Blanchard & Blanchard - [2009] FamCA 321

FAMILY COURT OF AUSTRALIA

BLANCHAND & BLANCHAND [2009] FamCA 321

FAMILY LAW – CHILD SUPPORT ASSESSMENT – application for departure order – periodic and non-periodic payment – jurisdiction and power – stay of proceedings and adjournment pending appeal – principles and their application

Child Support (Assessment) Act 1989 (Cth) ss 99, 115 (repealed), 116(1), 116(1)(b)(i) and (ii), 117(1)(a) and (b), 118

Gallo v Dawson (1990) 93 ALR 47
Jennings Construction Limited v Burgundy Royal Investments Pty Ltd (No. 1) (1986) 161 CLR 681
Kelly & Kelly (1981) FLC 91-007
Lightfoot v Hampson (1996) FLC 92-663
Reid & Reid (1999) FLC 98-007
Tormsen & Tormsen (1993) FLC 92-39
Cooper Brookes (Wollongong ) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297

APPLICANT: Mr Blanchand

RESPONDENT: Ms Blanchand

FILE NUMBER: SYF 3639 of 2005

DATE DELIVERED: 30 April 2009

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 30 March 2009

WRITTEN SUBMISSIONS:
2 April 2009

6 April 2009
24 April 2009

REPRESENTATION

SOLICITOR FOR THE APPLICANT: G. Meredith
GAYLE MEREDITH & ASSOCIATES

COUNSEL FOR THE RESPONDENT: J. Millar

SOLICITOR FOR THE RESPONDENT: BARKUS DOOLAN KELLY
Orders
(1)       Declare that the Court has jurisdiction to hear and determine the part-heard applications of the wife for orders for departure from the Child Support Agency assessments in relation to the liability of the husband for payment of child support with respect to the 2 children of the marriage.
(2)       That the Response to an Application in a Case of the husband filed 26 March 2009 is dismissed.
(3)       That there be a stay of proceedings of orders numbered 6 to 10 and 12 made 21 October 2008 pending a determination of the husband’s Appeal in the Full Court or as otherwise ordered upon the following terms:-
(a)       That the husband diligently prosecute his Appeal.
(b)       That the husband seek the earliest date for hearing of his Appeal regardless of the convenience of his counsel or solicitor.
(4)        That the further hearing of the part-heard applications of the wife referred to in Order 1 is adjourned until further order.
(5)       That by consent paragraph 6 of the Orders made on 21 October 2008 be varied under the slip rule so that the words “[B] Superannuation Fund (“the fund”)” are inserted in substitution for the words “[M] Super Trust Number […] (“the fund”) as at the date of these orders.”
(6)       That by consent there be no Order as to costs in relation to Order 5.
(7)       Liberty to apply for directions upon seven (7) days written notice being given.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY
FILE NUMBER: SYF 3639 of 2005

MR BLANCHAND
Applicant
And

MS BLANCHAND
Respondent
REASONS FOR JUDGMENT
Introduction
1.In these proceedings, the husband seeks orders that the wife’s part-heard application for orders for departure from the…

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: Blanchard & Blanchard [2009] FamCA 321
Case: [2009] FamCA 321
Decision Date: 30 April 2009

CaseChat Overview and Summary

In the matter of *Blanchard & Blanchard*, the wife sought orders for departure from Child Support Agency assessments concerning the husband's child support liability for their two children. The husband had filed a response to the wife's application. The court was required to determine whether it had jurisdiction to hear the wife's applications and the appropriate course of action regarding the husband's response and existing orders.

The primary legal issue before the court was its jurisdiction to entertain the wife's applications for departure from child support assessments. Additionally, the court had to consider the husband's response and the implications of existing orders made on 21 October 2008, particularly in light of a pending appeal by the husband in the Full Court.

Justice Rose declared that the Court possessed jurisdiction to hear and determine the wife's part-heard applications for departure from child support assessments. The husband's response was dismissed. The court ordered a stay of specific existing orders pending the determination of the husband's appeal, provided the husband diligently prosecuted the appeal and sought the earliest possible hearing date. The further hearing of the wife's applications was adjourned. By consent, a previous order was varied under the slip rule to correct a superannuation fund name, with no order as to costs for this variation. Liberty to apply for directions was granted.

Orders

Orders of the court

(1) Declare that the Court has jurisdiction to hear and determine the part-heard applications of the wife for orders for departure from the Child Support Agency assessments in relation to the liability of the husband for payment of child support with respect to the 2 children of the marriage.

(2) That the Response to an Application in a Case of the husband filed 26 March 2009 is dismissed.

(3) That there be a stay of proceedings of orders numbered 6 to 10 and 12 made 21 October 2008 pending a determination of the husband’s Appeal in the Full Court or as otherwise ordered upon the following terms:-

(a) That the husband diligently prosecute his Appeal.

(b) That the husband seek the earliest date for hearing of his Appeal regardless of the convenience of his counsel or solicitor.

(4) That the further hearing of the part-heard applications of the wife referred to in Order 1 is adjourned until further order.

(5) That by consent paragraph 6 of the Orders made on 21 October 2008 be varied under the slip rule so that the words “[B] Superannuation Fund (“the fund”)” are inserted in substitution for the words “[M] Super Trust Number […] (“the fund”) as at the date of these orders.”

(6) That by consent there be no Order as to costs in relation to Order 5.

(7) Liberty to apply for directions upon seven (7) days written notice being given.

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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