Gilbert and Gilbert - [2017] FCCA 506

FEDERAL CIRCUIT COURT OF AUSTRALIA

GILBERT & GILBERT

[2017] FCCA 506

Catchwords:
FAMILY LAW – Child Support – Application by father for a substitution order under section 123 of the Child Support (Assessment) Act 1989 and declarations – application summarily dismissed as without merit and an abuse of the Court’s processes.

Legislation:

Family Law Act 1975, s.119

Child Support (Assessment) Act 1989, ss.3, 4, 5, 7B, 23, 25, 25A, 98, 98W, 98X, 99, 100, 33, 65D, 66, 66F(1)(b), 66P, 66Q, 67ZC, 72, 111, 112, 113B, 116, 117, 118, 120, 123, 124, 125, 139, 141 and 143
Child Support (Registration and Collection) Act 1988, ss.71, 71B, 105, 11A, 111B, 111C and 113A

Cases cited:

Agar & Hyde v Batistatos & Roads & Traffic Authority of New South Wales [2006] HCA 27

Dey & Victorian Railways [1949] HCA 1

Fancourt & Mercantile Credits Ltd [1983] HCA 25

General Steel Industries Inc v Commissioner of Railways [1964] HCA 69

Lindon & The Commonwealth (No.2) [1996] HCA 14

Pullman & Pullman [2013] FCCA 31

Spencer v The Commonwealth of Australia [2010] HCA 28

Szepietowski (1991) FLC 92-247

Applicant:

MR GILBERT

Respondent:

MS GILBERT

File Number:

SYC 4675 of 2016

Judgment of:

Judge Henderson

Hearing date:

18 October 2016

Date of Last Submission:

18 October 2016

Delivered at:

Sydney

Delivered on:

21 March 2017

REPRESENTATION

Counsel for the Applicant:

Mr Bacon

The Respondent in person

Counsel for the Respondent:

Ms Rayment

ORDERS

The application filed by the father on 26 July 2016 is summarily dismissed.
Any costs application may be listed by contacting my Associate in chambers.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC4675 of 2016

MR GILBERT

Applicant

And

MS GILBERT

Respondent

REASONS FOR JUDGMENT

The matter of Gilbert is an application by a father to break up his current assessed child support payments of $424 per week paid directly to the mother to $200 towards 3^rd party payments and $242 directly to the mother. The husband seeks a substitution order under section 123 of the Act to bring into effect his proposed order.
In order to achieve this goal the father has set out a circuitous path through the relevant child support legislation stating in an annexure to his affidavit that the application is made under sections 3, 4, 5, 7B, 23, 25, 25A, 33, 98, 98W, 98X, 99, 100, 65D, 66, 66F(1)b, 66P, 66Q, 67ZC, 72, 111, 112, 113B, 116, 117, 118, 120, 123, 124, 125, 139, 141, and 143 of the Child Support (Assessment) Act 1989 and sections 71, 71B, 105, 11A, 111B, 111C, and 113A of the Child Support (Registration and Collection) Act 1988 and section 119 of the Family Law Act 1975.
The father does not by way of application seek a departure of child support under 117(2) of the Act[1] but merely makes mention of this in…

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 Gilbert and Gilbert

Details

AGLC: Gilbert and Gilbert [2017] FCCA 506
Case: [2017] FCCA 506
Decision Date: 21 March 2017

CaseChat Overview and Summary

In *Gilbert and Gilbert*, heard by Judge Henderson, the father applied to the court on 26 July 2016. The nature of the dispute and the specific relief sought by the father are not detailed in the provided text.

The central legal issue before the court was whether the father's application warranted summary dismissal. This required the court to assess the merits of the application to determine if it was so lacking in substance or legal basis that it should be disposed of without a full hearing.

Judge Henderson summarily dismissed the father's application. The reasoning behind this decision, and the specific legal principles applied to reach this conclusion, are not elaborated upon in the provided extract. The court made no specific orders regarding costs at this stage, instead directing that any application for costs could be listed separately.

Orders

Orders of the court

The application filed by the father on 26 July 2016 is summarily dismissed.

Any costs application may be listed by contacting my Associate in chambers.

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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