Aspen & Selby - [2007] FamCA 872

FAMILY COURT OF AUSTRALIA

ASPEN & SELBY

[2007] FamCA 872

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL - Whether leave to appeal should be granted - Whether Federal Magistrate had committed error of principle.

FAMILY LAW - DEPARTURE APPLICATION - Whether appropriate to depart from administrative assessment on basis that special circumstances established under s 117(2)(a)(iii) and or s 117(2)(c)(ia) and s 117(2)(c)(ib) of the Child Support (Assessment) Act 1989 (Cth) - Whether Federal Magistrate failed to give adequate reasons for rejecting departure grounds - Whether Federal Magistrate in error in factual findings- Whether error vitiated discretion - Whether Federal Magistrate failed to consider special circumstances - Whether Federal Magistrate in error in determining level of child support not unjust and inequitable having regard to each party's income, property and financial resources – Error of law established - Appeal allowed.

FAMILY LAW - APPLICATION FOR LEAVE TO CROSS APPEAL COSTS ORDER - Whether Federal Magistrate committed error of principle in determining costs application– Whether wife denied natural justice - Whether Federal Magistrate incorrectly took wife's conduct into account when determining costs - Leave to cross-appeal granted.

FAMILY LAW - COSTS OF APPLICATION - Each party to receive certificates under Federal Proceedings (Costs) Act1981 (Cth) for appeal and re-hearing.

Child Support (Assessment) Act 1989 (Cth) ss 4, 102A(1), 102A(2), 102A(5), 117(1), 117(2), 117(4), 117(5), 117(7A), 117(7B)
Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth)
Family Law Act 1975 (Cth) s 79
Superannuation Industry (Supervision) Act 1993 (Cth), s 65
Superannuation Industry (Supervision) Regulations 1994, reg 13.13
Federal Proceedings (Costs) Act 1981 (Cth), ss 6, 8 and 9

Gyselman and Gyselman (1992) FLC 92-279
Bennett v Bennett (1991) FLC 92-191
Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Hides v Hatton (1997) FLC 92-759; 21 Fam LR 855
In the Marriage ofS.A. and L.A. Johnson (1998-1999) 24 Fam LR 130
De Winter v De Winter (1979) 23 ALR 211; (1979) FLC 90-605; (1979) 4 FamLR 583
Savery and Savery (1990) FLC 92-131
Ross v McDermott (1998) FLC 93-003, (1998) 23 Fam LR 613
Hendy & Deputy Child Support Registrar & Webb (2001) 27 Fam LR 641

C & D [2004] FamCA 1171

APPELLANT:

Aspen

CROSS APPELLANT:

Selby

RESPONDENT:

Selby

CROSS RESPONDENT:

Aspen

FILE NUMBER:

SYM

2718

2005

APPEAL NUMBER:

2007

DATE DELIVERED:

22 August 2007

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Boland J

HEARING DATE:

18 July 2007

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 February 2007

LOWER COURT MNC:

[2007] FMCAfam 144

REPRESENTATION

COUNSEL FOR THE APPELLANT/CROSS RESPONDENT:

Mr Millar

SOLICITOR FOR THE APPELLANT/CROSS RESPONDENT:

L J Rickard, Solicitor

COUNSEL FOR THE RESPONDENT/CROSS APPELLANT:

Ms Bridger

SOLICITOR FOR THE RESPONDENT/ CROSS APPELLANT:

Jo-Anna F S Moy, Solicitor

Orders

The husband’s application for leave to appeal is granted.
The husband’s appeal is allowed.
The wife’s application for leave to cross-appeal is granted.
The wife’s cross-appeal is allowed.
The husband’s application for…

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.

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Details

AGLC: Aspen & Selby [2007] FamCA 872
Case: [2007] FamCA 872
Decision Date: 22 August 2007

CaseChat Overview and Summary

This matter concerned an appeal and a cross-appeal before Boland J. The husband sought leave to appeal a decision of a Federal Magistrate concerning an application to depart from an administrative assessment of child support. The wife sought leave to cross-appeal a costs order made by the same Federal Magistrate.

The primary legal issues before the court were whether the Federal Magistrate had erred in principle by failing to give adequate reasons for rejecting the grounds for departure from the child support assessment, whether the Magistrate had made errors in factual findings that vitiated the exercise of discretion, and whether the Magistrate had failed to consider the special circumstances of the case when determining that the level of child support was not unjust or inequitable. In relation to the cross-appeal, the issues were whether the Federal Magistrate had erred in principle in determining the costs application, whether the wife had been denied natural justice, and whether the Magistrate had incorrectly taken the wife's conduct into account when making the costs order.

Boland J found that an error of law had been established in relation to the child support assessment. Consequently, the husband's appeal was allowed. The court also granted the wife leave to cross-appeal and allowed her cross-appeal, finding that the Federal Magistrate had committed an error of principle in the costs determination, potentially denying the wife natural justice and incorrectly considering her conduct.

The court ordered that the husband's application for departure and the wife's response be listed for re-hearing before a different Federal Magistrate. Both parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the appeal, the cross-appeal, and the new trial.

Orders

Orders of the court

The husband’s application for leave to appeal is granted.

The husband’s appeal is allowed.

The wife’s application for leave to cross-appeal is granted.

The wife’s cross-appeal is allowed.

The husband’s application for departure filed 2 December 2005 and the wife’s response filed 1 February 2006 be listed for re-hearing as soon as possible before a Federal Magistrate other than Federal Magistrate Housego.

The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.

The Court grants to the respondent wife a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the cross-appeal.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

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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