Birch and Millett - [2017] FCCA 2557

FEDERAL CIRCUIT COURT OF AUSTRALIA

BIRCH & MILLETT

[2017] FCCA 2557

Catchwords:
FAMILY LAW – Interim maintenance – non-compliance with directions for filing.

Legislation:

Family Law Act 1975

Applicant:

MR BIRCH

Respondent:

MS MILLETT

File Number:

MLC 1262 of 2017

Judgment of:

Judge Harland

Hearing date:

12 October 2017

Date of Last Submission:

12 October 2017

Delivered at:

Melbourne

Delivered on:

12 October 2017

REPRESENTATION

Counsel for the Applicant:

Mr Mellas

Solicitors for the Applicant:

Berry Family Law

Counsel for the Respondent:

Ms Carter

Solicitors for the Respondent:

Armstrong Legal

ORDERS

Until further order, the applicant father pay to the respondent mother maintenance at the rate of $500 per week.
Order 5 of the orders made on 11 August 2017 be amended insofar as the date for filing of the affidavit of evidence in chief and any affidavit of any witness which the party seeks to rely on at trial be extended until 31 October 2017.
There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 12 October 2017 (“the minute”) and:
(a)The minute be placed on the Court file;
(b)The solicitors for the respondent engross the minute and deliver a clean, certified, electronic copy of the minute (“the copy”) to the Chambers of Judge Harland by way of email to associate.judgeharland@federalcircuitcourt.gov.au within seven days; and
(c)Upon delivery of the copy to the Court, the within orders be extracted and the copy be attached hereto.

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1262 of 2017

MR BIRCH

Applicant

And

MS MILLETT

Respondent

REASONS FOR JUDGMENT

These reasons for judgment were delivered orally. They have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is the wife’s application for interim maintenance in the sum of $500 a week. The husband quite properly concedes that the wife has a need, but says he does not have the capacity to pay it. The figures in her financial statement were not challenged. The husband’s financial statement is conceded by him to contain several errors. The gross figure for the husband’s income is not $1,698, but, in fact, $2,260, there being a difference of $562 per week. The husband’s tax liability is greater than what appears in his financial statement, being $746 instead of $431, being a difference of $315. As…

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 Birch and Millett

Details

AGLC: Birch and Millett [2017] FCCA 2557
Case: [2017] FCCA 2557
Decision Date: 12 October 2017

CaseChat Overview and Summary

In the Federal Circuit Court, Judge Harland considered an application by the father (applicant) for orders concerning maintenance and parenting arrangements, with the mother (respondent) also involved in the proceedings. The dispute involved interim financial support and parenting arrangements for the parties' child.

The court was required to determine the appropriate interim maintenance payable by the father to the mother, and to make interim parenting orders by consent. Additionally, the court needed to address the timeline for filing evidence in chief for the trial.

Judge Harland made orders for the father to pay $500 per week in maintenance to the mother until further order. The court also extended the deadline for filing affidavits of evidence in chief and witness affidavits to 31 October 2017. Interim parenting orders were made by consent in terms of a Minute of Consent Orders signed by the parties on 12 October 2017, with specific directions for the engrossment and electronic delivery of the minute to the court. The court noted that particulars of obligations, consequences of contravention, and assistance for compliance, as set out in Attachment A, were included pursuant to sections 65DA(2) and 62B of the *Family Law Act 1975*.

Orders

Orders of the court

Until further order, the applicant father pay to the respondent mother maintenance at the rate of $500 per week.

Order 5 of the orders made on 11 August 2017 be amended insofar as the date for filing of the affidavit of evidence in chief and any affidavit of any witness which the party seeks to rely on at trial be extended until 31 October 2017.

There be interim parenting orders, by consent, in terms of the Minute of Consent Orders signed by the parties and dated 12 October 2017 (“the minute”) and:

(a) The minute be placed on the Court file;

(b) The solicitors for the respondent engross the minute and deliver a clean, certified, electronic copy of the minute (“the copy”) to the Chambers of Judge Harland by way of email to associate.judgeharland@federalcircuitcourt.gov.au within seven days; and

AND THE COURT NOTES THAT:

Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in Attachment A and these particulars are included in these orders.

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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