Kadis & Elmore - [2023] FedCFamC2F 479

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kadis & Elmore [2023] FedCFamC2F 479

File number(s): MLC 3484 2021

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 28 April 2023

Catchwords: FAMILY LAW – application for enforcement of child support debt – where the mother sought a superannuation splitting order to pay child support debt – where the mother’s application for a superannuation splitting order was abandoned – application for leave to make an application for departure from the administrative assessment of child support – where parties did not have information as to how the debt accumulated at trial – where the senior judicial registrar did not have powers to grant leave for an application for a departure order – leave not granted.

Legislation:
Child Support (Registration and Collection) Act 1988 (Cth), ss 113A, 116(2)

Child Support Assessment Act 1989 (Cth), ss 111, 112, 116, 118

Cases cited: Michar & Baileford [2019] FamCAFC 60

Division: Division 2 Family Law

Number of paragraphs: 76

Date of last submission/s: 18 April 2022

Date of hearing: 7 March 2022

Place: Melbourne

Solicitor for the Applicant: Litigant in Person

Counsel for the Respondent: Mr A. Combes

Solicitor for the Respondent: RM Commercial & Family Lawyers
ORDERS

MLC 3484 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS KADIS

Applicant

AND:
MR ELMORE

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

28 April 2023

THE COURT ORDERS THAT:
1.The Father’s application for leave for the Court to hear an application for departure from administrative assessment of child support from 1 January 2016 to 31 December 2020, and his application that the Mother’s application for enforcement be stayed as contained in Exhibit H1 dated 7 March 2022, be dismissed.
2.The Mother’s application for enforcement be fixed for Mention on 24 July 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kadis & Elmore has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

The question I must determine in this matter is whether to grant leave to the Respondent, Mr Elmore (‘the Father’) to file an application out of time for a departure order from the administrative assessment or determination of child support. The Applicant, Ms Kadis (‘the Mother’), opposes such application and seeks to proceed with her application…

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: [2023] FedCFamC2F 479
Decision Date

CaseChat Overview and Summary

Kadis & Elmore was a matter before the Federal Circuit and Family Court of Australia, Division 2, where the key issue was whether leave should be granted to the father, Mr Elmore, to make an application out of time for a departure order from the administrative assessment or determination of child support. The mother, Ms Kadis, opposed the application and sought to proceed with her application for enforcement of a child support debt. The court had to consider the legal issues surrounding the father's application for leave, including whether the delay in making the application was justified and whether the father's failure to provide relevant information at the outset warranted the dismissal of the application.

The court found that the father's application for leave was not satisfactorily explained, and the delay in making the application was the responsibility of the father and not the mother. The circumstances of the father having thrice been involved in reviews of the underlying decisions meant that the father's complaints had been ventilated or he had the opportunity to ventilate the same in those three decisions. In those circumstances, it was not appropriate that his 2021 application for a leave to bring an out of time application to depart from assessments dating back to 2016 be granted. Therefore, the father's application for leave to make an application for a departure order and his application to stay the enforcement proceedings were dismissed. The mother's enforcement application was listed for mention.

Orders