BINDING CHILD SUPPORT AGREEMENTS TWILIGHT SEMINAR WEBINAR Child
BINDING CHILD SUPPORT AGREEMENTS TWILIGHT SEMINAR / WEBINAR – Child Support Applications in the Courts Judge Margaret Cassidy 1 March 2018
TODAY’S PRESENTATION: 1. Types of Agreements 2. Setting aside Agreements 3. Fraud/failure to disclose 4. Undue influence 5. Defining ‘exceptional circumstances’ 6. Practical considerations
Limited Child Support Agreement OR Binding Child Support Agreement
Limited Child Support Agreements • Formal requirements, section 80 E CSAA • Termination of a Limited Child Support Agreement: i. Can be terminated and replaced, BUT ii. Cannot be varied Attribution: "Miniature Sunset Cake" (CC BY-NC-ND 2. 0) by Petit. Plat - Stephanie Kilgast
Limited or Binding Agreements must comply with the following provisions (section 81): Section 82 Section 84 Section 83
Limited or Binding Agreements must comply with the following provisions (section 81): Section 82: The children " 933" (CC BY 2. 0) by _Dinkel_
Limited or Binding Agreements must comply with the following provisions (section 81): Section 83: The parties (Parent or non-parent carers) "Parents" (CC BY-ND 2. 0) by jbachman 01
Limited or Binding Agreements must comply with the following provisions (section 81): Section 84: o o Periodic child support Non-periodic child support Lump sum payments Variation of annual rate and end date Attribution: "Aussie money notes" (CC BY 2. 0) by vagawi �
Binding Child Support Agreements Formal requirements: • Must be in writing • Signed by the parties • Statement of independent legal advice • The Agreement has not been terminated • The Agreement or copy given to each party "balance" (CC BY-SA 2. 0) by iulian 28
Setting aside Agreements
Setting aside Limited Child Support Agreements: Section 136(2)(c) CSAA requires: • Significant change of circumstances OR • Agreement is not proper Note: This test for setting aside the Agreement is far easier to satisfy that the test for a Binding Child Support Agreement
Setting aside a Binding Child Support Agreement Section 80 CA - • Agreement cannot be varied • Can be terminated through consent Section 136(2) – (By court) • Fraud or failure to disclose material information • Undue influence, unconscionable or other conduct • Exceptional circumstances (Applicant or child suffer hardship)
Fraud/ Failure to disclose
Fraud or failure to disclose FRAUD – • No reported cases but see s 79 A(1)(a) and s 90 K(1)(a) FLA: “conscious wrong doing or some form of deceit” FAILURE TO DISCLOSE – • Venson v Venson (No 2) (2010) Fam CA 963 "Sailing in Carrick Roads" (CC BY 2. 0) by Tim Green aka atoach”
Fraud or failure to disclose cont. FAILURE TO DISCLOSE – • Telama & Telama (No. 2) [2017] Fam. CAFC 194 at [29]: “…the fact of non-disclosure was so obvious and material it was necessary for the primary Judge to explain how and why the Respondent’s oral evidence and unsworn explanation were sufficient to meet that deficiency and resolve the confusion created by his failure, for example, to produce necessary and requested documents. Her Honour’s reasons do not address that conundrum and in circumstances where the legal onus sat with the Respondent the findings as to ‘exceptional circumstances’ and ‘hardship’ were not available. ”
Undue influence/ duress/ unconscionability
Undue influence/duress/ unconscionability Venson (No 2) (Supra) per Austin J at [66]: “…in simplistic terms, unconscionable conduct is evocative of unscrupulousness by reason of which one party take improper advantage of another. The father has failed to prove that the mother acted in that vein, …”
What are exceptional circumstances?
