Child support – Section 106A application heard despite mother not living in reciprocating jurisdiction

In Secretary, Commonwealth Attorney General’s Department & Bashir [2021] FamCAFC 137 (30 July 2021), the Full Court (Strickland, Aldridge & Tree JJ) allowed an appeal from Judge Boyle’s dismissal of an application by the Attorney General’s Department, for a declaration of parentage pursuant to s106A of the Child Support (Assessment) Act 1989 (Cth) (CSA Act) brought on behalf of a US-based mother.

The Full Court said (from [16]):

“Pursuant to s99(1) of the CSA Act, ‘[j]urisdiction is conferred on the … Federal Circuit Court of Australia [FCCA] … in relation to matters arising under this Act’. (…)

[17] … [T]he … relief sought under s106A was a matter under the CSA Act, and thus the … judge did have jurisdiction (…)

[22] … [W]hether the FCCA has power to make a declaration under s106A(5) of the CSA Act turns on whether four requirements are met.

[23] … [Section] 106A(1) must be engaged; namely … the Registrar refused to accept an application for administrative assessment … under s30(2) …

[24] … [T]he application must be for a declaration that a person be assessed in respect of the costs of the child … (s106A(2)(a))…

[25] … [T]he application must be made within ‘the time prescribed … ’ (s106A(3))…

[26] … [E]ither that the person should be assessed in respect of the costs of the child because the person is a parent of the child (s106A(5)(a)), or … the Registrar should reconsider the application … because the person who was to be assessed … is a parent of the child (s106A(5)(b)). (…)

[32] … [T]he appellant contended … that the … judge misconstrued s106A in finding that in … the requirements in s25(d) had to be met; namely, that the [mother] be a resident of a reciprocating jurisdiction.

[34] … [H]er Honour did wrongly determine that, before an order under s106A could be made, the appellant had to establish that the requirements of s25(d) were met…”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are Accredited Specialists in family law (Queensland and Victoria, respectively). The Family Law Book is a one-volume loose-leaf and online family law service (thefamilylawbook.com.au).

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