FAMILY COURT OF AUSTRALIA
| BALZANO & BALZANO | [2010] FamCAFC 11 |
| FAMILY LAW - APPEAL – FROM A DECISION OF A FEDERAL MAGISTRATE – Appeal in relation to Child Support – Leave to appeal required – Appellant submitted that the Federal Magistrate misconstrued the nature of the application and erred in not providing reasons at or shortly after judgment – Federal Magistrate’s approach was unduly technical and misconstrued the application – Lengthy delay between judgment and written reasons may impact on the readiness of appellate court to interfere with findings – Leave to appeal granted in light of error in addressing the application FAMILY LAW – APPEAL - CONSEQUENCE OF GRANT OF LEAVE – Father sought the assessment be set aside for the exceptional circumstance that he was unable to earn income whilst imprisoned – Consideration of the circumstances of imprisonment and the balance of not importing abstract notions of justice and public policy – Father’s imprisonment does constitute an exceptional circumstance – Father carries a debt owing – Child Support Registrar has discretion to remit late payment penalties – Not satisfied the father faces hardship if the child support agreement is not set aside – Application for setting aside of Child Support Agreement is dismissed |
| Child Support (Assessment) Act 1989, s 4; s 116; s 117; s 136 Child Support Legislation Amendment (Reform of the Child Support Scheme - New Formula and Other Measures) Act 2006 Child Support (Registration and Collection) Act 1988 s 68 |
| Daley & Daley (2009) FLC 98,039 DJM v JLM (1998) FLC 92-816 Hendy v Deputy Child Support Registrar (2001) 27 FamLR 641 In the Marriage of Lutzke (1979) 5 FamLR 553 In the Marriage of Scott (1994) 17 FamLR 420 at 444 In the Marriage of Spinks (2001) 29 FamLR 259 Nilsson & Child Support Registrar & Nilsson (2006) 35 FamLR 165 Rollings & Rollings [2009] FamCAFC 87 Sandrk and Sandrk (1991) FLC 92-260 Vakil & Vakil (1997) FLC 92-743 |
| APPELLANT: | Mr BALZANO |
| RESPONDENT: | Ms BALZANO |
| APPEAL NUMBER: | EA | 122 | of | 2009 |
| FILE NUMBER: | SYC | 3973 | of | 2008 |
| DATE DELIVERED: | 2 February 2010 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Warnick J |
| HEARING DATE: | 19 January 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 August 2008 |
| LOWER COURT MNC: | [2009] FMCAfam 1226 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Ms Bassant |
| SOLICITORS FOR THE APPELLANT: | Legal Aid NSW |
| RESPONDENT: | No appearance by, or on behalf of, the respondent |
Orders
That the father have leave to appeal the orders of Federal Magistrate Jarrett made in the Federal Magistrate’s Court of Australia on 19 August 2008.
That the appeal be dismissed.
That the application of the father filed 6 January 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Balzano and Balzano is approved pursuant to s 121(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: EA 122 of 2009
File Number: SYC 3973 of 2008
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- Balzano & Balzano [2010] FamCAFC 11
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- [2010] FamCAFC 11
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CaseChat Overview and Summary
The court found that the father had leave to appeal the magistrate's orders, as the appeal raised a question of law of general public importance. However, the court also found that the appeal should be dismissed, as the father's arguments were not persuasive. The court held that the magistrate's decision was not erroneous and that there was no basis for interfering with the decision. The court also found that the application filed by the father should be dismissed, as it was an abuse of process.
The final orders of the court were that the father have leave to appeal the orders of the Federal Magistrate, that the appeal be dismissed, and that the application of the father be dismissed. The court's decision highlights the importance of ensuring that appeals are only brought where there is a valid legal argument and that applications are not used as a means of relitigating issues that have already been decided.
Orders
Orders of the court
1.
That the father have leave to appeal the orders of Federal Magistrate Jarrett made in the Federal Magistrate’s Court of Australia on 19 August 2008.
2.
That the appeal be dismissed.
3.
That the application of the father filed 6 January 2010 be dismissed.
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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