CASSIDY & SIBLY - [2015] FamCA 335

FAMILY COURT OF AUSTRALIA

CASSIDY & SIBLY

[2015] FamCA 335

FAMILY LAW – PRACTICE & PROCEDURE – Stay – stay of orders pending delivery of judgment – where husband seeks a stay of garnishee orders – wife opposed application for stay – stay granted pending delivery of final judgment.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Friscioni & Friscioni [2009] FamCAFC 43

APPLICANT:

Mr Cassidy

RESPONDENT:

Ms Sibly

FILE NUMBER:

DNC

570

2010

DATE DELIVERED:

1 May 2015

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Darwin

JUDGMENT OF:

Dawe J

HEARING DATE:

8 September 2014, 15 – 16 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

n/a

SOLICITOR FOR THE APPLICANT:

In Person (by Cisco Jabber)

COUNSEL FOR THE RESPONDENT:

Ms Farmer

SOLICITOR FOR THE RESPONDENT:

Withnalls Lawyers

Orders

The garnishment of funds from the wages of the husband pursuant to the administrative assessment of Child Support be stayed pending further order.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: DNC 570 of 2010

Ms Sibly

Applicant

And

Mr Cassidy

Respondent

REASONS FOR JUDGMENT

Introduction

This judgment concerns an application by Mr Cassidy (“the husband”) for a stay of the garnishing of his wages pursuant to an order of the Superior Court of Ontario for child support and spouse maintenance. Ms Sibly (“the wife”) opposed the application. The wife has not obtained legal representation and has appeared by Cisco-Jabber for the balance of the Family Court proceedings.
In his Amended Response filed on 24 June 2014 the husband seeks a final order that would see his liability for child support and spouse maintenance arrears discharged and any future liability “reduced to nil” by way of a departure order. The husband sought additional orders for a superannuation splitting order and that each party retain chattels and property currently in their possession. The interim orders sought a stay of the collection of funds pursuant to an administrative assessment of child support and the listing of the matter for trial as soon as possible.
The wife opposed the husband’s application for a stay. In her Amended Initiating Application (which appears in the form of an Application in a Case filed on 19 August 2014 and made an “Amended Initiating Application” by Order of the Court on 8 September 2014) the wife seeks final orders that would see the husband permanently restrained from pursuing the wife for costs ordered and owed, orders for lump sum payments associated with superannuation, personal property and costs associated with travel between Canada and Australia.

Background

The wife is a Canadian citizen who met the husband while working in Australia. The parties commenced cohabitation in October 2004 and married in 2005. There are two children of the marriage, R (“R”) born in Ontario, Canada in 2005 and K (“K”) born…

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.

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Details

AGLC: CASSIDY & SIBLY [2015] FamCA 335
Case: [2015] FamCA 335
Decision Date: 1 May 2015

CaseChat Overview and Summary

In the matter of *Cassidy & Sibly*, Dawe J of the Federal Circuit and Family Court of Australia considered an application concerning the garnishment of funds from the wages of the husband. The dispute centred on an administrative assessment of child support and its impact on the husband's income.

The primary legal issue before the Court was whether the garnishment of the husband's wages, pursuant to the administrative assessment of child support, should be stayed. This required the Court to consider the circumstances under which such a stay would be appropriate, balancing the interests of the child support payee with the financial circumstances of the payer.

Dawe J ordered that the garnishment of funds from the wages of the husband pursuant to the administrative assessment of Child Support be stayed pending further order. This indicates that the Court found sufficient grounds to temporarily halt the collection of child support through wage garnishment, pending a more comprehensive review or further submissions.

Orders

Orders of the court

The garnishment of funds from the wages of the husband pursuant to the administrative assessment of Child Support be stayed pending further order.

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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