they have found themselves in this position; a misplaced belief that somehow they are responsible for what is happening; a willingness to give someone who on some occasions can be charming and kind a second chance; a desire not to lose a relationship; or fear about what might happen if they go to the police and make a complaint.

( … )

[63]    So the fact that no complaints were made in this case prior to July 2012 to police or hospitals does not tell me anything one way or the other. It might mean that nothing occurred but it might just mean that a whole lot of other things were operating for the mother.

[64]    I accept that people do sometimes exaggerate or fabricate allegations of violence but I have to make some assessment of probabilities and there are a number of things in this case which incline me to the view that I should treat the allegations seriously and act cautiously in the light of the allegations …

[65]    First, the mother did make some complaints at the time to friends about what was happening …

[66]    Second, the father undoubtedly perpetrated violence [when the two assaults occurred] and if the information in the fact sheets is correct and in my view I am entitled to provisionally consider that it is, serious acts of violence were committed on those occasions.

[67]    Third, the content of some of the text messages sent by the father, the threats and the language to the mother in those, lends some colour of credibility to the mother’s allegations.

[68]    Fourth, the mother’s allegations were detailed, they were not just general allegations such as “I was subjected to family violence” but were detailed and specific.”

As to whether time should occur at a contact centre, rather than no time, the Court said (from para 81):

“…     It is true that if X spent time with the father at a contact centre he would not be at risk of physical harm. …

( … )

[104] I cannot make any findings about whether the allegations the mother makes about the father are true but as I have already indicated they are extremely serious. If they are true then the father has caused harm to his child. A parent harms a child when they harm the other parent. If the allegations are true then the father’s denial of his violence and his attempt to blame the mother for his predicament means that there may be no likelihood of him being able to change in the future.

[105] If they are true he is an exceptionally poor role model for the child and there are serious implications for a child in being exposed to a perpetrator of family violence. They can grow up to be perpetrators of family violence themselves. They can become depressed. They can be aggressive to the other children at kindergarten. It is an extremely serious situation.

( … )

[111] In some circumstances [time at a contact centre prior to a family report] might be a valid approach but I am not necessarily convinced that it would be a valid approach in this case because in my view the problem of whether or not the child should spend time with the father is a complex one.

[112] The child might be protected from physical harm at the contact centre but I cannot make findings about the psychological effect on the child of spending time with the father if the mother’s allegations are true.

( … )

[114] I am not necessarily convinced that it is critically important for the purposes of having a valuable family report that some time occur before the report is prepared.”

The Court ordered that until further order the mother have sole parental responsibility and that the father spend no time with the child. 

Artificial conception – Birth mother unsuccessfully appeals finding that she and egg donor were in a de facto relationship at time of conception so that the donor was a parent of the child under s 60H – Extent and nature of parties’ text messaging found to be consistent with de facto relationship

In Clarence & Crisp [2016] FamCAFC 157 (18 August 2016) the Full Court (Thackray, Ainslie-Wallace & Aldridge JJ) heard the birth mother’s appeal against a parenting order made in respect of her daughter who was conceived with an egg supplied by the respondent by a medical procedure performed on 11 July 2011, the Court saying (at [3]):

“[3]    If the parties were in a de facto relationship on that day [of conception] then they were both the child’s ‘parents’ for the purposes of [s 60H of] the Family Law Act 1975 … ”

At first instance, Berman J found that while the parties were living separately as at the date of conception they were in a de facto relationship, so that the respondent was a parent. It was common ground that the parties had commenced a de facto relationship in 2004 but the appellant argued that they separated on 21 March 2011 when the respondent left the home, whereas the respondent argued that she continued to spend four or five nights a week at the birth mother’s home until August 2011.

The Full Court said ([12]-[13]):

“[12]   His Honour found that although the respondent had not stayed overnight as often as alleged, she was nevertheless a ‘frequent visitor’ to the parties’ former home. In arriving at that conclusion, his Honour said that he derived ‘some assistance from the extent and nature of the communication between the parties, but in particular the tenor of their text messaging during the relevant period’ (by which his Honour meant the time from 21 March 2011 to the date on which the child was conceived).

