Blizzard and Camoes - [2017] FamCA 67

FAMILY COURT OF AUSTRALIA

BLIZZARD & CAMOES

[2017] FamCA 67

FAMILY LAW – CHILD SUPPORT – Stay application relating to collection of money due under assessment – where the payer is the father – where the mother is over-holding the children in Country I – where the father is the parent entitled to all of the time of the children by virtue of an order – where the mother’s circumstances in Country I are impecunious – where the court has discretion – where stay is appropriate.

Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Blizzard and Camoes[2015] FamCA 1090

APPLICANT:

Ms Blizzard

RESPONDENT:

Mr Camoes

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

8891

2013

DATE DELIVERED:

3 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

3 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Swart

SOLICITOR FOR THE APPLICANT:

Robinson Gill

COUNSEL FOR THE RESPONDENT:

Ms Sweeney

SOLICITOR FOR THE RESPONDENT:

Berger Kordos Lawyers

COUNSEL FOR THE CHILD SUPPORT REGISTRAR:

Ms Wong

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Allen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the application in a case filed on 22 December 2016 be adjourned to a date to be fixed.
That judgment is reserved.
That the amended response filed by the respondent electronically on 1 February 2017 be further amended to include as final orders ought, paragraph 6 and 7 of the interim orders sought in that document.
That the interim orders sought by the father by way of the amended response filed 1 February 2017 and the interim orders sought by the mother by way of the reply filed 2 February 2107 are both dismissed.
Pursuant to s 111C(3) of the Child Support (Registration and Collection) Act1988 (Cth) the relevant assessment of child support and the collection process thereunder are stayed until further order of the court.
That the costs of all parties of this day are reserved to be determined at trial.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That paragraph 5 of the orders made on 23 December 2016 is extended such that the issue is to be determined at trial.
ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 20 April 2017 subject to any part heard case as a two day case.
The evidence in chief of all witnesses shall be given by affidavit.
TIMETABLE:
By 4 pm on 3 April 2017 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought; and
(b)all affidavits of evidence to be relied upon.
The applicant pay all required court fees by 4 pm on 3 April 2017.
By 4 pm on 17 April 2017 the respondent file and serve upon all other parties:
(a)an amended response setting out with precision…

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 Blizzard and Camoes

Details

AGLC: Blizzard and Camoes [2017] FamCA 67
Case: [2017] FamCA 67
Decision Date: 3 February 2017

CaseChat Overview and Summary

In the matter of Blizzard and Camoes, heard before Cronin J, the dispute concerned applications for interim orders and the stay of child support assessments and collection processes. The parties involved were the applicant (mother) and the respondent (father), with an Independent Children’s Lawyer also participating.

The court was required to determine whether to grant interim orders sought by both the mother and the father, and whether to stay the relevant child support assessment and collection process. Additionally, the court needed to set a timetable for the filing of evidence and applications, and to fix a date for the final hearing of the matter.

Cronin J ordered that the interim orders sought by both the mother and the father be dismissed. However, pursuant to s 111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth), the court stayed the relevant child support assessment and collection process until further order. The court also adjourned all applications and fixed the matter for a final hearing before Justice Cronin on 20 April 2017, with directions given for the precise filing of amended applications, responses, and affidavits by specified dates. The evidence in chief of all witnesses was to be given by affidavit.

Orders

Orders of the court

That the application in a case filed on 22 December 2016 be adjourned to a date to be fixed.

That judgment is reserved.

That the amended response filed by the respondent electronically on 1 February 2017 be further amended to include as final orders ought, paragraph 6 and 7 of the interim orders sought in that document.

That the interim orders sought by the father by way of the amended response filed 1 February 2017 and the interim orders sought by the mother by way of the reply filed 2 February 2107 are both dismissed.

Pursuant to s 111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) the relevant assessment of child support and the collection process thereunder are stayed until further order of the court.

That the costs of all parties of this day are reserved to be determined at trial.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

That paragraph 5 of the orders made on 23 December 2016 is extended such that the issue is to be determined at trial.

ALL APPLICATIONS ARE ADJOURNED AND FIXED FOR FINAL HEARING before the Honourable Justice Cronin at 10.00am on 20 April 2017 subject to any part heard case as a two day case.

10.

The evidence in chief of all witnesses shall be given by affidavit.

TIMETABLE:

11.

By 4 pm on 3 April 2017 the applicant file and serve upon all other parties:

(a) an amended application setting out with precision the orders to be sought; and

(b) all affidavits of evidence to be relied upon.

12.

The applicant pay all required court fees by 4 pm on 3 April 2017.

13.

By 4 pm on 17 April 2017 the respondent file and serve upon all other parties:

(a) an amended response setting out with precision the orders to be sought; and

(b) all affidavits of evidence to be relied upon.

14.

By 4 pm on 19 April 2017 the Independent Children’s Lawyer file and serve upon all other parties, any affidavits relied upon.

15.

Without leave of the Court, any affidavit filed beyond the timetable set out in these orders may not be relied upon

SUBPOENAE

16.

All parties have leave to issue subpoenae for the production of documents. If a party is represented by a legal practitioner, the registrar shall, upon the certification of the legal practitioner, be satisfied as to relevance.

17.

By 4 pm on 19 April 2017 all parties file electronically to … a case outline in one document setting out:

(a) the outline of the issues in dispute;

(b) the list of the affidavits to be read;

(d) the list of objections to evidence requiring a ruling;

(e) a list of assets and liabilities.

AND THE PARTIES SHOULD NOTE:

A. Upon non-compliance with the timetable under these orders or any amendments made by the registrar, the Court may relist the case for case management purposes requiring the parties to justify why it should not be removed from the trial list.

B. Affidavits relied upon for previous hearings cannot be relied upon as evidence in chief without leave of the Court.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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