Cutler& Lester - [2007] FMCAfam 563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUTLER& LESTER

[2007] FMCAfam 563

CHILD SUPPORT – Amendment of application to include period between two periods nominated in original application – costs of adjournment.

Child Support (Assessment) Act 1989, ss.98B, 111, 112, 116
Family Law Act 1975, s.117

Applicant:

MS CUTLER

Respondent:

MR LESTER

File Number:

MLM 10601 of 2006

Judgment of:

Riley FM

Hearing date:

1 August 2007

Date of Last Submission:

1 August 2007

Delivered at:

Melbourne

Delivered on:

14 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr Indovino

Solicitors for the Applicant:

Westminster Lawyers Pty Ltd

Counsel for the Respondent:

Mr Dickson

Solicitors for the Respondent:

Moores Legal Pty Ltd

DECLARATION

Pursuant to s.45 of the Federal Magistrates Act 1999, it is in the interests of the administration of justice that interrogatories be allowed in this proceeding.

ORDERS

The court has leave pursuant to s.112 of the Child Support (Assessment) Act 1989 to make an order under s.118 of the Child Support (Assessment) Act 1989 in respect of the period 1 January 2002 to 14 December 2005.
The applicant has leave to amend the application filed on 20 December 2006 in accordance with the proposed amended application filed on

31 July 2007
.
The further hearing of the application be adjourned to 20 December 2007 at 10.00am for final hearing before Federal Magistrate Hartnett (with an estimated hearing time of 2 days).
The applicant file and serve any further affidavit to be relied upon on or before 30 November 2007.
Each party file and serve an affidavit of all relevant documents in his or her possession or custody or power on or before 31 August 2007.
Each party provide inspection of documents on or before 14 September 2007.
Each party have liberty to administer to the other party interrogatories concerning financial matters on or before 12 October 2007.
Each party provide sworn answers to interrogatories on or before
9 November 2007.
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The parties’ costs of today be reserved.

NOTATION

A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of…

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 Cutler& Lester

Details

AGLC: Cutler& Lester [2007] FMCAfam 563
Case: [2007] FMCAfam 563
Decision Date: 14 August 2007

CaseChat Overview and Summary

Cutler & Lester was a case before the Federal Magistrates Court, involving a dispute regarding child support payments. The applicant sought an order under the Child Support (Assessment) Act 1989 for the period 1 January 2002 to 14 December 2005. The legal issues before the court included whether the applicant had leave to amend their application and whether certain procedural directions should be issued for the final hearing. The court was required to decide on the appropriateness of granting leave to amend the application and the necessity of issuing procedural orders to facilitate the final hearing.

The court found that the applicant should be granted leave to amend their application. Additionally, the court determined that issuing procedural directions was necessary to ensure that the final hearing proceeded efficiently and fairly. The court issued several orders, including directions for filing and serving affidavits and documents, providing inspection of documents, administering interrogatories, and reserving costs. The court also noted that non-compliance with the orders could result in the application being struck out, the proceedings proceeding undefended, or the trial date being vacated.

In summary, the court granted the applicant leave to amend their application and issued procedural directions for the final hearing. The applicant was granted leave to amend their application in accordance with the proposed amended application filed on 31 July 2007. The further hearing of the application was adjourned to 20 December 2007 at 10.00am for final hearing before Federal Magistrate Hartnett, with an estimated hearing time of two days. The court also issued directions for filing and serving affidavits and documents, providing inspection of documents, administering interrogatories, and reserving costs. Non-compliance with the orders could result in the application being struck out, the proceedings proceeding undefended, or the trial date being vacated.

Orders

Orders of the court

The court has leave pursuant to s.112 of the Child Support (Assessment) Act 1989 to make an order under s.118 of the Child Support (Assessment) Act 1989 in respect of the period 1 January 2002 to 14 December 2005.

The applicant has leave to amend the application filed on 20 December 2006 in accordance with the proposed amended application filed on

31 July 2007

The further hearing of the application be adjourned to 20 December 2007 at 10.00am for final hearing before Federal Magistrate Hartnett (with an estimated hearing time of 2 days).

The applicant file and serve any further affidavit to be relied upon on or before 30 November 2007.

Each party file and serve an affidavit of all relevant documents in his or her possession or custody or power on or before 31 August 2007.

Each party provide inspection of documents on or before 14 September 2007.

Each party have liberty to administer to the other party interrogatories concerning financial matters on or before 12 October 2007.

Each party provide sworn answers to interrogatories on or before

9 November 2007.

In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.

10.

The parties’ costs of today be reserved.

NOTATION

A. In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a) the filing of documents; or

(b) any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

B. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.

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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