[13]    The trial judge also noted that the parties continued a sexual relationship, albeit the frequency of sexual relations was in dispute. …”

The Full Court (at [14]-[15]) set out passages from Berman J’s judgment, including the following:

“83.    A feature of the parties’ relationship was their heavy reliance upon text messaging as a form of communication. The detail of their text messaging in particular centred around 11 July 2011 is significant in the overall factual matrix and determination as to whether the parties were in a de facto relationship at the relevant time.

( … )

100.   Certain matters are not in dispute. The parties engaged in ongoing and frequent text messaging as a significant if not primary source of communication when they were not in [each] other’s physical presence. The [appellant’s] case is not that the parties did not spend time together … It is more a matter of the nature of the relationship that existed between the parties following their physical separation in March 2011 rather than the frequency of time spent together. Certainly their physical relationship is important, but I consider it to be but one of a number of potential relationship indicators.

101.   On the [appellant’s] case, whilst the parties did not engage in regular sexual relations, their post-separation relationship was not without intimacy. They also engaged in social activity not just restricted to each other, but including family and friends.

102.   The [appellant] properly admits to exchanges between the parties expressing their love for each other on a number of occasions, but with increasing frequency leading up to 11 July 2011 being the date of implantation of the [respondent’s] fertilised embryo.”

 The Full Court continued (at [18]-[19]):

“[19]   His Honour found that in the period from 6 May 2011 to 26 July 2011 there had been 850 text messages between the parties on topics which ranged ‘from the mundane to the highly personal’ … describing some as ‘highly personal’.

His Honour also found:

142. The messaging contains florid announcements of each of the parties’ love for the other in circumstances where I consider that the expressions are not empty statements but a genuine reflection of how the parties felt towards each other. There are messages that indicate that the parties were happy with each other and pleased to be in their company but equally there are messages that are critical of the other’s conduct.

143  I consider that the frequency of the text messaging and the range of sentiments expressed and exchanged between the parties is not as would be expected where there are irreconcilable differences between them. There may have been dissatisfaction and disharmony, but the content of the messaging is consistent with parties who are either in a relationship or have not yet determined that the relationship is over and they have nothing to offer the other.”

The Full Court added (from [24]):

“[24]   It might be argued that the test for the purposes of s 48(2) (i.e. that the spouses began to live ‘separately and apart’) is easier to meet than the test required for s 44(5) (i.e. the relationship of de facto partners came to an ‘end’). We say this, in part, because s 48(3) provides that married people who have ‘lived separately and apart’ for more than a year before filing for divorce cannot be divorced if there is a ‘reasonable likelihood of cohabitation being resumed’, presumably on the basis that their marriage might not be at an ‘end’.

[25]    Reflection on the etymological differences between s 48 and s 44(5) might also lead to an argument that a de facto relationship does not come to an ‘end’ until such time as there is no reasonable likelihood of it being resumed. We do not wish to be seen as accepting there is merit in such an argument, since it was not advanced before us in those terms. It also needs to be kept in mind that the question of whether there is a reasonable likelihood of cohabitation being resumed is not considered at the time a married couple begins to live ‘separately and apart’, but rather at the time a divorce application is before the court. On the other hand, the question of when a de facto relationship has come to an end, at least in a case such as the present, must be judged not by reference to the position at the time of the hearing, but rather at an earlier date.

[26]    We draw attention to the difference in wording between the provisions of the Act only to suggest that it ought not be the appellant who complains about his Honour having been guided by case law directed to the date on which a married couple have begun to live ‘separately and apart’, since such findings do not involve any greater level of finality than a finding that a couple’s relationship is at an ‘end’, and arguably involve something less.

[27]    Although we conclude there is no basis for complaint by the appellant, we nevertheless consider that his Honour misdirected himself … when he posed the question of whether the parties had ‘separated’. While that is a question which must be asked in the case of a married couple seeking a divorce, it is a potentially misleading question in cases such as the present, where the issue is whether a de facto relationship existed at a particular point in time. However, his Honour ultimately answered the real question he was required to consider when he found … that ‘the de facto relationship endured and continued beyond the date of conception’.

