FAMILY LAW – APPEAL – CHILD SUPPORT – LEAVE TO APPEAL – Where the appellant mother seeks leave to appeal pursuant to s 102A of the Child Support (Assessment) Act 1989 (Cth) – Where the trial judge in finding that the respondent father satisfied s 117(7B)(b)(ii) of the Child Support (Assessment) Act 1981 (Cth) appeared to rely on annexures to his affidavit which she had ruled inadmissible – Where it is not clear what weight the trial judge gave to these annexures in making her finding and thus the finding must be considered unsafe and cannot stand – Where there is merit in one of the appellant mother’s grounds of appeal – Leave to appeal granted and the appeal allowed – Proceedings remitted to the Federal Circuit Court of Australia for rehearing by a judge other than the trial judge.
FAMILY LAW – APPEAL – COSTS – Where the appellant mother should have costs certificates pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in respect of the costs incurred by her in relation to the appeal and for the rehearing – Where the respondent father should have a costs certificate pursuant to the Federal Proceedings (Costs) Act 1981 (Cth) in relation to the rehearing.
Forbes & Bream[2010] FamCAFC 6 Gilmour and Gilmour (1995) FLC 92-591 Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltdand Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Rice and Asplund (1979) FLC 90-725 Rutherford and Rutherford (1991) FLC 92-255 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447
The child support proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Small.
Each party bear their own costs.
The Court grants to the appellant mother a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act1981 (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 mother…
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
Bell & Nahos [2016] FamCAFC 244
Case
[2016] FamCAFC 244
Decision Date
CaseChat Overview and Summary
In this case, the appellant, Bell, sought leave to appeal a decision made by the Federal Circuit Court of Australia concerning a child support matter. The respondent, Nahos, was the subject of an assessment under the Child Support (Assessment) Act 1989 (Cth). The central issue in the appeal was whether the trial judge properly considered evidence that Bell had ruled inadmissible when making her decision. The trial judge's reliance on this inadmissible evidence, which was not properly weighed, led to an unsafe and uncertain outcome.
The court identified that the trial judge had potentially erred by considering inadmissible annexures to the respondent's affidavit when making her finding under s 117(7B)(b)(ii) of the Child Support (Assessment) Act 1981 (Cth). Because it was unclear how much weight the trial judge gave to these annexures, the court found that the decision was unsafe and could not stand. The court further found that there was merit in one of the grounds of appeal raised by the appellant, thus granting leave to appeal. The appeal was allowed, and the original orders were set aside. The proceedings were remitted to the Federal Circuit Court of Australia for rehearing by a different judge.
The court ordered that leave to appeal be granted, the appeal allowed, and the original orders set aside. The child support proceedings were remitted for rehearing by a different judge, and each party was to bear their own costs. Additionally, the court granted costs certificates to both parties for the costs incurred in relation to the appeal and the rehearing, pursuant to the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
Leave to appeal be granted.
2.
The appeal be allowed.
3.
The orders made on 21 August 2015 be set aside.
4.
The child support proceedings be remitted to the Federal Circuit Court of Australia for rehearing by a judge other than Judge Small.
5.
Each party bear their own costs.
6.
The Court grants to the appellant mother 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 mother in respect of the costs incurred by her in relation to the appeal.
7.
The Court grants to the appellant mother and the respondent father costs certificates pursuant to s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being certificates 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 mother and the respondent father in respect of the costs incurred by each of them in relation to the rehearing.
Note: The form of the order is subject to the entry of the order in the Court’s records.