Abrahams and Simm - [2014] FCCA 67

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABRAHAMS & SIMM

[2014] FCCA 67

Catchwords:
FAMILY LAW – Application for childbirth maintenance.

Legislation:

Family Law Act 1975, ss.4(1), 67B(1)(a) & (b), 67G

BM & DA [2007] FMCAfam 770
Hampton & Temple [2012] FamCA 681
Harper v Pint [2011] FamCA 771
MJ & JDB & Anor [2006] FamCA 419

Applicant:

MS ABRAHAMS

Respondent:

MR SIMM

File Number:

CAC 764 of 2013

Judgment of:

Judge Neville

Hearing date:

12 September 2013

Date of Last Submission:

12 September 2013

Delivered at:

Canberra

Delivered on:

31 January 2014

REPRESENTATION

Solicitor/Advocate for the Applicant:

Mrs C Naidu

Solicitors for the Applicant:

Claire Naidu & Co, Canberra

Solicitor/Advocate for the Respondent:

Mr D Bainbridge

Solicitors for the Respondent:

Bainbridge Legal, Blacktown, NSW

ORDERS

The Respondent is to pay to the Applicant $7,000.00 within 30 days of the date of these orders;
The Respondent is to pay to the Applicant a further $7,000.00 within 60 days of the date of these orders;
Each party shall pay their own costs.

IT IS NOTED that publication of this judgment under the pseudonym Abrahams & Simm is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 764 of 2013

MS ABRAHAMS

Applicant

And

MR SIMM

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for “childbirth maintenance”, pursuant to s.67B of the Family Law Act1975 (“the Act”). It is brought by the Mother in relation to the child of the parties, X, who was born on (omitted) 2012.
It was agreed that it would be dealt with by way of affidavit evidence, and written and oral submissions. This is also to say that, given the very narrow nature of the application, there was no cross-examination of either of the parties.
The Respondent Father does not [now] dispute the paternity of his daughter. Nor is there dispute that the application, which was filed on 30^th May 2013, was brought within the 12 month period prescribed by s.67G of the Act. It is also not disputed that the parties are not, and have never been, married.
The Applicant Mother seeks, in total, the sum of $27,061. That figure is comprised of $15,610, which is claimed under s.67B(a) for the maintenance of the Mother for the childbirth maintenance period; and $11,451, which is claimed under s.67B(b), which sum relates to “the Mother’s reasonable medical expenses in relation to the pregnancy and birth.” Having regard to payments made by the Father that total $2200 (as claimed by the Mother), the Mother seeks payment from him of $23,474.
The Respondent Father seeks orders that he pay the Mother the sum of $7000.00 by way of “maintenance and expenses” pursuant to s.67B, and that she pay his costs of the application.
For the reasons that follow, the Father shall pay to the Mother the sum of $14,000 (the assessment and division of which is set out later in these reasons) pursuant to s.67B of the Act.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Abrahams and Simm

Details

AGLC: Abrahams and Simm [2014] FCCA 67
Case: [2014] FCCA 67
Decision Date: 31 January 2014

CaseChat Overview and Summary

In the matter of *Abrahams and Simm*, heard before Judge Neville, the dispute concerned a claim by the Applicant against the Respondent. While the precise nature of the dispute is not detailed, the court's orders indicate a financial claim was made and adjudicated.

The central legal issue before the court was the determination of the quantum of damages or debt owed by the Respondent to the Applicant. The court was required to assess the evidence presented to establish the extent of the Applicant's entitlement to financial compensation from the Respondent.

Judge Neville ordered that the Respondent pay the Applicant a total of $14,000.00, to be paid in two instalments of $7,000.00, with the first due within 30 days and the second within 60 days of the date of the orders. Furthermore, the court directed that each party bear their own legal costs.

Orders

Orders of the court

The Respondent is to pay to the Applicant $7,000.00 within 30 days of the date of these orders;

The Respondent is to pay to the Applicant a further $7,000.00 within 60 days of the date of these orders;

Each party shall pay their own costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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