Exceptional circumstances • Can cumulative factors make up exceptional circumstances? Gallup v Gallup (2009) FMCA Fam 839 at [90]: “It seems to me that none of the factors, of themselves, put forward by the father are exceptional but that cumulatively they take on a difference character, which I find amount to exceptional circumstances. ”
Exceptional circumstances cont. Balzano (2010) Fam. CAFC 11
Exceptional circumstances cont. Master v Cheyne (2016) FCC 98 -072 • Murphy J says change in s 12 CSAA terminating events are relevant in determining exceptional circumstances • Aldridge J says change in s 12 CSAA terminating events are not relevant in determining exceptional circumstances "Dice" (CC BY 2. 0) by eclesh
Exceptional circumstances cont. Jessup v Jessup [2010] FMCA 124 • Husband’s evidence inadequate as to his income, expenses and net asset position
Practical considerations
Practical considerations q. Consider advising client on a Limited Binding Child Support Agreement, Departure Order and assessment under the legislation q. Ensure that adequate disclosure has occurred if entering a Binding Child Support Agreement q. Ensure the client advised of the advantages and disadvantages before executing the Agreement q. Provide the Department of Human Services with a copy of the draft Agreement to obtain approval prior to the document being executed by the parties q. Define any terms clearly in the Agreement
Practical considerations q Ensure the Agreement deals with: Changes to care arrangements; ii. Unemployment and other income changes; iii. Re-partnering and second families; and iv. Additional child support cases. i.
Acknowledgment This presentation was gratefully assisted by the following papers: Melinda Winning, ‘Binding Child Support Agreements: Exceptional or Inflexible? ’ Family Law Intensive, 2014, Perth *Brett Walker-Roberts. Department of Human Services. ‘Child Support Agreements. ’ Family Law Section, Law Council of Australia. Grant Thornton Publishing. *Please note that Brett Walker Roberts’ paper is currently available to delegates of the Family Law Intensives and will be made available to all Law Council members in June 2018.
Bibliography A. Cases Balzano (2010) Fam. CAFC 11 Gallup v Gallup (2009) FMCA Fam 839 Jessup v Jessup [2010] FMCA 124 Master v Cheyne (2016) FCC 98 -072 Telama & Telama (No. 2) [2017] Fam. CAFC 194 Venson v Venson (No 2) (2010) Fam CA 963 B. Legislation Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth)
CURRENT ISSUES IN CHILD SUPPORT Christopher Bishop, Special Counsel FLPA TWILIGHT SEMINAR - WEBINAR : 1 March 2018 Melbourne | Sydney | Brisbane | Canberra | Perth 28
Terminating Events & Agreements Section 12 and 80 D of the Child Support (Assessment) Act 1989 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 29
The effect of a terminating event on child support agreements § The Child Support Guide - Chapter 2. 7. 5: Terminating events & child support agreements When a terminating event under section 12 occurs, the child support assessment ends, including where the assessment was affected by a child support agreement. § Section 4 of the Child Support (Assessment) Act 1989 (Assessment Act) defines a child support terminating event as having the meaning given to it by section 12. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 30
Section 12: Terminating Events § Child Support Terminating Events include: • The child turns 18; • The child ceases to be in the care of the parents; • A parent ceases to be a resident of Australia and does not immediately become a resident of a reciprocating jurisdiction; • The child is adopted; • The child become a member of a couple; • The child or parent dies; • Reconciliation. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 31
An election to end § Under section 12(4)(a)(i) of the Assessment Act: • A child support terminating event occurs if a receiving parent makes an election to end the child support liability under section 151 of the Assessment Act from a specified day; and • The election is accepted by the Registrar (Note: requirement for approval by Centrelink); and • The specified day arrives. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 32
The consequences of a child support terminating event § The Child Support Guide - Chapter 2. 7. 5: Terminating events & child support agreements: • § If a payee later reapplies for an assessment, and the application is accepted, the assessment will generally be made using the formula assessment provisions. A child support agreement ceases to be in force when a terminating event occurs. This is because section 95(2) provides that the relevant agreement provisions have effect as if they were an order made by consent by a court under Division 4 of Part 7, and section 142(1) provides that such an order ceases to be in force when a terminating event occurs. In accordance with the Department’s policy the happening of a child support terminating event also has the effect of terminating a child support agreement, without the need for section 80 D /80 G to be satisfied. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 33
