Ardell & Thorn

Case [2023] FedCFamC1A 78

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Ardell & Thorn [2023] FedCFamC1A 78

Appeal from: Ardell & Thorn [2022] FedCFamC2F 1614
Appeal number: NAA 68 of 2023
File number: MLC 5464 of 2022
Judgment of: AUSTIN J
Date of judgment: 22 May 2023
Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Review of decision – Where the applicant seeks review of the dismissal of the Application in an Appeal seeking leave to appeal out of time – Where none of the proposed grounds of appeal ostensibly have any merit and have no reasonable prospects of success – Application in an Appeal dismissed – Where the respondent did not seek costs – No order as to costs.
Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 111, 112

Evidence Act 1995 (Cth) s 58

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 132

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.03, 13.40

Cases cited:

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27

Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 32
Date of hearing: 22 May 2023
Place: Newcastle (via Microsoft Teams)
The Applicant: Litigant in person
Solicitor for the Respondent: Longton Legal

ORDERS

NAA 68 of 2023
MLC 5464 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MS ARDELL

Applicant
AND:

MR THORN

Respondent

order made by:

AUSTIN J

DATE OF ORDER:

22 May 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 11 May 2023 is dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under a pseudonym Ardell & Thorn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. Before the Court for determination is an application for leave to review, out of time, a decision made by the appeal registrar on 14 April 2023, refusing the applicant’s earlier application for leave to bring an appeal out of time.

  2. The application should be dismissed because, upon review by way of original hearing, the same orders as were made by the…

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Details
AGLC
Ardell & Thorn [2023] FedCFamC1A 78
Case
[2023] FedCFamC1A 78
Decision Date

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an application from the applicant against the respondent seeking leave to apply out of time to vary a child support assessment. The application was dismissed by the primary judge. The applicant sought to appeal against the primary judge’s decision. The respondent opposed the appeal. The appeal was dismissed because the Court was satisfied the same orders would have been made on an original hearing.

The primary issue for the Court was whether the applicant had demonstrated she had a prima facie case to vary the child support assessment. The applicant contended she had a case to vary the assessment because the respondent had exaggerated his medical condition and minimised his income. The respondent contended that the evidence did not substantiate that contention. The Court was satisfied the evidence did not substantiate the contention and dismissed the appeal.

The Court was satisfied that the evidence did not substantiate the contention that the respondent had exaggerated his medical condition. The Court found the evidence was not capable of demonstrating that the respondent had exaggerated his medical condition. The Court also found that the evidence did not establish the applicant would experience hardship if denied leave to apply out of time, at least when compared with the potential hardship claimed by the respondent. The Court found that the applicant had not provided a good explanation for the delay extending back to the beginning of the period in 2014.

The Court dismissed the appeal and ordered the applicant to pay the respondent’s costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The application should be dismissed because, upon review by way of original hearing, the same orders as were made by the appeal registrar would ensue.Background The applicant and respondent are the parents of an adult daughter, born in 2004 and now 19 years of age, who has apparently been estranged from the respondent for the last 10 years. The respondent was formerly bound by a child support assessment in respect of the daughter under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). It is apparently uncontroversial that the respondent met his obligations under the assessment and there are no arrears. The liability to pay child support ceased in 2022 when the daughter attained her majority. In late 2021, about six months before the daughter attained her majority, the applicant applied to the Child Support Registrar (“the CSR”) to retrospectively vary the assessment on grounds that the respondent had an increased financial capacity to pay more child support. Her variation application was dismissed by the CSR in April 2022. Relevantly, the CSR found:I do not find [the respondent’s] current financial resources, income and property is significantly different [from when the assessment was last made] and I am not satisfied the child support assessment is unfair….As a result, no changes will be made to the assessment. The applicant promptly objected to the decision in April 2022, but shortly afterwards voluntarily withdrew the objection. Then, in May 2022, several weeks after withdrawing the objection, the applicant filed in the Federal Circuit and Family Court of Australia (Division 2) an application seeking leave to apply to vary the child support assessment for the period of seven years between November 2014 and November 2021. Leave is required to prosecute an application to vary a child support assessment covering any period more than 18 months (but less than seven years) before the variation application is made (ss 111(1) and 112 of the Assessment Act). The application for such leave was heard and dismissed by the primary judge on 10 November 2022. Essentially, her Honour dismissed the application because the evidence adduced by the applicant lacked probative value and was incapable of demonstrating she had a prima facie case to prosecute (at [20] and [28]). The respondent claims to suffer from an injury and so receives welfare payments. The applicant had contended he “exaggerated his medical condition and faked [his] eligibility to [financial] benefits” for the purpose of minimising his income and, hence, minimising the child support assessment (at [21]–[22]), but the primary judge found the evidence, taken at its highest, was not capable of substantiating that contention (at [23]). Nor did the evidence establish the applicant would experience hardship if denied leave to apply out of time, at least when compared with the potential hardship claimed by the respondent (at [31]–[32]). While the primary judge was satisfied the applicant was not long out of time in relation to the tail end of the period during which she sought to vary the child support assessment, there was no good explanation for the delay extending back to the beginning of that period in 2014 (at [33]).

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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