LIVINGSTON & LIVINGSTON - [2015] FCCA 1171

FEDERAL CIRCUIT COURT OF AUSTRALIA

LIVINGSTON & LIVINGSTON

[2015] FCCA 1171

Catchwords:
FAMILY LAW – Interim maintenance – stay of child support enforcement when no child support application is before the court.

PRACTICE AND PROCEDURE – Application to adduce further evidence – part-heard hearing.

Legislation:

Family Law Act 1975

Allesch and Maunz (2000) 204 CLR 172
Baghti & Baghti and Ors (No.2) [2014] FamCAFC 204
Jackson & Shea [2013] FamCA 692
Smith v New South Wales Bar Association (No.2) (1992) 176 CLR 256
Urban Transport Authority (NSW) v NWEISER (1992) 28 NSWLR 471
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 5 August 2009 C1/2009

Applicant:

MR LIVINGSTON

Respondent:

MS LIVINGSTON

File Number:

DNC 187 of 2013

Judgment of:

Judge Harland

Hearing date:

18 February 2015

Date of Last Submission:

7 April 2015

Delivered at:

Melbourne

Delivered on:

6 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr Harriss

Solicitors for the Applicant:

Mills Oakley Lawyers Pty Ltd

Counsel for the Respondent:

Ms Farmer

Solicitors for the Respondent:

Withnalls Lawyers

ORDERS

That orders 5 to 8 of the application in case filed on 28 January be dismissed.
That the issue of costs with respect to the application in a case be reserved.
That the orders made on 20 November 2014 be discharged.
That the matter be listed for the final day of hearing on 15 May 2015.
That the parties file a joint balance sheet and written submissions with respect to the property issues by 4.00pm on 12 May 2015.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 187 of 2013

MR LIVINGSTON

Applicant

And

MS LIVINGSTON

Respondent

REASONS FOR JUDGMENT

Introduction

The husband filed an application in the case on 28 January 2015. The matter was listed as the same time as the final day of the part heard trial. The trial could not continue that day because the wife was in hospital, having fallen ill with pancreatitis.
I expressed concerns about aspects of the husband’s application in particular with respect to maintenance and child support. I raised my concern that the husband was seeking to effectively re-open his case. On that day I directed the parties file written submissions with respect to the concerns I raised. I indicated that I would then deal with the matter in Chambers.
The parties sought to have urgent consent orders made in Chambers dealing with the sale of properties and the proceeds of sale which included partial property settlement. Those orders were made on 25 March 2015. That disposed of part of the application in a case and the response to the application in a case.
The husband was several weeks late in filing his written submissions. Unfortunately the submissions do not address the issue of the principles which apply when a party seeks to reopen the case, which is in effect what…

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: [2015] FCCA 1171
Decision Date: 6 May 2015

CaseChat Overview and Summary

In the matter of *Livingston & Livingston*, heard before Judge Harland, the dispute concerned interim maintenance and the enforcement of child support obligations in circumstances where no formal child support application was before the court. The proceedings also involved an application to adduce further evidence during a part-heard hearing.

The central legal issues before the court were whether it had the power to make orders for interim maintenance in the absence of a pending child support application, and consequently, whether it could stay the enforcement of child support payments under such conditions. The court was also required to consider the admissibility of further evidence presented during the hearing.

Judge Harland determined that the court lacked the jurisdiction to grant interim maintenance or stay child support enforcement when no child support application was formally before it. The court reasoned that its powers in this regard were contingent upon the existence of such an application. Consequently, the application to adduce further evidence was dismissed as it related to issues outside the court's jurisdiction in this context. The court discharged previous orders made on 20 November 2014, dismissed specific orders from an application filed on 28 January, reserved costs, and listed the matter for a final hearing on 15 May 2015, directing the parties to file a joint balance sheet and written submissions on property issues by 12 May 2015.

Orders

Orders of the court

That orders 5 to 8 of the application in case filed on 28 January be dismissed.

That the issue of costs with respect to the application in a case be reserved.

That the orders made on 20 November 2014 be discharged.

That the matter be listed for the final day of hearing on 15 May 2015.

That the parties file a joint balance sheet and written submissions with respect to the property issues by 4.00pm on 12 May 2015.

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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