[28] Accordingly, we accept the submission of senior counsel for the respondent that nothing turns on the trial judge’s discussion of whether the parties had ‘separated’ …”

In considering whether Berman J had taken sufficient account of the respondent leaving the home, the Full Court said (from [51]):

“[51]   Ultimately … we consider the real test (since it conforms with the statute as a matter of logic) was that identified by Murphy JA earlier in H v P [[2011] WASCA 78]:

[56]    a de facto relationship is inherently terminable at any time, and continues to exist only insofar as the indicia which give the relationship its … character continue to exist.

[52]    Looked at in this way, the task of determining whether a relationship has ended at or before a particular date is precisely the same task that must be performed when determining whether a de facto relationship exists in the first place – i.e. by reference to the indicia laid down in the legislation. Indeed, in the present case it is not appropriate to conceptualise the question as being whether the relationship ended when the respondent left the home but rather whether it subsisted on the date P was conceived.

[53]    Framing the question in this way pays proper regard to the fact that the Act [s 4AA(3)] provides that ‘no particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship’, and ensures that regard is had to all the circumstances [s 4AA(4)]; not just those which changed on the date the relationship allegedly came to an ‘end’.

[54]    Framing the question in this way also serves to emphasise that the onus of proving that there was a de facto relationship fell on the respondent. It was not for the appellant to prove the relationship had ended: S v B [2004] QCA 449 … at [2], [5] and [49]-[50]; H v P [2011] WASCA 78 at [58].

( … )

[64]    His Honour’s task was to determine whether the parties were still in a de facto relationship on the date of the child’s conception. That question need not, in our view, be answered by reference to circumstances prevailing at a later time when both parties accepted the relationship had ended. Although Dutney J in S v B at [34] said it was ‘necessary to work backwards’ to determine whether the relationship ended any earlier than the date on which it had manifestly ended, we do not consider the failure to follow such a process constitutes appealable error.”

The birth mother’s appeal was dismissed with costs.

De facto relationship found to exist between 2001 and 2012, where de facto husband alleged that separation occurred in 2002 – No common residence or joint bank accounts – Parties engaged in a mock wedding reception and had a child together

In Clark & Ors [2014] FCCA 234 (11 March 2014) Judge Burchardt considered a case where the parties had by 31 July 2001 commenced a de facto relationship (para 10), where the de facto husband alleged that the relationship ended in 2002 while the de facto wife alleged that it ended in 2012 (para 2).

The de facto wife’s case as to common residence during the disputed period included that the de facto husband “invariably [spent] Friday to Monday with her” (para 26) and that she and her three children of a previous relationship “travel[led] extensively and regularly with [the de facto husband] overseas” (para 12). She also alleged “that a sexual relationship with the respondent continued throughout all the years to 2012” (para 26).

The de facto husband filed an affidavit sworn by his ex-wife deposing that “she and the [de facto husband] stayed at each other’s homes on a regular basis and regularly shared meals … they usually spent two or three nights per week together and weekends usually on a Saturday or Sunday [and that they] had resumed their relationship in 2002 until final separation in February 2012” (para 46).

The parties had a child together in 2006, the de facto husband alleging that “the parties had ‘a fling’” at this time (para 14). The Court said (from para 21):

“…       The [de facto husband’s] case was that following [the] birth, he agreed to conduct a mock wedding reception in order to ensure that persons within his and the [de facto wife’s] community would not attach the stigma of illegitimacy to [their child] … [He] denied having exchanged rings … on the day of the mock wedding reception.

( … )

[66]     I … saw a number of DVDs in the presence of the parties and their representatives.

[67]     First shown to the Court was the elaborate charade … in January 2008. If this was an attempt to convince the world that the parties were in a permanent relationship and married and that their daughter was not born out of wedlock it was certainly a very elaborate one. The DVD is expertly taken and produced. It shows the parties arriving to meet numerous guests and having what one would describe as normal happy reactions one would ordinarily see at a wedding feast. … They are announced as Mr and Mrs Clark. … The parties sing a love song to one another in it. At one point, the [de facto wife] says, “My soul mate is my husband now”, at a point where the [de facto husband] is beaming approvingly in the background. At another stage, the [de facto husband] says, “Thank you for coming to celebrate our marriage. I am going to spend the rest of my life with my soul mate”.

