C & M

This matter concerned an application by a father for an extension of time to appeal orders made by the Federal Magistrates Court in August 2001, which directed him to pay child maintenance of $100 per week for each of his two children. The father sought to challenge these orders on the grounds that they were made without jurisdiction, as he contended the *Child Support (Assessment) Act 1989* applied due to the parties' separation in 1990. The father could not provide a satisfactory explanation for his absence from the original 2001 hearing, and his assertions regarding the significance of the separation date were considered weak, with a reasonable inference being drawn that he was not greatly concerned by the orders until 2004.

The primary legal issues before the court were whether the father had established sufficient grounds to warrant an extension of time to appeal, and, in considering the substantive merits of his challenge, whether the original maintenance orders were made without jurisdiction. This jurisdictional question hinged on determining the correct date of separation of the parties and its impact on the applicability of the *Child Support (Assessment) Act 1989* and the prohibition under s 66E(1) of the *Family Law Act 1975* against making child maintenance orders in certain circumstances. The court was also required to consider whether the father had discharged the onus of proving that the separation occurred at a time that would render the original orders invalid.

The court, applying the principles of jurisdictional challenge and the onus of proof, found that the father had not discharged his burden. While acknowledging that the original orders might have been made without jurisdiction if the parties separated in 1990, the court expressed grave doubts as to whether the Federal Magistrate in the original proceedings had made a definitive finding of separation in 1990. Furthermore, the court noted inconsistencies in the evidence provided by both parties regarding the date of separation, with the father having previously sworn that separation occurred in 1989. Ultimately, the court was not persuaded that the maintenance orders were made without jurisdiction, nor that they should be set aside, even if it were wrong on the jurisdictional point.

The application for an extension of time to appeal was dismissed, and the original maintenance orders were upheld.