Benson and Benson - [2014] FCCA 1193

FEDERAL CIRCUIT COURT OF AUSTRALIA

BENSON & BENSON

[2014] FCCA 1193

Catchwords:
FAMILY LAW – Property proceedings finalised by consent order in July 2012 – applicant seeks to revisit orders due to alleged miscarriage of justice – matters to be considered – applicant seeks order as to spousal maintenance – is it proper to make such an order – application for departure from administrative assessment of child support – matters to be considered – no miscarriage of justice found – applications dismissed.

Legislation:

Family Law Act 1975, ss.72; 74; 75; 77; 79; 81; 83

Child Support (Registration and Collection) Act 1988, ss.80; 88; 110B

Child Support (Assessment) Act 1989, ss.4(2), 25, 98C, 98E, 98R, 116, 117

Benson & Benson [2012] FMCAfam 335
Lancer & Lancer [2008] FamCAFC 112
Gebert & Gebert (1990) FLC 92-137
Suiker & Suiker (1993) FLC 92-436
Marriage of Gyselman (1992) 15 FamLR 219
Savery & Savery (1990) FLC 92-131
Provis & Wharton [2013] FCCA 1854
Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143
Bevan & Bevan [2013] FamCAFC 116

Bevan & Bevan (1995) FLC 92-600

Applicant:

MS BENSON

Respondent:

MR BENSON

File Number:

MLC 5232 of 2011

Judgment of:

Judge Brown

Hearing date:

17 March 2014

Date of Last Submission:

17 March 2014

Delivered at:

Adelaide

Delivered on:

25 June 2014

REPRESENTATION

The Applicant:

In person

The Respondent:

In person

ORDERS

All extant applications in respect of property orders, spousal maintenance and child support, other than the Notice of Appeal (Child Support) filed 19 March 2014 are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

MLC 5232 of 2011

MS BENSON

Applicant

And

MR BENSON

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to these proceedings are Ms Benson “the wife” and Mr Benson “the husband”. The overall proceedings relate to the settlement of matrimonial property and tangentially to the question of financial support for the parties’ child X, born (omitted) 2007 and the wife herself.
More recently again, the husband has initiated proceedings in which he seeks to be able to spend defined periods of time with X and to communicate with him regularly by telephone.
In this context and because it is evident that X has not interacted with his father for a significant period of time, it has been ordered that X be independently represented.
Proceedings, in various forms, have been on foot between the parties since 16 June 2011. An analysis of these proceedings demonstrates that the parties have an acerbic and difficult relationship with one another.
In particular, the wife mistrusts the husband; whilst the husband believes the wife is both unreasonable and irrational in her behaviour, specifically in her view that he has concealed assets from her and deceived her about his financial affairs.
The parties are now both financially exhausted and, as a consequence of this, each has been compelled…

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 Benson and Benson

Details

AGLC: Benson and Benson [2014] FCCA 1193
Case: [2014] FCCA 1193
Decision Date: 25 June 2014

CaseChat Overview and Summary

In the matter of Benson and Benson, heard before Judge Brown, the parties brought various applications concerning property division, spousal maintenance, and child support. The court was required to determine the disposition of these applications.

The central legal issues before the court were the resolution of property orders, claims for spousal maintenance, and child support arrangements. The court also had to consider the validity and scope of a Notice of Appeal filed by one party concerning child support.

Judge Brown dismissed all extant applications relating to property orders, spousal maintenance, and child support. The sole exception was the Notice of Appeal (Child Support) filed on 19 March 2014, which was not dismissed. The court's reasoning for these dismissals is not detailed in the provided text, but the outcome clearly indicates a finalisation of these matters, save for the specified appeal.

Orders

Orders of the court

All extant applications in respect of property orders, spousal maintenance and child support, other than the Notice of Appeal (Child Support) filed 19 March 2014 are 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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