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Burns & Grint

Burns & Grint

Case [2014] FamCAFC 48 28 March 2014

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FAMILY COURT OF AUSTRALIA

BURNS & GRINT

[2014] FamCAFC 48

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – CHILD SUPPORT - Where the appellant seeks leave to appeal and if leave granted to appeal orders of a Federal Magistrate dismissing a review by the appellant to this appeal against a decision of the Social Security Appeals Tribunal (SSAT) – Where the grounds of appeal are relied upon in as the basis of seeking leave to appeal – Where there is no merit in any ground of appeal – Where there is no error of principle or substantial injustice or a matter of general importance – Application for leave to appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the appellant seeks leave to adduce further evidence – Where the application is not opposed by the respondent – Application to adduce further evidence granted by consent.

Child Support (Assessment) Act 1989 (Cth) – s 117
Child Support (Registration and Collection) Act 1988 (Cth) – ss 87 to 103AZ,
s 107A(1), (2) and (5), s 110B, s 110G and Part VII
Family Law Act 1975 (Cth) – s 94AA
Federal Circuit Court of Australia Act 1999 (Cth) – s 10(2)

Family Law Rules 2004 (Cth)

Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10
Comcare v Moon [2003] FCA 569
Craig v State of South Australia (1995) 131 ALR 595
Forbes & Bream [2010] FamCAFC 6
Gilmour & Gilmour (1995) FLC 92-591
Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641
Hides & Hatton (1997) FLC 92-759
Johnson & Johnson (2000) 201 CLR 488

Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307
Rutherford & Rutherford (1991) FLC 92-255

APPLICANT:

Mr Burns

RESPONDENT:

Ms Grint

FILE NUMBER:

BRC

8404

2010

APPEAL NUMBER:

2012

DATE DELIVERED:

28 March 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, Strickland & Hogan JJ

HEARING DATE:

27 June 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court of Australia

LOWER COURT JUDGMENT DATE:

20 April 2012

LOWER COURT MNC:

[2012] FMCAfam 347

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Selfridge

SOLICITOR FOR THE APPLICANT:

Shine Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Alexander with
Ms Walker-Munro

SOLICITOR FOR THE RESPONDENT:

Legal Aid Queensland

Orders

By consent, the application in an appeal filed on 18 April 2013 seeking leave to adduce further evidence be granted.
The application for leave to appeal be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burns & Grint has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 43 of 2012
File Number: BRC 8404 of 2010

Mr Burns

Applicant

And

Ms Grint

Respondent

REASONS FOR JUDGMENT

Introduction

By Amended Notice of Appeal…

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 Burns & Grint

Details

AGLC: Burns & Grint [2014] FamCAFC 48
Case: [2014] FamCAFC 48
Decision Date: 28 March 2014

CaseChat Overview and Summary

In this matter, the appellant, Burns, sought leave to appeal against orders made by a Federal Magistrate, which dismissed a review by Burns of a decision of the Social Security Appeals Tribunal. The dispute pertained to child support, and the Federal Circuit and Family Court of Australia was the court involved. The appellant argued that the Federal Magistrate's decision was flawed and sought to appeal on various grounds.

The court was required to determine whether the grounds of appeal presented by Burns had merit and whether there was an error of principle, substantial injustice, or a matter of general importance that warranted leave to appeal. The court thoroughly examined each ground of appeal presented by Burns, finding that none of them had merit. The court concluded that there was no error of principle or substantial injustice in the Federal Magistrate's decision, nor was there any matter of general importance.

The court dismissed the application for leave to appeal, finding that there was no basis for allowing an appeal. However, the court did grant an application by the appellant to adduce further evidence, which was not opposed by the respondent, Grint.

The orders made by the court were that the application to adduce further evidence be granted by consent, and the application for leave to appeal be dismissed.

Orders

Orders of the court

By consent, the application in an appeal filed on 18 April 2013 seeking leave to adduce further evidence be granted.

The application for leave to appeal be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Burns & Grint [2014] FamCAFC 48

Most Recent Citation

Child Support Registrar & Ahern [2014] FamCAFC 105

Cases Citing This Decision

Penman and Child Support Registrar and Anor [2015] FamCAFC 135
Citation 1 (Para 3)

…of law) is explained in decisions of this Court such as Child Support Registrar & Crabbe and Anor (2014) FLC 98-062 at [4] to [12], and Burns & Grint [2014] FamCAFC 48 at [4] to [11].…
Child Support Registrar & Crowley and Anor [2015] FamCAFC 76
Citation 2 (Para 1)

…court arising from those appeals are not so restricted. (See, for example, Child Support Registrar & Crabbe and Anor (2014) FLC 92-062; Burns & Grint [2014] FamCAFC 48).…
Yip and Wreford & Anor [2015] FamCAFC 21
Citation 3 (Para 1)

