Bloom and Sickle

[2009] FamCA 471

FAMILY COURT OF AUSTRALIA

BLOOM & SICKLE [2009] FamCA 471

FAMILY LAW – PRACTICE AND PROCEDURE – Extension of time to appeal

Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth)

APPLICANT: Mr Bloom

RESPONDENT: Ms Sickle

FILE NUMBER: MLC 3390 of 2009

DATE DELIVERED: 20 May 2009

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 20 May 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr M. Wilson

SOLICITOR FOR THE APPLICANT: Leanne Cain & Associates

COUNSEL FOR THE RESPONDENT: Mr S. Bacon

SOLICITOR FOR THE RESPONDENT: Manby & Scott

Orders

1. That the time be extended to enable the appellant to appeal the orders made by the Magistrates Court of Victoria at Melbourne on 15 January 2009.

2. That the matter be set down for final hearing as the second case in the list before me commencing on 31 August 2009 at 10.00am.

3. That the respondent’s application filed in the Magistrates Court of Victoria at Melbourne on 25 September 2008 be treated as if it were filed in this court.

4. That each party have leave to issue subpoenae for production of documents to be issued by 4 June 2009 returnable on 7 July 2009 at 9.30am.

5. That the parties attend a conciliation conference with a registrar of the Court at 9.15am on 22 July 2009 and make a bona fide endeavour to resolve the issues arising from the substantive application.

6. That all questions as to costs of the parties this day be reserved.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel and solicitor acting as counsel to attend.

2. That the order made by the Magistrates Court at Melbourne in proceeding number FL51/08 on 15 January 2009 be set aside.

3. That the wife’s oral application for an order for interim maintenance pursuant to s 66L of the Family Law Act 1975 (Cth) is dismissed.

4. That the solicitor for the husband serve a copy of these orders as soon as practicable upon the Registrar of Child Support.

5. That the reasons for judgment this day be transcribed and be made available to the parties.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER:  MLC 3390 of 2009

MR BLOOM

Applicant

And

MS SICKLE

Respondent

REASONS FOR JUDGMENT

1. I am going to set aside the orders of the Magistrates Court at Melbourne made on 15 January 2009 and I am also going to dismiss the application made orally for interim child support.

2. This is an application to appeal out of time against an order made by a magistrate sitting in the Melbourne Magistrates Court on 15 January 2009.  It seems common ground that the husband did not appear on that day and orders were made for the payment of $75 per week for a child who is now over 18 years of age.  There was also an order made for a departure from the Child Support (Assessment) Act 1989 (Cth) which appears to have been made over a period of a number of years.

3. The magistrate on that same day made an order which I am a little puzzled about that says that service of the application and the supporting documentation may be effected by forwarding them to the Child Support Agency with a request for the agency to forward them to the respondent.  There is a notation on the bottom of the order that says:

   I am satisfied the respondent has been served retrospectively in accordance with my order.

4. It is a little hard to imagine how that could have happened.  It may have been that the magistrate was saying that she was satisfied that the substituted service method was the appropriate way of serving the husband, but in any event, her Honour relied upon an affidavit by the solicitor for the applicant, indicating that he had sent the documents to the Child Support Agency requesting that they be sent to the husband and in turn attached an affidavit by the officer of the Child Support Agency saying that in October 2008, they sent the various documents to the husband by registered post.  That is where the issue stops.

5. Regulation 11A of the Child Support (Assessment) Regulations 1989 says that communications and documents may be served by the registrar of the agency at the address on their records and that is to be deemed service unless the contrary is proved. I have no evidence from the Agency that they effected the post, other than the affidavit. I do not know whether or not the document was ever returned to them. I do not know whether or not, if it was sent by registered post, it was collected by the husband. What I do have is an affidavit by the husband sworn 20 April, and bearing in mind that this is on his oath, in which he says that he was never served with the application and was not served at any time after the orders were made with either the application or the orders.

6. It must be that those statements on oath set aside effectively the presumption in Regulation 11A.  In those circumstances, the only evidence I have is that the husband was not served and there is no evidence to the contrary in the affidavit of the wife sworn 8 May 2009 and filed in these proceedings.

7. Natural justice requires that the husband have an opportunity to be heard and under those circumstances, the orders must be set aside. 

8. I then had an oral application made to me under s 66L under the Family Law Act 1975 (Cth) for urgent adult child maintenance. By agreement between the parties, the affidavit that was relied upon by the wife in the Melbourne Magistrates Court filed on 25 September 2008 was said to be the evidence upon which the order could be made.

9. There are two paragraphs in that affidavit to which my attention was drawn.  The first says that:

   The child […] is currently undertaking full‑time studies at […] TAFE.  Although she works part-time, she only earns around $100 per week.  She lives with me and I support her, including providing her with transport.  The respondent provides no ongoing support for [the child].  If this matter cannot be settled before being set down for trial, I shall ask [the child] to file her own affidavit as regards the adult child maintenance component of this case.

10. It is common ground that affidavit of the child was never filed.   A second paragraph was drawn to my attention in which the wife sets out that in her financial situation, she is unable to adequately support the child.

11. Section 66L has a very strong emphasis on the court being satisfied that someone cannot support themselves because of the need to complete some form of education. There is no evidence in this case that would enable me to make an order on an interim basis, having regard to the fact that the evidence is sparse. It may very well be on the final hearing when the evidence is complex and tested that the situation may be different, but at least at this stage, I am not satisfied that there is enough evidence for me to be able to make that order. In those circumstances, the oral application is also dismissed.

I certify that the preceding Eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  1 June 2009