The consequence of a terminating event on a BCSA § Masters & Cheyne [2016] Fam. CAFC 255 • Aldridge J at [133]: - If child support terminating events applied to agreements, both s 80 D and 80 G would be entirely otiose and rendered quite pointless. - Those provisions provide a code and a child support agreement can only be terminated by their application. - It is not a reasonable construction of the Act that a BCSA could remain on foot and binding but the provisions within that agreement rendered nugatory by application of section 12. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 34
The consequence of a terminating event on a BCSA § Masters & Cheyne [2016] Fam. CAFC 255 • Murphy J at [28]-[29]: - Need to appreciate that a BCSA operates as an agreement and as a child support assessment (albeit in accordance with the terms of the agreement); - Section 80 D can then operate exclusively and exhaustively so as to determine the BCSA; - Sections 12 and 142 can operate to determine the child support payment under the assessment; - There is no inconsistency between the two. - On of the effects of a court order is that it is susceptible to cessation upon the happening of a child support terminating event under section 12. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 35
The consequence of a child support terminating event § Points to consider: • There is always a Part 5 administrative assessment that determines the child support liability payable: - It is made subject to and may be amended by any departure determination, child support agreement or court order: section 35 C and 75(4) of the Assessment Act - Every amended assessment is taken to be the administrative assessment: section 75(6) of the Assessment Act; • Section 151 is an election to end the child support liability payable; • Section 95(2) provides that the terms of the agreement are to have effect, for the purposes of Part 5, as if they were orders made by consent – does this necessarily mean that section 142, which is found in Part 7, applies to render the terms of an agreement no longer in force? MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 36
Applications for Leave to Depart Section 111 and 112 of the Child Support (Assessment) Act 1989 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 37
Applications to depart from the administrative assessment § A departure determination or departure order cannot be made, without leave, in respect of a period greater than 18 months prior to the date of application: section 98 S(3 B) and 118(2 B) of the Assessment Act. § An application for leave is made pursuant to section 111 § The requirement was introduced as part of scheme reform following recommendations of the Ministerial Taskforce on Child Support: • Retrospective departures – highly undesirable; • May be some exceptional circumstances where appropriate • See discussion in Bauer & Becker [2009] FMCAfam 480 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 38
Applications for leave § Leave is granted under section 112 § The Court must taken in to account the following factors: • Any responsibility, and reason, for the delay in making the application for departure: section 112(4)(a); • Any hardship as between the parents: section 112(4)(b) and (c): see Whitford & Whitford (1979) FLC 90 -612); • Any other relevant factor: section 112(5): - Whethere is a prima facie case for departure: Mc. Coll & Mc. Coll [2013] FCCA 736; - Failure to lodge income tax returns: Child Support Registrar & Rawlings & Anor [2013] FCCA 370; - Whether the Child Support Registrar has initiated enforcement proceedings: Dalton & Munro & Anor [2015] FCCA 2945. § The Court may: • grant leave to the Child Support Registrar to make a departure determination; or • grant leave and proceed to determine whether a departure order should be made. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 39
Is the administrative assessment in force? § Balshaw & Anor [2016] FCCA 1176 at [28]-[30] A liable parent or a carer entitled to child support cannot make a departure application under s. 98 B unless, at the time of application, there is an administrative assessment in force in relation to the child. An administrative assessment of child support is not in force in relation to a child once a child support terminating event has happened. Liability to pay child support is the critical feature of an administrative assessment and this liability ends upon the occurrence of a child support terminating event (s. 31(2) of the Act). Neither the Applicant father nor the First Respondent mother can now make an application to the Registrar under s. 98 B. § Reflected in the Child Support Guide – Chapter 2. 6. 1 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 40
