B and M - [2004] FMCAfam 161

FEDERAL MAGISTRATES COURT OF AUSTRALIA

B & M

[2004] FMCAfam 161

CHILD SUPPORT – Application for an order seeking the exempted income of the applicant payer of child support to be varied pursuant to section 39 of the Child Support (Assessment) Act 1989 – where father asserted that the property settlement between the parties was, on face value, unjust and inequitable and that the order could have been understood as forming part of child support – issue of the merits of the father’s application on the grounds that the application had not been filed in accordance with Order 31B, Rule 12 of the Family Law Rules 1984 which were the relevant Rules in effect at the time of filing the application and that the application was misconceived on the grounds that the property settlement was effective on face value and makes no reference to child support – consideration of sections 75(2)(na) and 79(4)(g) of the Family Law Act 1975 – whether application was brought under Division 4 or 5 of the Child Support (Assessment) Act – lack of Financial Statement.

Child Support (Assessment) Act 1989 (Cth), ss.39, 98X, 117, 117(1), 117(2)(c) 117(2)(c)(ii), 122, 123, 124
Family Law Act 1975 (Cth), ss.66R, 75(2), 75(2)(na), 79A, 79(4)(g)
Family Law Rules 1984, Order 31B, Rule 12
Federal Magistrates Court Rules 2001, Rule 21.15

Gyselman & Gyselman (1992) FLC 92-279

Applicant:

D W B

Respondent:

W S M

File No:

MLM 345 of 2004

Delivered on:

8 April 2004

Delivered at:

Melbourne

Hearing Date:

8 April 2004

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

In person

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr G Atkinson

Solicitors for the Respondent:

Macgregor

ORDERS

That the application for departure filed 19 January 2004 be adjourned to 23 July 2004 at 10 am for hearing with an estimated hearing time of one day.
That on or before 20 May 2004 the applicant father file and serve upon the respondent an affidavit setting out the facts relied on in support of the application attaching:
(a)a schedule setting out:
(i)the section of the Child Support (Assessment) Act 1989 (Cth) under which the applicant is made;
(ii)the grounds of the application;
(iii)the issues to be determined in the case.
(b)a copy of any decision, notice of decision or assessment made by the child support registrar relevant to the application;
(c)a copy of any document lodged by a party with the child support registrar or received by a party from Child Support Registrar relevant to the decision or assessment;
(d)if not otherwise filed, a copy of an objection, if any, under s.98X of the Child Support (Assessment) Act;
(e)a financial statement.
The respondent file any material upon which she wishes to rely on or before 18 June 2004.
That the respondent's costs be fixed in the sum of $1027 and the question of payment of those costs be reserved to the hearing.
It is certified that this was a matter pursuant to Rule 21.15 of…

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

Case: [2004] FMCAfam 161
Decision Date: 8 April 2004

CaseChat Overview and Summary

The case B and M involved a dispute concerning the assessment of child support payments under the Child Support (Assessment) Act 1989 (Cth). The applicant, the father, sought to challenge the child support assessment and subsequently filed an application for departure. The respondent, the mother, opposed the application. The matter was heard in the Federal Magistrates Court, presided over by the Federal Magistrate.

The legal issues that the court had to resolve included the validity of the child support assessment and the procedural requirements that the applicant needed to meet to effectively challenge the assessment. The court was required to determine whether the father's application for departure was appropriately filed and whether the procedural prerequisites, as outlined in the relevant legislation and case law, were satisfied.

The court considered the procedural requirements for filing an application for departure and the need for the applicant to provide a detailed affidavit setting out the facts and issues. The court also examined the timeliness of the father's application and the need for the parties to exchange relevant documents and financial statements. The court noted that the application was not fully compliant with the procedural requirements and that the father needed to provide a more detailed affidavit. The court fixed the respondent's costs and reserved the question of payment of those costs for the hearing of the application. The application for departure was adjourned to a later date for further hearing.

The court issued orders to ensure that the procedural requirements were met before the application could be heard. The orders included a requirement for the applicant to file a detailed affidavit, provide a financial statement, and attach relevant documents. The respondent was also required to file any material upon which she wished to rely. The court set a specific date for the hearing of the application and fixed the respondent's costs, reserving the question of payment for the hearing.

Orders

Orders of the court

That the application for departure filed 19 January 2004 be adjourned to 23 July 2004 at 10 am for hearing with an estimated hearing time of one day.

That on or before 20 May 2004 the applicant father file and serve upon the respondent an affidavit setting out the facts relied on in support of the application attaching:

(a) a schedule setting out:

(i) the section of the Child Support (Assessment) Act 1989 (Cth) under which the applicant is made;

(ii) the grounds of the application;

(iii) the issues to be determined in the case.

(b) a copy of any decision, notice of decision or assessment made by the child support registrar relevant to the application;

(c) a copy of any document lodged by a party with the child support registrar or received by a party from Child Support Registrar relevant to the decision or assessment;

(d) if not otherwise filed, a copy of an objection, if any, under s.98X of the Child Support (Assessment) Act;

(e) a financial statement.

The respondent file any material upon which she wishes to rely on or before 18 June 2004.

That the respondent's costs be fixed in the sum of $1027 and the question of payment of those costs be reserved to the hearing.

It is certified that this was a matter pursuant to Rule 21.15 of the

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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