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LASKY & GANTOS

LASKY & GANTOS

Case [2011] FMCAfam 867 2 September 2011

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

LASKY & GANTOS

[2011] FMCAfam 867

CHILD SUPPORT – Application for departure from assessment – jurisdiction of court – no finding under s.116(1)(b) available.

FAMILY LAW – Practice & Procedure – application by applicant for enforcement of consent agreement – application by respondent seeking previous consent orders be discharged and/or stayed – whether an extension of time should be granted – factors to be considered – no basis to justify extension of time for review of Registrar’s decision.

FAMILY LAW – Practice & Procedure – application by respondent seeking that the previous consent orders be set aside pursuant to s.79A – consideration of terms of agreement – consideration of whether purpose and effect of agreement was to defraud revenue authorities – no basis available to set aside the consider order pursuant to s.79A.

Child Support (Assessment) Act 1989 (Cth), s.116(1)(b)
Commonwealth Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth), ss.74(1), 75(2), 79(4), s.83
Federal Magistrates Court Act (Cth), s.17A

Family Law Rules 1984 (Cth)
Family Law Rules 2004 (Cth)

Australian Broadcasting Commission v Australasian Performing Rights Association (1973) 129 CLR 99
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Greetham & Greetham [2010] FamCA 246
Harris v Caladine (1990-91) 99 ALR 193
Holdcroft v Market Garden Produce Pty Ltd [2001] 2 Qd R 381
Hoyts Pty Ltd v Spencer (1919) 27 CLR 132
LG Thorne & Co Pty Ltd v Thomas Borthwick & Sons (A’asia) Ltd (1956) SR (NSW) 81
McGuiness & Cowie [2002] FamCA 461
MWJ v R (2005) 222 ALR 436
National Mutual Life Association of Australasia v S.H. Hallas Pty Ltd [1992] 2 Qd R 531
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
R v MAP [2006] QCA 220
Re Jensen; Ex parte Jensen (1982) 45 ALR 574
Reid (1999) FLC 98-007, [1999] FamCA 699
Sanders (1993) FLC 92-426
White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511
Yaroomba Beach Development Co Pty Ltd v Coeur de Lion Investments Pty Ltd (1989) 18 NSWLR 398

Applicant:

MS LASKY

Respondent:

MR GANTOS

File Number:

BRC 9586 of 2008

Judgment of:

Burnett FM

Hearing dates:

7 December 2009, 8 December 2009 and 12 February 2010

Date of Last Submission:

12 February 2010

Delivered at:

Brisbane

Delivered on:

2 September 2011

REPRESENTATION

Counsel for the Applicant:

Mr C. Forrest

Solicitors for the Applicant:

Jones Mitchell Lawyers

Counsel for the Respondent:

Mr P. Hackett

Solicitors for the Respondent:

Evans & Company Family lawyers

ORDERS

Direct the parties submit a minute of order giving effect to the terms of the judgment on or before 4.00pm on 16 September 2011.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 9586 of 2008

MS LASKY

Applicant

And

MR GANTOS

Respondent

REASONS FOR JUDGMENT

Following a relationship of nine years…

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 LASKY & GANTOS

Details

AGLC: LASKY & GANTOS [2011] FMCAfam 867
Case: [2011] FMCAfam 867
Decision Date: 2 September 2011

CaseChat Overview and Summary

In the Family Court of Australia, the case of Lasky & Gantzos involved a dispute regarding child support and the enforcement of a consent agreement. The father, Lasky, applied for a departure from the assessment of child support, while the mother, Gantzos, sought to enforce a consent agreement or discharge and stay previous consent orders. Additionally, the father applied for an extension of time to review a Registrar’s decision, and the mother sought to set aside the consent order under section 79A of the Family Law Act.

The court considered several legal issues, including the jurisdiction of the court to make a finding under section 116(1)(b) of the Family Law Act, the criteria for granting an extension of time to review the Registrar’s decision, and whether the purpose and effect of the consent agreement was to defraud revenue authorities, warranting the setting aside of the order under section 79A. The court had to assess the factors relevant to granting an extension of time, such as the reasonableness of the delay and the prejudice to the other party.

The court found that it did not have jurisdiction to make a finding under section 116(1)(b) and that there was no basis to justify an extension of time for reviewing the Registrar’s decision. Furthermore, the court determined that there was no evidence to support the claim that the consent agreement was intended to defraud revenue authorities, and thus, the consent order could not be set aside under section 79A. The court directed the parties to submit a minute of order giving effect to the terms of the judgment by 4.00pm on 16 September 2011.