Is the administrative assessment in force? § Consequences: • If the case has ended in respect of all the children of the assessment; • If the case has ended in respect of one of the children of the assessment; • If the applicant wishes to lodge an application for departure within the first 18 months following the end of the case: - Section 98 B: administrative assessment must be in force - Section 116: must have an application pending in the Court - Section 111: leave can only be sought in respect of a period greater than 18 months MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 41
Stay Orders Section 111 C of the Child Support (Registration and Collection) Act 1988 Melbourne | Sydney | Brisbane | Canberra | Perth 42
When can an application for a stay be made? § Subsection 111 C(1) of the Child Support (Registration and Collection) Act 1988 (Collection Act) specifies the circumstances in which it applies: 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 6 A or 7 of the Assessment Act. Melbourne | Sydney | Brisbane | Canberra | Perth 43
When can an application for a stay be made? § Subsection 111 C(1)(a) This section applies if a proceeding has been instituted: (a) in a court having jurisdiction under this Act. § Historically, a broad interpretation was adopted. • Section 4 of the Collection Act defines a court having jurisdiction under this Act • Section 104 of the Collection Act confers jurisdiction on: - The Family Court; - The Federal Circuit Court; - The Supreme Court of the Northern Territory; and - The Family Court of each state • Any application pending was taken to satisfy the subsection MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 44
When can an application for a stay be made? § The alternate construction: Subsection 111 C(1)(a) requires • The Court to have jurisdiction under the Collection Act; and • The proceeding to have been instituted under the Collection Act. § Premised on: • Unlikely the power was intended to be enlivened simply by an application pending in a court with co-existent jurisdiction; • Consistent with s 111 C(1)(b), (c) and (d) which require an exercise of jurisdiction under the child support legislation; and • The broad interpretation renders 111 C(d) redundant. • Some support from Leisel & Leisel [2011] Fam. CA 624 at [14]-[17]. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 45
When can an application for a stay be made? § Lloyd & Tasker & Child Support Registrar [2016] FCCA 297 • Appeal against a decision of the Administrative Appeals Tribunal under s 44 AAA of the AAT Act; • Prior to tribunal amalgamation, such appeals were brought under section 110 B of the Collection Act – therefore s 111 C applied; • The Court held that it had no jurisdiction to make a stay order under section 111 C as no proceeding had been initiated under the Collection Act MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 46
When can an application for a stay be made? § The construction issue was considered by the Full Court of the Family Court in Child Support Registrar & Vladimir & Anor [2017] Fam. CAFC 56 at [46]-[47]: The relevant paragraph is s 111 C(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 111 C, because the proceedings on foot were in effect proceedings pursuant to the Regulations, and not the CSRC Act. …. We agree with the construction placed on s 111 C(1)(a) by the CSR, and for the reasons set out above…. § Reaffirmed in Dove & Tolmay & Child Support Registrar [2017] Fam. CAFC 253 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 47
Who can bring an application for a stay order? § Subsection 111 C(2) permits a party to the underlying proceeding to apply for an order: (2) A party to the proceeding may, subject to the Family Law Act 1975: (a) in the case of a proceeding instituted in a court – apply to that court for an order under this section; or (b) otherwise – apply to a court having jurisdiction under this Act for an order under this section. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 48
Who can bring an application for a stay order? § The parties are the parties to the underlying proceeding that enlivens the Court’s jurisdiction. • Where order sought that seek to affect the statutory function of the Child Support Registrar. - Child Support Registrar & Vladimir and Anor [2017] Fam. CAFC 56 at [17] • The Registrar is a party “directly affected” or “sufficiently interested” • Requirement to serve a copy of any child support application on the Registrar: - Federal Circuit Court Rules 2001, r 25 A. 07 - Family Law Rules 2004, r 4. 23 MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 49
Where can an application for a stay order be made? § The relevant court is also determined by the underlying proceeding that enlivens the Court’s jurisdiction : • Where 111 C(1) is satisfied by a proceeding instituted in a court, the application for the stay must be made in that court; and • Where 111 C(1) is satisfied by a proceeding instituted before the Child Support Registrar or the Administrative Appeals Tribunal, the application for a stay may be made to any court with jurisdiction under the Collection Act. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 50
