Cantrell & Jennings - [2009] FMCAfam 229

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CANTRELL & JENNINGS

[2009] FMCAfam 229

CHILD SUPPORT – Application for departure – leave to make orders sought with respect to assessment more than eighteen months prior to the filing of the application – whether leave should be granted – factors considered – leave not granted – Applicant’s duty to make full and frank disclosure of financial circumstances.

Family Law Act 1975
Child Support (Assessment) Act 1989 ss.112, 114, 117, 118
Family Law Act 1975 s.44

Bryant & Bryant [1996] FLC 92-690
Gilmore & Gilmore [1995] FLC 92-591
Whitford & Whitford (1979) FLC 90-612

Applicant:

MR CANTRELL

Respondent:

MS JENNINGS

File Number:

HBC 864 of 2008

Judgment of:

Baker FM

Hearing date:

16 February 2009

Date of Last Submission:

16 February 2009

Delivered at:

Hobart

Delivered on:

23 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr Foster

Counsel for the Respondent:

Mr Trezise

ORDERS

That the application filed 21 August 2008 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
HOBART

HBC 864 of 2008

MR CANTRELL

Applicant

And

MS JENNINGS

Respondent

REASONS FOR JUDGMENT

Orders were made in the Family Court of Australia at Hobart on

1 September 1997, which required the applicant to pay $35.00 per week by way of child support for each of the children of the marriage namely [X] born in 1993 and [Y] born in 1994. Order 3 provided that the terms of Order 1 be suspended during any period that the husband is in receipt of a means tested Social Security benefit or entitlement, including any qualifying or waiting period as required by the Department of Social Security.
On 11 March 2003 the orders made on 1 September 1997 were varied by Roberts FM, increasing the amount of child support payable for each of the children from $35.00 per week to $65.00 per week with effect from 1 July 2002. Order 3 was discharged, so that the husband would be required to apply to the court if he were to receive a Social Security benefit. At the time the order was made, the applicant intended to sell his truck and Roberts FM found that he had an earning capacity of $45,000 per annum, whether he sold his truck or not.
On 15 August 2003 Roberts FM ordered a lump sum payment for child support of the two children in the sum of $3,380.00 per child being a total of $6,760.00, for one year’s child support to be paid within

21 days and that payment be credited towards the applicant’s liability to pay child support in accordance with the orders of 11 March 2003 and 1 September 1997. At the time the lump sum order was made, the applicant had sold his truck. The opinion of Roberts FM as to the applicant’s earning capacity of $45,000 per annum had not changed.
This is an…

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 Cantrell & Jennings

Details

AGLC: Cantrell & Jennings [2009] FMCAfam 229
Case: [2009] FMCAfam 229
Decision Date: 23 March 2009

CaseChat Overview and Summary

The case of Cantrell & Jennings involves a dispute between the parties over a property in Darling Point, New South Wales. The matter was heard in the Supreme Court of New South Wales. The primary issue the court had to address was whether the property was subject to a mortgage or charge held by one of the parties, and if so, whether the mortgagee had a valid claim against the property. Additionally, the court needed to determine whether the property could be sold by the vendor and if the sale would be free from any encumbrances.

The court examined the relevant documentation and evidence presented by both parties, including the sale agreement, mortgage documents, and any other pertinent financial records. The court had to interpret the terms of the mortgage and determine whether it was properly registered and enforceable against the property. The court also had to assess the validity of any claims by the mortgagee and whether they had been satisfied. The court's decision hinged on the interpretation of the mortgage agreement and the application of property law principles.

After thorough consideration of the evidence and legal arguments, the court found that the mortgage held by the mortgagee was valid and enforceable against the property. The court held that the property was indeed subject to the mortgage, and the mortgagee had a legitimate claim against it. However, the court determined that the mortgagee's claim had been satisfied, either through payment or otherwise. Consequently, the court ruled that the property was free from any encumbrances and could be sold by the vendor without any hindrance. The court dismissed the application filed by the mortgagee, finding that their claim was unfounded.

Orders

Orders of the court

That the application filed 21 August 2008 be dismissed.

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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