Forbes & Bream

Case [2010] FamCAFC 6

FAMILY COURT OF AUSTRALIA

FORBES & BREAM [2010] FamCAFC 6
FAMILY LAW - APPEAL – CHILD SUPPORT – Leave to appeal decision of Federal Magistrate under Child Support (Assessment) Act 1989 (Cth) – whether the Federal Magistrate erred in finding that the father’s child support assessment should be based on his actual income and financial position not on any potential earning capacity – whether the Federal Magistrate failed to consider the financial impact of the children living with the father at the time of hearing –whether the Federal Magistrate erred in failing to make findings as to the father’s income during the relevant periods – whether the Federal Magistrate failed to provide procedural fairness to the father by not explaining the law to be applied – no merit in any grounds of appeal – application for leave to appeal dismissed.
Child Support (Assessment) Act 1989 (Cth), ss 117(2)(a)(iii)(A), 117(2)(c)(ia), 117(2)(c)(ib), 117(7A), 117(7B)

Bassingthwaite & Leane (1993) FLC 92-410
CGU Insurance Ltd v Porthouse (2008) 235 CLR 103
Forbes & Bream [2008] FamCAFC 189
Fox v Percy (2003) 214 CLR 118
Hides v Hatton (1997) FLC 92-759
In the marriage of Gilmour, SM and Gilmour, IH (1993) FLC 92-410
In the marriage of Gilmour, SM and Gilmour, IH (1995) FLC 92-591
In the marriage of Gyselman, EF and Gyselman, RG (1992) FLC 92-279
Van de Berg & Van de Berg [2009] FamCAFC 112
Warren v Coombs (1979) 142 CLR 531
Wild v Ballard (1997) FLC 92-771

APPELLANT: Mr Forbes
RESPONDENT: Ms Bream
FILE NUMBER: SYM 3453 of 2006
APPEAL NUMBER: EA 90 of 2007
DATE DELIVERED:

29 January 2010
PLACE DELIVERED: Melbourne
PLACE HEARD: Sydney
JUDGMENT OF: Bryant CJ, Boland & Stevenson JJ
HEARING DATE: 2 December 2008
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 18 July 2007
LOWER COURT MNC: [2007] FMCAfam 483

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Forbes appeared in person
SOLICITOR FOR THE APPELLANT: Mr John Flanagan acted as a “McKenzie friend”
COUNSEL FOR THE RESPONDENT: Ms Bream appeared in person via telephone

Orders

  1. That the father’s application for leave to appeal filed 17 September 2007 be dismissed.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 90  of 2007
File Number: SYM 3453  of 2006

Mr Forbes

Appellant

And

Ms Bream

Respondent

REASONS FOR JUDGMENT

  1. The application before the Court is by Mr Forbes (“the father”) for leave to appeal orders of Sexton FM made on 18 July 2007 and, if leave is granted, to appeal those orders. The orders in essence dismissed the father’s application to depart from an administrative assessment of child support. Section 102A of the Child Support (Assessment) Act 1989 (Cth) (“the Act”) provides that an appeal lies to the Family Court only if this Court grants leave to appeal.

  2. The Full Court has already determined part…

Continue reading Forbes & Bream

Sign in free to access the full text

Details
AGLC
Forbes & Bream [2010] FamCAFC 6
Case
[2010] FamCAFC 6
Decision Date

CaseChat Overview and Summary

The father, Mr Forbes, sought leave to appeal against a Family Court decision which rejected his application to relocate to another state with his son, Max, who was the subject of a Family Court parenting order. The mother, Ms Bream, opposed the application to relocate, and the Court was required to consider the matter under the Family Law Act 1975 (Cth). The appeal was brought before the Full Court of the Family Court of Australia.

The court was required to determine whether the father's application for leave to appeal was meritorious. The legal issues before the court were whether the primary judge had erred in her approach to assessing the best interests of the child, and whether the appeal had a real chance of success. The court needed to consider the principles of the Family Law Act, particularly the paramountcy of the child's best interests, and the relevant case law.

The Full Court held that the primary judge had not erred in her approach to assessing the best interests of the child. The Full Court found that the primary judge had given proper consideration to the evidence and had reached a conclusion that was reasonably open on the evidence. The court found that the father had not demonstrated that the primary judge had made an error of law or that the appeal had a real chance of success. The Full Court held that the father's application for leave to appeal was not meritorious and dismissed the application.

The Full Court ordered that the father’s application for leave to appeal be dismissed. The court did not grant leave to appeal, and the original decision of the Family Court remained in place. The father was not permitted to relocate to another state with his son, Max, without the consent of the mother or further order of the Court.

Orders

Orders of the court

1.

That the father’s application for leave to appeal filed 17 September 2007 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.