The Exercise of the Discretion § Subsection 111 C(3) provides for the types of orders that the Court may make: (3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 51
The Exercise of the Discretion § to The test that is to be applied in determining whether it is appropriate to exercise the discretion under section 111 C was discussed in Jones v Child Support Registrar [2007] FCA 1732 at [10]: It appears to me that, before a stay could be granted, I would have be satisfied that there is a serious question to be tried on the appeal or, putting it another way, that there is at least some arguable basis for suggesting the appeal might succeed. Secondly, it would be necessary for the Court to have regard to the balance of convenience. Section 111 C(3) of the Act requires the Court to take into account the interests of the persons who may be affected by the outcome of the proceeding. That, I suspect, does not go much beyond the balance of convenience. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 52
The Exercise of the Discretion § Child Support Registrar & Higgins and Anor [2016] Fam. CAFC 2 at [50]: It can be seen that the court is given a wide discretion to make orders “until a decision of the court. . . determining the proceedings becomes final” or “until such other period as is specified in the orders”. The discretion is bounded by the requirement to take into account “the interests of the persons who may be affected by the outcome of the proceeding”. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 53
Suggested Orders § Stay the collection of the arrears but not the ongoing liability: 1. That pursuant to section 111 C of the Child Support (Registration and Collection) Act 1988 the collection of child support arrears accumulated up to and including [today’s date] payable by [payer’s name] to [payee’s name] for [child’s name] be stayed pending final determination of the application filed by [applicant’s name] on [application date]. 2. That [payer’s name] continue to make payments of $[x] per [period] in accordance with the current child support assessment. The amount payable is to be varied in accordance with any later assessments made for any period after [today’s date]. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 54
Suggested Orders § Stay the collection of arrears but set the ongoing liability: 1. That pursuant to section 111 C of the Child Support (Registration and Collection) Act 1988 the collection of child support arrears accumulated up to and including [today’s date] payable by [payer’s name] to [payee’s name] for [child’s name] be stayed pending final determination of the application filed by [applicant’s name] on [application date]. 2. Pending final determination of the application, [payer’s name] shall make payments of child support in the amount of $[x] per [period]. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 55
Suggested Orders § No collection 1. That pursuant to section 111 C of the Child Support (Registration and Collection) Act 1988 the collection of child support payable (current liability and arrears) by [payer’s name] to [payee’s name] for [child’s name] be stayed pending final determination of the application made by [applicant’s name] on [application date]. § No disbursement 1. That pursuant to section 111 C of the Child Support (Registration and Collection) Act 1988 the disbursement of child support to [payee’s name] for [child’s name] be stayed pending final determination of the application made by [applicant’s name] on [application date]. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 56
How long does the stay order apply? § Subsection 111 C(5) provides for the terms and conditions of the order and its duration: An order under subsection (3): (a) is subject to such terms and conditions as are specified in the order; and (b) operates for: (i) such period as is specified in the order; or (ii) if no period is specified – until a decision of the court, the Registrar or the AAT determining the proceeding becomes final. § Generally expressed to operate until the underlying proceeding is final: • Section 144 of the Child Support (Assessment) Act 1989 • Section 110 W of the Collection Act MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 57
How long does the stay order apply? § While 111 C(5) provides that the order operates for such period as specified in the order, the power under s 111 C(3) cannot be exercised on a permanent basis. • Child Support Registrar & Higgins & Anor [2016] Fam. CAFC 2 at [50]- [52] - Orders under 111 C(3) are “pending the hearing and final determination of the proceeding”; - Section 111 C is not a source of power for a permanent stay • Reaffirmed in Dove & Tolmay and Anor [2017] Fam. CAFC 253 at [14] MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 58