( … )

[77]     … the DVD of the parties mock wedding reception in 2008 sits, at best, exceptionally uneasily with the [de facto husband’s] assertion that the parties were not in a relationship and that [their child] was merely conceived as a result of a fling in late 2006. …”

The Court also noted evidence including “photographs … redolent of a relationship of something more than ordinary friendship”, a “Valentine’s Day note (undated) which asserts, ‘Love you now and forever, my valentine and my wife’”, “a wedding invitation … addressed to the [the parties] as Mr and Mrs Clark in 2010” (para 48); a draft Financial Agreement (para 53); “a Medicare card with the names of the [de facto husband], the [de facto wife] and the [de facto wife’s] three daughters which was valid until 07/2008” (para 54).

As to common residence, the Court said (at para 89):

“The [de facto husband] continued to maintain an intimate relationship with the [de facto wife] … While it is immediately apparent that he cannot have spent every single weekend between 2002 and 2012 that he was not overseas with the [de facto wife] I accept the general thrust of the evidence of the [de facto wife] and her children that the [de facto husband] was a routine attendee throughout.”

As to the evidence of the de facto husband’s former wife, the Court said (at para 100):

“Her evidence has not been tested by cross-examination and I have not had the advantage of assessing her evidence accordingly. It should be noted that in any event, [the ex-wife’s] affidavit only asserts a relationship between her and the [de facto husband] between 2002 and February 2012. It gives no details of the nature of that relationship and does not touch at all upon the matters asserted as to the relationship between the [de facto husband] and the [de facto wife] … (scarcely surprisingly perhaps). … I find that the [de facto husband’s] assertion that he continued his relationship with [his ex-wife] in secret unacceptable. …”

The Court concluded (at para 115):

“ … The materials point overwhelmingly to a view that the parties were in a de facto relationship within the meaning of the Act between 2002 and 2012. While there are clearly some indicia that would point against this, such as the lack of permanent joint residence, the non- intermingling of bank accounts and other financial resources, and the fact of whatever relationship the applicant continued with [the husband’s ex-wife] these are all vastly outweighed by all the other numerous [s 4AA] factors to which I have referred.”

The Court declared that a de facto relationship existed between 2001 and 2012.

Father’s unilateral removal of child to Australia from non-Convention country – Child feeling lonely in Australia – Allowed to return to Japan where child had lived with mother for years

In Coburn & Sakura [2011] FamCA 640 (11 August 2011) the mother of a ten year old child relocated from Sydney to Tokyo with the father’s consent, later being granted “custody” of the child by an order of the Tokyo Family Court. Following the earthquakes in Tokyo and nuclear incident in Fukushima the mother moved the child from Japan to Country 1 to stay for a short period with the child’s paternal grandparents. Japan is a non-Convention country and, not being a “prescribed overseas jurisdiction” under Reg 23 of the Family Law Regulations, the custody order was not registrable or enforceable in Australia. Subsequent to that move, and without the mother’s consent, the father removed the child from Country 1 and brought him to Australia where he brought parenting proceedings.

Ryan J reviewed the Full Court’s decision in Kwon & Lee (2006) FLC 93-287 as to the principles to be applied in non-Abduction Convention cases where an Australian court’s jurisdiction under the Family Law Act is properly invoked and the child is in Australia. After reviewing the evidence including the family consultant’s view that the child felt isolated and lonely in Australia; the child’s stronger attachment to the mother and close relationship with the mother’s family in Japan; the child’s strong Japanese cultural influence; and the lack of any health risk by living in Japan as alleged by the father. 

Ryan J concluded at para 65:

“The child’s best interests require his prompt return to Japan and for any outstanding parenting issues to be determined in the country where he is resident and where, with the parties’ agreement, he has lived for years.”