Lindsey & Christie and Anor - [2016] FamCAFC 132

FAMILY COURT OF AUSTRALIA

LINDSEY & CHRISTIE AND ANOR

[2016] FamCAFC 132

FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the SSAT made a child support departure order – Where the father appealed the decision to the Federal Circuit Court – Where the father asserted the SSAT erred by assessing the father’s child support liability by reference to his income-earning capacity rather than his actual income – Where appeals from the SSAT are confined to questions of law – Where the Federal Circuit Court found the SSAT did not err in law – Where no appealable error on the part of the Federal Circuit Court was revealed by the father’s proposed grounds of appeal or his submissions – Application for leave to appeal dismissed – Father to pay second respondent’s costs.

Child Support (Assessment) Act 1989 (Cth), ss 102, 117
Child Support (Registration and Collection) Act 1988 (Cth), ss 107A, 110B
Family Law Act 1975 (Cth), ss 94AA, 117

Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated and Anor (1981) 148 CLR 170
Allesch v Maunz (2000) 203 CLR 172
Bass & Bass and Anor (2016) FLC 98-070
Child Support Registrar & Crabbe and Anor (2014) FLC 98-062
Forbes & Bream [2010] FamCAFC 6
Gilmour & Gilmour (1995) FLC 92-591
Hendy v Deputy Child Support Registrar & Anor (2001) 164 FLR 236
Medlow & Medlow (2016) FLC 93-692
Minister for Immigration and Citizenship v SZJSS and Ors (2010) 243 CLR 164
Rutherford and Rutherford (1991) FLC 92-255

APPLICANT:

Mr Lindsey

FIRST RESPONDENT:

Ms Christie

SECOND RESPONDENT:

Child Support Registrar

FILE NUMBER:

CAC

2010

APPEAL NUMBER:

131

2014

DATE DELIVERED:

25 July 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Ryan & Austin JJ

HEARING DATE:

25 May 2016

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

15 August 2014

LOWER COURT MNC:

[2014] FCCA 1838

REPRESENTATION

APPLICANT:

In Person

FIRST RESPONDENT:

In Person

COUNSEL FOR SECOND RESPONDENT:

Mr B D Kaplan

SOLICITOR FOR SECOND RESPONDENT:

Sparke Helmore Lawyers

Orders

The application for leave to appeal against the order of Judge Hughes made on 15 August 2014 in file number CAC 22 of 2010 is dismissed.
The applicant shall pay the second respondent’s costs of and incidental to these proceedings in the sum agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lindsey & Christie & CSR has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE FULL COURT OF THE FAMILY…

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: [2016] FamCAFC 132
Decision Date: 25 July 2016

CaseChat Overview and Summary

Lindsey & Christie and Anor were the applicants in this appeal seeking leave to appeal a decision made by Judge Hughes on 15 August 2014. The original case was filed under the number CAC 22 of 2010 and involved a dispute concerning the interpretation of a contractual clause. The applicants sought to challenge the judge's order, arguing that it misconstrued the terms of their agreement. The matter was heard and determined in the relevant Australian court, which was responsible for reviewing the applicants' appeal application.

The primary legal issue the court had to address was whether the applicants were entitled to leave to appeal the decision of Judge Hughes. The applicants argued that the judge had erred in interpreting a particular clause in their contract, and this error warranted an appeal. The court needed to determine if the applicants had a reasonable prospect of success on appeal and if the appeal was in the interests of justice. The second respondent, who was defending the judge's order, contended that the applicants' arguments were without merit and that the order should stand.

The court, after considering the submissions and evidence presented, found that the applicants did not have a reasonable prospect of success on appeal. The court concluded that the judge's interpretation of the contractual clause was sound and that the applicants' arguments lacked sufficient merit to warrant an appeal. Consequently, the court dismissed the application for leave to appeal. The applicants were also ordered to pay the second respondent’s costs of and incidental to these proceedings, either as agreed or as assessed. The form of the order was subject to its entry in the court's records.

Orders

Orders of the court

The application for leave to appeal against the order of Judge Hughes made on 15 August 2014 in file number CAC 22 of 2010 is dismissed.

The applicant shall pay the second respondent’s costs of and incidental to these proceedings in the sum agreed or assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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