Interaction with Departure Prohibition Orders § Part VA of the Collection Act • Section 72 D allows for the making of a DPO where the debtor: - Has a child support liability; - Has failed to make satisfactory arrangements to wholly discharge the child support liability - Has persistently and without reasonable excuse failed to pay; and - The Registrar considers it desirable to make the DPO to prevent the debtor from leaving the country. • Section 72 E defines child support liability for the purposes of Part VA. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 59
Interaction with Departure Prohibition Orders § Section 72 Q provides for an appeal against the making of a DPO to the Federal Circuit Court or Federal Court. • It is not an appeal on the merits § Common for a debtor to seek a stay order pending determination of the appeal. § Historically, s 111 C has been applied to stay the operation of a DPO. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 60
Interaction with Departure Prohibition Orders § Newell v Child Support Registrar [2015] FCCA 2815 • The definition of a court having jurisdiction under this Act excludes a court that only has jurisdiction in relation to the recovery of amounts of child support. • The jurisdiction of the Court was enlivened under section 72 Q, rather than the general provision under section 104. • A Notice of Appeal under section 72 Q is not a proceeding within the meaning of s 111 C(1)(a) ; • No power to stay the operation or implementation of a DPO. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 61
Is there an alternative source of power? § Duckett & Robinson [2015] FCCA 2275 at [32] In the face of what appears to have been an offence by the Mother in removing the child from Australia… public policy requires that the Court should stay the operation of a child support assessment that is funding or assisting to fund the mother’s continuing breach of the law and continuing refusal to comply with Orders of this Court. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 62
Is there an alternative source of power? § Child Support Registrar & Vladimir [2017] Fam. CAFC 56 at [53]-[54] Section 23 of the Federal Court of Australia Act 1976 (Cth) is a similarly worded section to s 15 [of the Federal Circuit Court of Australia Act 1999], and in the High Court decision of Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 619 Wilson and Dawson JJ said this about that section (and about the implied power): … it cannot be suggested that either the power to grant relief under s. 23 [of the Federal Court of Australia Act] or an implied power to prevent an abuse of process extends to the creation and enforcement of rights in addition to those for the protection or enforcement of which the jurisdiction of the Court is invoked. The power given by s. 23 is expressly limited to the making of orders in relation to matters in which the Court has jurisdiction and it does not extend the jurisdiction of the Federal Court. Nor could that Court’s implied power be employed to create and enforce new rights. Whilst the implied power carries with it all that is necessary for the proper functioning of that Court, it does not extend its jurisdiction beyond that which is vested in it. Clearly then, s 15 cannot provide the jurisdiction to make the stay order. And, as can be seen from what Wilson and Dawson JJ said in Jackson, neither can the implied power. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 63
Is there an alternative source of power? § Pitney & Pitney [2017] Fam. CA 272 • Application under reg 36 of the Family Law Regulations 1984 for an order discharging, suspending, reviving or varying an order, agreement or the liability. • Reg 38 and 38 A did not apply. • Question as to whether a stay order made be made against the Registrar? MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 64
Is there an alternative source of power? § Pitney & Pitney [2017] Fam. CA 272 at [41] I am satisfied that in the proceedings to discharge the spousal maintenance order of the City B Court this Court has power to suspend the operation of the City B Court’s still operative spousal maintenance order until further order and it may exercise this power on an interim basis pending determination of the substantive proceedings at trial. However, I do not consider this Court has the power through Regulation 36 to stay the collection activities of the Child Support Registrar in respect of any arrears of child support or spousal maintenance owing by the applicant pursuant to the American orders. MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 65
QUESTIONS Christopher Bishop Special Counsel, Mills Oakley Brisbane 07 3228 0400 - cbishop@millsoakley. com. au MELBOURNE | SYDNEY | BRISBANE | CANBERRA | PERTH 66
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