FEKETE & CHILD SUPPORT REGISTRAR - [2016] FamCAFC 145

FAMILY COURT OF AUSTRALIA

FEKETE & CHILD SUPPORT REGISTRAR

[2016] FamCAFC 145

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – LEAVE TO APPEAL – Where the applicant sought to appeal an order setting aside Notices to Produce – Where leave to appeal is required under s 94AA of the Family Law Act 1975 (Cth) and reg 15A of the Family Law Regulations 1984 (Cth) – Application of the test for leave to appeal in Medlow & Medlow (2016) FLC 93-692 – Leave to appeal refused.

Acts Interpretation Act 1901 (Cth) ss 2, 6

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth) s 107A(2)
Family Law Act 1975 (Cth) s 94AA

Family Law Regulations 1984 (Cth) reg 15A
Federal Court Rules 2011 (Cth) r 20.31(1)
Federal Circuit Court Rules 2001 (Cth) rr 6.19, 15A.17

Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170
In re the Will of FB Gilbert (deceased) (1946) 46 SR (NSW) 318
Jess & Jess (2014) FLC 93-620
Luton v Lessels (2002) 210 CLR 333

Medlow & Medlow (2016) FLC 93-692

APPLICANT:

Mr Fekete

RESPONDENT:

Child Support Registrar

FILE NUMBER:

PAC

3558

2015

APPEAL NUMBER:

2016

DATE DELIVERED:

11 August 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

13 July 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT ORDER MADE:

24 March 2016

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Kaplan

SOLICITOR FOR THE RESPONDENT:

Australian Government Solicitor

Orders

The Application for leave to appeal against the orders of Judge Harman made on 24 March 2016 is refused.
The Application in an Appeal filed on 28 June 2016 is dismissed with no order as to costs.
The Respondent is to file in the Eastern Appeals Registry and serve the Applicant with any affidavits relating to and submissions as to costs within 28 days.
The Applicant has a further 28 days on which to file with the Eastern Appeals Registry and serve the Respondent with any affidavits and written submissions to be relied upon.
The matter of costs is fixed for hearing at 10:00 am on Thursday 3 November 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA
AT SYDNEY

Appeal Number: EA 59 of 2016
File Number: PAC 3558 of 2015

Mr Fekete

Applicant

and

Child…

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

Case: [2016] FamCAFC 145
Decision Date: 11 August 2016

CaseChat Overview and Summary

The matter involved an applicant seeking leave to appeal an order made by Judge Harman on 24 March 2016, which set aside Notices to Produce. The applicant aimed to challenge this decision in the court. The legal issues at the core of this case involved the requirements for leave to appeal under section 94AA of the Family Law Act 1975 and regulation 15A of the Family Law Regulations 1984. The court was required to determine whether the applicant met the criteria for leave to appeal, as outlined in the decision of Medlow & Medlow.

The court meticulously applied the test for leave to appeal as articulated in the case of Medlow & Medlow. It considered whether the applicant had a reasonable prospect of success on appeal and whether there were any other compelling reasons that justified the grant of leave. After thorough deliberation, the court found that the applicant did not satisfy the stringent criteria for leave to appeal. Consequently, the application for leave to appeal was refused, and the appeal itself was dismissed without any order as to costs.

The court's reasoning was grounded in the statutory framework and the established case law. It concluded that the applicant's grounds for appeal did not present a reasonable prospect of success and did not meet the other criteria necessary to grant leave. The court ordered the respondent to file and serve any affidavits and submissions regarding costs within a specified timeframe, and similarly instructed the applicant to do the same. Additionally, the matter of costs was set for a hearing on a specified date.

The final orders included the refusal of the application for leave to appeal, the dismissal of the appeal with no order as to costs, and specific directions for the filing and serving of affidavits and submissions relating to costs. The form of the order was subject to entry in the court’s records.

Orders

Orders of the court

The Application for leave to appeal against the orders of Judge Harman made on 24 March 2016 is refused.

The Application in an Appeal filed on 28 June 2016 is dismissed with no order as to costs.

The Respondent is to file in the Eastern Appeals Registry and serve the Applicant with any affidavits relating to and submissions as to costs within 28 days.

The Applicant has a further 28 days on which to file with the Eastern Appeals Registry and serve the Respondent with any affidavits and written submissions to be relied upon.

The matter of costs is fixed for hearing at 10:00 am on Thursday 3 November 2016.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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