I v Y - [2017] WASCA 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: I -v- Y [2017] WASCA 75

CORAM: MURPHY JA
MITCHELL JA

HEARD: 13 APRIL 2017

DELIVERED : 13 APRIL 2017

PUBLISHED : 18 APRIL 2017

FILE NO/S: CACV 74 of 2016

BETWEEN: I
Appellant
AND
Y
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE KAESER
File No  :PTW 230 of 2010

Catchwords:

Family law - Child support payments - Appeal from determination that the appellant was the father of the respondent's child - Application for an extension of time to appeal

Courts and Tribunals - Jurisdiction of courts - Whether Court of Appeal has jurisdiction in the appeal - Whether transfer to the Family Court of Australia is appropriate

Legislation:

Child Support Assessment Act 1989 (Cth), s 99, s 102A, s 106A
Family Law Rules 2004 (Cth), r 1.14, r 22.03
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4, s 5, s 7

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Allan v Allan [2014] FamCAFC 162; [2014] FLC 93‑606
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101
DKG v SJB [2016] WASCA 149
Gallo v Dawson (1990) 64 ALJR 458
OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95
Taylor v Taylor (1979) 143 CLR 1
REASONS OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

Background

On 18 October 2010, the Magistrates Court of Western Australia, constituted by a family law magistrate, made an order under s 106A(5)(a) of the Child Support (Assessment) Act 1989 (Cth) (Act) (Child Support Act). The effect of that order was that the respondent was entitled to an administrative assessment of child support for a child, payable by the appellant, because the appellant was a parent of the child. Section 106A provides for a court having jurisdiction under the Act to make such a declaration where the Child Support Registrar refuses to accept an application for administrative assessment of child support because he or she is not satisfied that the person who was to be assessed in respect of the costs of the child is a parent of the child. Subject to certain conditions, the Magistrates Court had federal jurisdiction to make such a declaration under s 99(2) of the Child Support Act.
The appellant, who was not present at court on 18 October 2010, claims that he was not aware of the hearing at the time the declaration was made. The appellant has deposed that he only became aware of the declaration after he received a letter from the Child Support Agency in April 2011, notifying him of outstanding child support payments. The appellant says that he unsuccessfully tried to…

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 I v Y

Details

AGLC: I v Y [2017] WASCA 75
Case: [2017] WASCA 75
Decision Date: 18 APRIL 2017

CaseChat Overview and Summary

In the appeal before the court, I contested a Family Court of Australia decision that established I as the father of Y's child. The primary issue was whether the Court of Appeal had jurisdiction over the appeal or if the matter should be transferred to the Family Court of Australia. The appeal was brought after the Family Court of Australia denied a request for an extension of time to contest the paternity finding. I argued that the Court of Appeal should hear the appeal directly, while Y contended that the matter should be transferred to the Family Court for reconsideration of the time extension application.

The Court of Appeal examined the jurisdictional framework governing appeals in family law matters and the appropriateness of transferring the appeal to the Family Court. The court considered whether the matter fell within its jurisdiction to hear appeals from the Family Court or if the matter should be returned to the Family Court for consideration of the time extension application. The court noted that the issue of jurisdiction was a threshold matter that needed resolution before addressing the merits of the appeal.

In determining the appropriate course of action, the Court of Appeal concluded that it did not have jurisdiction to hear the appeal directly. Instead, the court found that the matter should be transferred to the Family Court of Australia for reconsideration of the application for an extension of time to appeal. The court reasoned that the Family Court was the appropriate forum to address the procedural issue of the time extension, and the Court of Appeal was not empowered to review such matters. Consequently, the appeal was dismissed, and the matter was transferred to the Family Court for further consideration.

Orders