Orders

Orders of the court

Direct the parties submit a minute of order giving effect to the terms of the judgment on or before 4.00pm on 16 September 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

LASKY & GANTOS [2011] FMCAfam 867

Most Recent Citation

Gantos and Lasky (Costs Certificates) [2013] FamCAFC 85

Cases Citing This Decision

Gantos and Lasky (Costs Certificates) [2013] FamCAFC 85
Citation 1

…[2011] FMCAfam 867…

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Cases Cited

Holland v Holland [2017] NZHC 1037
Citation 1 (Para 2)

…ra); Public Trustee (as executor of the estate of Gilbert) v Gilbert (supra)). Whilst cases such as Suiker (supra), Holland v Holland (1982) FLC 91-243 and Gebert v Gebert (1990) FLC 92-137 indicate that the words “miscarriage of justice” should not be construed narrowly and the phrase “integrity of the judicial process” s…
Greetham & Greetham [2010] FamCA 246
Citation 2 (Para 4)

…nces relevant to the consideration of the question of whether or not time ought to be extended was a subject for consideration in Greetham & Greetham [2010] FamCA 246 where a court was considering an application for extension of time to review a Registrar’s decision in respect of consent orders. In that case there…
White Industries Australia Ltd v Federal Commissioner of Taxation [2007] FCA 511
Citation 3 (Para 2)

…s justifying a summary dismissal of the claim being one with no reasonable prospects of success: White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511. In reaching this conclusion I am also mindful of the two principal issues raised by the respondent in argument and which are addressed below.…
R v MAP [2006] QCA 220
Citation 4 (Para 4)

…l negotiations which in the strict sense are irrelevant. [6] Browne v Dunn (1893) 6 R 67 [7] See MWJ v R (2005) 222 ALR 436, [38] – [40]; R v MAP [2006] QCA 220 [55].…
MWJ v The Queen [2005] HCA 74
Citation 5 (Para 4)

…been addressed generally to pre-contractual negotiations which in the strict sense are irrelevant. [6] Browne v Dunn (1893) 6 R 67 [7] See MWJ v R (2005) 222 ALR 436, [38] – [40]; R v MAP [2006] QCA 220 [55].…
McGuiness & Cowie [2002] FamCA 461
Citation 6 (Para 9)

…nces surrounding the introduction of those provisions to the Child Support (Assessment) Act and the purpose for their insertion. In McGuiness & Cowie [2002] FamCA 461 at [26] Kay J observed the intention of the enactment as explained by the explanatory memorandum as follows: “[26] The Child Support (Assessment) Act…
Reid v Reid [1999] FamCA 699
Citation 7

…s Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 R v MAP [2006] QCA 220 Re Jensen; Ex parte Jensen (1982) 45 ALR 574 Reid (1999) FLC 98-007, [1999] FamCA 699 Sanders (1993) FLC 92-426 White Industries Aust Ltd v Commissioner of Taxation [2007] FCA 511 Yaroomba Beach Development Co Pty Ltd v Coeur de Lion Inv…
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCATrans 297
Citation 8 (Para 7)

…tions of fraud and matters involving potential criminality are involved. As the High Court stated in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449: “The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities.…
Harris v Caladine [1991] HCA 9
Citation 9 (Para 2)

…ties in property they may only be set aside and/or varied in terms and circumstances permitted by the Act or its rules; Harris v Caladine (1990-91) 99 ALR 193.…
Gallo v Dawson [1990] HCA 30
Citation 10 (Para 4)

…ers (commencing at para [48]) his Honour noted: “[49] The principles with respect to the grant of an extension of time, are well settled (see Gallo v Dawson (1990) 93 ALR 479, In the marriage of McMahon (1976) FLC 90-038 and In the marriage of Tormsen (1993) FLC 93-392). Gallo v Dawson is, of course, a High Court decisi…
Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24
Citation 11 (Para 8)

…ntextual background comprised of facts notorious to both parties at the time of agreement; Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 at 352.…
Australian Broadcasting Commission v Australasian Performing Right Association Ltd [1973] HCA 36
Citation 12 (Para 8)

…r of fundamental principle an agreement must be construed as a whole; Australian Broadcasting Commission v Australasian Performing Rights Association (1973) 129 CLR 99. It is also fundamental that an agreement will be construed against its objective contextual background comprised of facts notorious to both parties…
Browne v Dunn 113 ER 1206
Citation 13 (Para 4)

…ination of the respondent it appears to have been addressed generally to pre-contractual negotiations which in the strict sense are irrelevant. [6] Browne v Dunn (1893) 6 R 67 [7] See MWJ v R (2005) 222 ALR 436, [38] – [40]; R v MAP [2006] QCA 220 [55].…

Legislation Cited

Family Law Act 1975 (Cth) 74(1), 75(2), 79(4)
4 mentions (from Para 4)
Child Support (Assessment) Act 1989 (Cth) 116(1)(b)
2 mentions (from Para 5)
Commonwealth Evidence Act 1995 (Cth)
1 mention (from Para 7)
Family Law Rules 1984 (Cth)
1 mention (from Para 2)
Family Law Rules 2004 (Cth)
1 mention