Johnson & Haddix & Anor - [2011] FMCAfam 880

FEDERAL MAGISTRATES COURT OF AUSTRALIA

JOHNSON & HADDIX & ANOR

[2011] FMCAfam 880

CHILD SUPPORT – Application for leave to make a retrospective application.

PRACTICE & PROCEDURE – Summary Dismissal – application for summary dismissal – whether application frivolous, vexatious or an abuse of process – whether no reasonable prospects of success.

PRACTICE & PROCEDURE – Rule 10.12 of the Family Law Rules 2004 does not apply in the Federal Magistrates Court – Rule 13.10 of the Federal Magistrates Court Rules 2001 applies to disposal by summary dismissal in the Federal Magistrates Court.

Child Support (Assessment) Act 1989 (Cth), ss.98S, 111, 117, 118
Child Support (Registration and Collection) Act 1988 (Cth), ss.111C, 111E
Federal Magistrates Act 1999 (Cth), s.17A
Family Law Rules 2004, r.10.12
Federal Magistrates Court Rules 2001, r.13.10

Lindon v Commonwealth of Australia (No.2) (1996) 136 ALR 251
Munnings v Australian Government Solicitor (1994) 68 ALJR 196
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Bigg v Suzi (1998) FLC 92-799
Gitane and Velacruz (2007) FLC 309
Jacobs & Vale [2008] FMCAfam 641
Vivid Entertainment LLC & Ors v Digital Sinema Australia Pty Ltd & Ors [2007] FMCA 157

Applicant:

MS JOHNSON

First Respondent:

MR HADDIX

Second Respondent:

CHILD SUPPORT AGENCY

File Number:

SYC 5664 of 2010

Judgment of:

Scarlett FM

Hearing date:

1 August 2011

Date of Last Submission:

12 August 2011

Delivered at:

Sydney

Delivered on:

20 September 2011

REPRESENTATION

Solicitors for the Applicant:

Watkins Tapsell

Counsel for the First Respondents:

Mr Jackson

Solicitors for the First Respondents:

McNeilly Lawyers

Solicitors for the Second Respondents:

Australian Government Solicitor

ORDERS

The Application in a Case filed by the Respondent on 14 April 2011 seeking summary dismissal of the substantive Application is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 5664 of 2010

MS JOHNSON

Applicant

And

MR HADDIX

First Respondent

CHILD SUPPORT AGENCY

Second Respondent

REASONS FOR JUDGMENT

Application

The Respondent, by an Application in a Case filed on 14 April 2011, seeks an order for summary dismissal of the Applicant’s Application on the grounds that it is frivolous, vexatious or an abuse of process.
Erroneously, the Respondent seeks to rely on Rule 10.12 of the Family Law Rules 2001, which does not apply in the Federal Magistrates Court. Rule 13.10 of the Federal Magistrates Court Rules 2001 applies to disposal by summary dismissal in this Court.
The Applicant, in a Response to an Application in a Case filed 27 July 2011, opposes the Application for summary dismissal and seeks that it should be dismissed with costs.
The Application for Summary Dismissal is misconceived to the extent that it seeks summary dismissal of the Applicant’s Initiating Application filed on 8 September 2010. The Applicant filed an Amended Application on 17 December 2010 and is seeking to proceed on that Application.
The Amended Application is…

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 Johnson & Haddix & Anor

Details

AGLC: Johnson & Haddix & Anor [2011] FMCAfam 880
Case: [2011] FMCAfam 880
Decision Date: 20 September 2011

CaseChat Overview and Summary

The case of Johnson & Haddix & Anor involves an application for leave to make a retrospective application for child support. The application was brought before the Federal Magistrates Court, with the Applicant seeking leave to file a retrospective application under the Family Law Act 1975. The Respondent opposed the application and sought its summary dismissal, arguing that it was frivolous, vexatious, or an abuse of process, and lacked reasonable prospects of success.

The court was required to determine whether the application for summary dismissal was appropriate, and whether the substantive application had reasonable prospects of success. The legal issues centred on the application of relevant rules and the criteria for summary dismissal. The court considered Rule 13.10 of the Federal Magistrates Court Rules 2001, which governs the disposal by summary dismissal in the Federal Magistrates Court, as opposed to Rule 10.12 of the Family Law Rules 2004, which does not apply in the Federal Magistrates Court.

The court found that the substantive application did not meet the criteria for summary dismissal. It held that the application for leave to make a retrospective application for child support was not frivolous, vexatious, or an abuse of process, and had reasonable prospects of success. The court dismissed the Respondent's application for summary dismissal, allowing the substantive application to proceed.

The court's decision was that the application for summary dismissal was dismissed, and the substantive application for leave to make a retrospective application for child support was permitted to proceed. This decision ensures that the case will be evaluated on its merits, allowing the Applicant an opportunity to present their case for retrospective child support.

Orders

Orders of the court

The Application in a Case filed by the Respondent on 14 April 2011 seeking summary dismissal of the substantive Application is dismissed.

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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