Balzano & Balzano - [2010] FamCAFC 11

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:

122

2009

FILE NUMBER:

SYC

3973

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

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 Balzano & Balzano

Details

AGLC: Balzano & Balzano [2010] FamCAFC 11
Case: [2010] FamCAFC 11
Decision Date: 2 February 2010

CaseChat Overview and Summary

Balzano & Balzano was a family law case involving a dispute over the custody of a child. The father sought leave to appeal a decision made by Federal Magistrate Jarrett in the Federal Magistrates Court of Australia on 19 August 2008, and also filed an application on 6 January 2010. The legal issues before the court were whether the father had leave to appeal the magistrate's orders and whether the application filed by the father should be dismissed.

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

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.

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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