…ons governing appeals from the Tribunal have recently been discussed in Child Support Registrar & Crabbe and Anor (2014) FLC 92-062 and Burns & Grint [2014] FamCAFC 48.…
Child Support Registrar & Ahern [2014] FamCAFC 105
Citation 4 (Para 4)

…n Act”), have been explained in the recent decisions of this Court in Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10 and Burns & Grint [2014] FamCAFC 48.…

See all citing cases →

Cases Cited

Rawson Finances Pty Ltd v Commissioner of Taxation [2016] FCAFC 95
Citation 1 (Para 4)

…nt decision of the Full Court of the Federal Court of Australia (Jessup, Jagot and Nicholas JJ) in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 where it was said by Jagot J (at [84]): The distinction between evidence or material which could support a factual finding and evidence or material w…
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Citation 2 (Para 1)

…rd & Rutherford (1991) FLC 92-255), or that the matters raised are of considerable general importance ( Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10). It has been acknowledged though that in applying these principles in child support matters the court should take a less restrictive approach than appli…
Burns and Grint (SSAT Appeal) [2012] FMCAfam 347
Citation 3

…[2012] FMCAfam 347…
Forbes & Bream [2010] FamCAFC 6
Citation 4 (Para 3)

…Further, in Forbes & Bream [2010] FamCAFC 6 the Full Court (Bryant CJ, Boland and Stephenson JJ) recognised, at [39], that while generally there must be demonstrated that there has been “an error of principle in the making of the order sought to be appealed or that the order will result in substantial injustice” be…
Applicant VEAT v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1545
Citation 5 (Para 4)

…611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior…
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32
Citation 6 (Para 4)

…1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting consideration of whether a finding should or should not have been made. They are considering the anterior question whether the evide…
Comcare v Moon [2003] FCA 569
Citation 7 (Para 5)

…We were also referred by counsel for the mother to a paragraph from a decision of Mansfield J in Comcare v Moon [2003] FCA 569. That paragraph is particularly apt for present purposes and it is instructive to quote it here. His Honour said this (at [33]): In any event, in my judgment, the finding of the Tribunal…
Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6
Citation 8 (Para 2)

…Upon considering the High Court’s remarks in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 and Annetts v McCann (1990) 170 CLR 596, the Federal Magistrate noted that “the only rights arising from an administrative decision are procedural, not substantive”. Thus,…
Hendy v Deputy Child Support Registrar [2001] FamCA 632
Citation 9 (Para 2)

…In Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641, the Full Court (Ellis, Kay and Mullane JJ), with reference to the authorities including Gilmour , reiterated that the court should not be too restrictive in granting leave to appeal if it is perceived that there has been any error of principle which has affected the applicant’s su…
Johnson v Johnson [2000] HCA 48
Citation 10 (Para 5)

…Upon considering the High Court’s remarks in Johnson v Johnson (2000) 201 CLR 488, the Federal Magistrate determined at [56] there was: …nothing in the manner in which this application was disposed of before the Tribunal to suggest the manner in which the Tribunal conducted itself demonstrated bias to the requisite standar…
Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21
Citation 11 (Para 4)

…ALD 31, Kostas at [16], Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; 162 ALR 577; 54 ALD 289; [1999] HCA 21 at [145] and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12; 78 ALD 224; [2004] HCA 32 at [38]) the courts are not inviting c…
Craig v State of South Australia [1994] HCATrans 94
Citation 12 (Para 1)

…can only appeal from a decision on that review on a question of law (as opposed to a question of fact or process – Craig v State of South Australia (1995) 131 ALR 595 at 602-603).…
Annetts v McCann [1990] HCA 57
Citation 13 (Para 2)

…he High Court’s remarks in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam (2003) 214 CLR 1 and Annetts v McCann (1990) 170 CLR 596, the Federal Magistrate noted that “the only rights arising from an administrative decision are procedural, not substantive”. Thus, his Honour found th…
[1948] 1 KB 223 [1948] 1 KB 223
Citation 14 (Para 3)

…significant that the decision cannot be justified, and thus that becomes an error of law ( Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223). However, that is simply not the case here.…
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
Citation 15 (Para 4)

…ith, but we can do no better than refer to the recent decision of the Full Court of the Federal Court of Australia (Jessup, Jagot and Nicholas JJ) in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 where it was said by Jagot J (at [84]): The distinction between evidence or material which could support a factual finding and evidence o…

Legislation Cited

Family Law Act 1975 (Cth)
2 mentions
Federal Circuit Court of Australia Act 1999 (Cth)
2 mentions (from Para 6)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 4)
Child Support (Registration and Collection) Act 1988 (Cth)
1 mention (from Para 1)
Family Law Rules 2004 (Cth)
1 mention (from Para 1)