FAMILY LAW - APPEAL – CHILD SUPPORT – Leave to appeal decision of Federal Magistrate under Child Support (Assessment) Act 1989 (Cth) – whether substantial prospect of success of ground of appeal asserting error of law – where Federal Magistrate’s orders dismissed father’s application for a departure from an administrative assessment of child support – whether Federal Magistrate had erred in law by applying s 117(7B) of the Child Support (Assessment) Act 1989 (Cth) – held that Federal Magistrate had correctly applied legislation – held that ground of appeal had no merit – leave to appeal on ground of error of law refused.
FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – held that Court has discretion to order for transcript to be provided to parties at Court’s expense – where appellant asserted he could not afford to obtain transcript – where appellant applying for departure from an administrative assessment of child support – where Federal Magistrate at trial found that the appellant had capital means and earning capacity – held not to be an appropriate case for the Court to provide transcript at its own expense.
Acts Interpretation Act 1901 (Cth), s 13 Child Support (Assessment) Act 1989 (Cth), s 117, s 102A, Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006 (Cth) (Act No. 53 of 2006) Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) (Act No. 82 of 2007) Family Law Act 1975 (Cth), s 94(2) Family Law Rules 2004, r 1.12, r 22.23, r 22.24
Andrews & Andrews (Re: Subpoena) (2007) FamLR 358 Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Oakley & Cooper[2008] FamCAFC 129 S & S (unreported, Full Court of the Family Court of Australia, Lindenmayer, Kay and Gee JJ, 20 June 1994) WJD & TEK (1998) 72 ALJR 1323 Zabaneh v Zabaneh (1991) FLC 92-239
That leave to appeal on ground (u) of the Appellant’s amended draft Notice of Appeal is refused.
That the balance of the appeal be stood over to a date to be advised by the Appeals Registrar in late November or early December.
That any transcript the Appellant wishes to rely upon at that adjourned hearing be filed and served on the Respondent by 3 November 2008.
IT IS NOTED that publication of this judgment under…
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 Forbes & Bream
Sign in free to access the full text
Details
AGLC
Forbes & Bream [2008] FamCAFC 189
Case
[2008] FamCAFC 189
Decision Date
CaseChat Overview and Summary
The case of Forbes & Bream involved the appellant, Forbes, appealing against a decision made by the Federal Magistrate under the Child Support (Assessment) Act 1989 (Cth). The dispute centred on the Federal Magistrate's dismissal of Forbes' application for a departure from an administrative assessment of child support. Forbes argued that the Federal Magistrate had erred in law by applying section 117(7B) of the Act. The court was tasked with determining whether there was a substantial prospect of success in Forbes' appeal and whether the Federal Magistrate had indeed made an error of law.
The legal issue before the court was whether the Federal Magistrate had correctly applied the Child Support (Assessment) Act 1989 (Cth) in dismissing Forbes' application for a departure from an administrative assessment of child support. Specifically, the court had to examine if there was an error in the application of section 117(7B) of the Act. Additionally, the court considered the procedural matter of whether it should order a transcript of the proceedings to be provided to Forbes at the Court's expense, given his claim of financial inability to obtain it himself.
The court found that the Federal Magistrate had correctly applied the legislation and that there was no error of law in the decision. Consequently, the ground of appeal asserting an error of law was deemed to have no merit. Regarding the request for a transcript, the court exercised its discretion and determined that it was not an appropriate case to provide the transcript at the Court's expense, particularly given the Federal Magistrate's finding that Forbes had capital means and earning capacity. Therefore, the appeal was dismissed, and leave to appeal was refused.
No further orders were made by the court beyond the dismissal of the appeal and the refusal of leave to appeal.