J & F - [2002] FamCA 1067

[2002] FamCA 1067

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA Appeal No SA76 of 2002
AT MELBOURNE File No (P)MLM2799 of 2002

BETWEEN:

J
Appellant Father
- and -

F
Respondent Mother

CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  THE HONOURABLE JUSTICE KAY
DATE OF HEARING:                 8 November 2002
DATE OF JUDGMENT:             8 November 2002

APPEARANCES: The appellant in person.

The respondent in person

Mr Combes of Counsel, instructed by, Heneghan McLean, Solicitors, DX 30216, Richmond appeared on behalf of the Child Representative.

CHILD SUPPORT – Application for departure from assessment
CHILDREN - Contact - Best interests

The parties, who had never married, had an 18-month-old child who lived with the wife.

Hartnett FM made orders for contact with the father, and refused to deal with his application for departure from a child support assessment saying that the father should first seek administrative review of the assessment.

The father appealed. In relation to the child support matter, he relied on a form provided by the Child Support Agency which suggested that he had the right to have the matter heard together with the contact matters.

In relation to contact, he sought the reinstatement of an arrangement whereby he collected the child for midweek contact from the maternal grandmother’s house rather than the mother’s house. He also sought the extension of his midweek contact from 7pm until 7.15 pm, and of his weekend contact from every second weekend to every weekend.

Held: allowing the appeal in part and re-exercising the discretion

While there might be some question as to whether the learned Magistrate had applied the correct test in relation to the Form 63, ie whether it was in the interests of the parties to hear the application at the same time as she heard the contact application, as there were no longer any proceedings pending there was no remedy available to the father.

As no one had requested that the learned Magistrate vary the contact orders so that the child be collected from the maternal grandmother’s house rather than the mother’s house, and as the mother did not object to it being reinstated, it was appropriate to do so.

Otherwise, the contact orders were within discretion and no error was shown in the process followed.

APPEAL ALLOWED IN PART AND DISCRETION RE-EXERCISED
NO ORDER AS TO COSTS

This is an appeal against a series of orders made by Hartnett FM on 23 August 2002. The appeal focuses on three areas of the orders made.

·     The refusal by the Magistrate to hear an application for a departure order that had been brought by the father.
·     Contact.
·     Costs ordered by the Magistrate in respect of two sets of reserved costs.

The parties who, have never married, are the parents of X born in 2001. At the time of the hearing before the Magistrate X was 18 months of age.

The parties have had serious differences of opinion concerning the best interests of that child from the time…

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.

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Details

Case: [2002] FamCA 1067
Decision Date: 8 November 2002

CaseChat Overview and Summary

The matter of *J & F* concerned an appeal to the Supreme Court of Tasmania, with Justice Kay presiding. The appeal arose from a dispute regarding child support assessments and contact arrangements for children. The specific nature of the dispute involved an application to depart from an existing child support assessment, alongside issues concerning the children's best interests in relation to contact.

The central legal issues before the Court were twofold. Firstly, the Court was required to determine whether the circumstances warranted a departure from the child support assessment. Secondly, and intrinsically linked, the Court had to consider the paramount principle of the children's best interests in the context of determining appropriate contact arrangements.

Justice Kay allowed the appeal in part, indicating that the original decision was not entirely upheld. The Court then re-exercised its discretion in relation to the matters before it. No order was made as to costs.

Orders