Balakin and Dobrow and Anor - [2020] FCCA 57

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALAKIN & DOBROW & ANOR

[2020] FCCA 57

Catchwords:
CHILD SUPPORT – Application pursuant to s.112 of the Child Support (Assessment) Act for leave to apply for orders pursuant to s.118 of the Act – child support assessment periods more than 18 months old – application for leave to apply granted.

Legislation:

Child Support (Assessment) Act 1989 (Cth) ss.111, 112, 117 & 118

Cases cited:

Cawthorn & Cawthorn (1998) 144 FLR 255

Hacherl & Berrios [2010] FMCAfam 688

Bagala & Bagala [2009] FMCAfam 953

Applicant:

MR BALAKIN

First Respondent:

MS DOBROW

Intervener:

CHILD SUPPORT REGISTRAR

File Number:

ADC 1304 of 2007

Judgment of:

Judge Cole

Hearing date:

5 November 2019

Date of Last Submission:

5 November 2019

Delivered at:

Adelaide

Delivered on:

21 January 2020

REPRESENTATION

Counsel for the Applicant:

Ms Cocks

Solicitors for the Applicant:

White Berman

Counsel for the First Respondent:

Ms Smith

Solicitors for the First Respondent:

Legal Services Commission (SA)

Counsel for the Intervener:

Mr Bishop

Solicitors for the Intervener:

Mills Oakley

ORDERS

That pursuant to s.112 of the Child Support Assessment Act 1989 (Cth) leave is granted to the applicant to apply for a departure order for the period 1 July 2013 to 11 January 2018.
That the applicant and first respondent provide informal disclosure within twenty-one (21) days NOTING the first respondent has requested a number of specific documents.
That the proceedings are adjourned to 18 February 2020 at 9:30am for directions.
That the applicant’s departure application be listed for hearing on 2 April 2020 at 2:15pm, NOTING that the enforcement application remains adjourned pending the outcome of the departure application.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADC 1304 of 2007

MR BALAKIN

Applicant

And

MS DOBROW

First Respondent

And

CHILD SUPPORT REGISTRAR

Intervener

REASONS FOR JUDGMENT

Introduction

The applicant seeks a departure order in respect of various child support assessments concerning the children Ms B born in 2000 and Mr C born in 2001 for the periods between 2013 and 2018.
The applicant brings this application before the Court following the institution of enforcement proceedings by the Child Support Registrar (‘the Registrar’) on 27 September 2018 in respect of his outstanding child support debt and ensuing costs.[1]
[1] Intervener’s Affidavit filed on 4 September 2019 at [8].
In reply to the applicant’s subsequent departure application, the Registrar filed a notice of intervention and response contending, on the basis of its original assessments, that the applicant has an outstanding debt of $18,384.18 comprising arrears and penalties.[2]
[2] Intervener’s Affidavit filed 4 September 2019 at [8].
In her response, along with the Registrar, the respondent seeks orders that the father’s initiating application filed on 12 July 2019 be dismissed and that the debt as calculated by the Registrar be enforced against the applicant.
Orders were made listing the matter for argument…

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 Balakin and Dobrow and Anor

Details

AGLC: Balakin and Dobrow and Anor [2020] FCCA 57
Case: [2020] FCCA 57
Decision Date: 21 January 2020

CaseChat Overview and Summary

In the matter of *Balakin and Dobrow and Anor*, heard by Judge Cole, the applicant sought leave under section 112 of the *Child Support (Assessment) Act 1989* (Cth) to apply for departure orders concerning child support assessments that had concluded more than 18 months prior. The dispute centred on the applicant's ability to seek a review of past child support assessments.

The primary legal issue before the court was whether the applicant should be granted leave to apply for departure orders for the period of 1 July 2013 to 11 January 2018, notwithstanding the time elapsed since these assessment periods concluded. This required the court to consider the criteria for granting such leave under section 112 of the Act.

Judge Cole granted the applicant leave to apply for a departure order for the specified period. The court reasoned that the circumstances warranted the granting of leave, enabling the applicant to pursue their application for a departure order. In addition to granting leave, the court ordered informal disclosure between the applicant and the first respondent, noting specific document requests from the first respondent. The proceedings were adjourned for further directions, with the departure application listed for hearing and the enforcement application remaining adjourned pending the outcome of the departure application.

Orders

Orders of the court

That pursuant to s.112 of the Child Support Assessment Act 1989 (Cth) leave is granted to the applicant to apply for a departure order for the period 1 July 2013 to 11 January 2018.

That the applicant and first respondent provide informal disclosure within twenty-one (21) days NOTING the first respondent has requested a number of specific documents.

That the proceedings are adjourned to 18 February 2020 at 9:30am for directions.

That the applicant’s departure application be listed for hearing on 2 April 2020 at 2:15pm, NOTING that the enforcement application remains adjourned pending the outcome of the departure application.

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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