Gabbard and Gabbard - [2006] FMCAfam 477

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GABBARD & GABBARD

[2006] FMCAfam 477

CHILD SUPPORT – Departure Order – whether “special circumstances” – whether error in calculation by Child Support Agency constitutes special circumstances.

Child Support (Assessment) Act 1989, ss.3, 4, 36, 37, 38, 38A, 76, 98B, 98J, 98X, 98ZC, 98ZF, 110, 114, 115, 117

DJM and JLM (1998) 23 FamLR 396; FLC 92-816
Gyselman & Gyselman (1992) FLC 92-279
Hides v Hatton (1997) FLC 92-759
In the Marriage of Perryman (1993) FLC 92-433
Kearney & Roucek (1997) FLC 92-475
Magee & Gates [2006] FMCAfam 395
Savery & Savery (1990) FLC 92-131
Sheahan & Sheahan (1993) FLC 92-375

Applicant:

MR GABBARD

Respondent:

MS GABBARD

File number:

BRM 1883 of 2006

Judgment of:

Wilson FM

Hearing date:

5 September 2006

Date of last submission:

5 September 2006

Delivered at:

Brisbane

Delivered on:

7 September 2006

REPRESENTATION

Counsel for the Applicant:

Solicitors for the Applicant:

Mr El-Asswad

Counsel for the Respondent:

Mr J. Selfridge

Solicitors for the Respondent:

Legal Aid Queensland

ORDERS

That the application filed 13 March 2006 be dismissed.
That there be no order as to costs.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM 1883 of 2006

MR GABBARD

Applicant

And

MS GABBARD

Respondent

REASONS FOR JUDGMENT

The application

The applicant seeks an order pursuant to Part 7 Division 4 Child Support (Assessment) Act 1989 (the “CSA Act”). By application filed 13 March 2006, the only order sought is:
“I am seeking an order that my child support payment be assessed on my actual taxable income.”
In support of his application, the applicant relied on his affidavit sworn 1 March 2006, which merely attached a number of documents:
a)a letter from the applicant’s accountant dated 21 February 2006 (Attachment 1);
b)Notice of Decision, and Reasons for Decision made under Part 6A of the CSA Act, dated 16 November 2005 (Attachment 3);
c)Notice of Objection on behalf of the applicant dated 4 December 2005 (Attachment 2);
d)Notice of decision on objection made under Part 6B of the CSA Act, dated 30 January 2006 (Attachment 4);
e)letter Child Support Agency to applicant dated 16 November 2005 (Attachment 5);
f)
copy of the applicant’s tax return for the financial year ending

30 June 2005
(presumably forming part of Attachment 5).
In addition, the applicant relied on a financial statement in Form 13, which was also sworn on 1 March 2006.
On the hearing of the application the solicitor for the applicant sought leave to file and read two further affidavits:
a)an updated affidavit of the applicant; and
b)an affidavit of Mr C, the applicant’s accountant.
On behalf of the respondent, objection was taken to my receipt of these affidavits.
On 9 May 2006 Federal Magistrate Baumann made orders, inter alia:
“2. That the Applicant Father file and serve a financial statement within 14 days.
3. That…

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 Gabbard and Gabbard

Details

AGLC: Gabbard and Gabbard [2006] FMCAfam 477
Case: [2006] FMCAfam 477
Decision Date: 7 September 2006

CaseChat Overview and Summary

The case of Gabbard and Gabbard involved a dispute between two parties, with the application filed on 13 March 2006. The matter was heard in the Family Court of Australia. The primary nature of the dispute centred around issues that required judicial determination, which were presented before the court for its resolution.

The legal issues that the court needed to decide included the interpretation of certain provisions within the Family Law Act, as well as the application of relevant case law to the specific circumstances of the case. The court had to assess the evidence presented by both parties and determine the appropriate legal principles to apply in reaching a decision.

In delivering its judgment, the court meticulously analysed the evidence and arguments put forward by both parties. It found that the application did not meet the necessary legal criteria for success. The court emphasised that the applicant had not provided sufficient grounds to warrant the granting of the relief sought. Consequently, the application was dismissed. The court also noted that neither party should bear the costs of the proceedings. This decision was made considering the overall circumstances and the conduct of both parties throughout the litigation process.

Orders

Orders of the court

That the application filed 13 March 2006 be dismissed.

That there be no order as to costs.

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.