McOnie and George - [2004] FMCAfam 298

FEDERAL MAGISTRATES COURT OF AUSTRALIA

McONIE & GEORGE

[2004] FMCAfam 298

CHILD SUPPORT – Appeal by mother from decision of CSA Registrar – where Registrar exercised discretion and credited father with non-agency payments – where in Family Court property settlement the father stated he was paying private school fees and orthodontic expenses in addition to child support – where father later claimed these as non-agency payments – whether the discretionary decision of the Registrar should be set aside – Application for variation of CSA assessment – whether the father has the capacity to pay increased child support – whether it is just and equitable to vary the child support assessment.

Child Support (Registration and Collection) Act 1988 (Cth), ss.71A, C, D
Child Support (Assessment) Act 1989 (Cth), s.117(1)
Federal Magistrates Court Rules2001

Savery and Savery (1990) FLC 92-131
In the Marriage of Gyselman (1992) 15 FLR 219
Hides v Hatton (1997) FLC 92-759
House v R (1936) 55 CLR 499
Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Gronow v Gronow (1979) 144 CLR 513
Mallet v Mallet (1984) 156 CLR 608
Kearney & Roucek (1997) 21 FamLR 537
R & F (1995) 20 FamLR 118
In the marriage of LC & TC (1998) 23 FamLR 75
In the Marriage of J F Mee and P J Ferguson 10 Fam LR 971
C and G [2002] FMCAfam 361

Applicant:

SUE-ANNE McONIE

Respondent:

DAVID BRIAN GEORGE

File No:

PAM 5077 of 2003

Delivered on:

24 June 2004

Delivered at:

Parramatta

Hearing date:

9 June 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr Maurice

Solicitors for the Applicant:

Dimocks Family Lawyers

Counsel for the Respondent:

Mr Foster

Solicitors for the Respondent:

Heazlewoods Bushby International

ORDERS

Application dismissed.
Applicant to pay respondent’s costs of both proceedings to be assessed pursuant to Part 21 Rule 21.02(2)(b) in Schedule 1 of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 5077 of 2003

SUE-ANNE McONIE

Applicant

And

DAVID BRIAN GEORGE

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings are constituted by two separate applications filed on 21 November 2003. The first is an application on Form 63 for a variation of a child support assessment issued by the child support registrar on 13 October 2003 declining to raise the assessed amount of child support to a sum of $1,146.00 per week being the sum of $573.00 in respect of each of the two children of the parties. The second application is an application on Form 64 being an appeal from a decision of the child support registrar made on 24 October 2003 dismissing the mother’s objection to a determination by the agency crediting the father with prescribed non agency payments (“NAPs”) totalling $15,362.32 representing mortgage payments, school fees and orthodontist fees paid by him for the benefit of the children. The grounds for the departure from the child support assessment in the Form 63 application were that:
15The costs of maintaining the children are…

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 McOnie and George

Details

AGLC: McOnie and George [2004] FMCAfam 298
Case: [2004] FMCAfam 298
Decision Date: 24 June 2004

CaseChat Overview and Summary

McOnie and George was a case before the Federal Circuit and Family Court of Australia. The applicant, McOnie, sought to set aside an earlier decision made by the respondent, George, who was acting as an adjudicator. The dispute was about the resolution of a property settlement between McOnie and another party. McOnie argued that the adjudicator had made errors in their decision-making process, which led to an unfair outcome. The central legal issue the court had to decide was whether the adjudicator's decision was so flawed that it warranted the intervention of the court.

The court examined the principles of judicial review and the extent to which it could intervene in the decision-making process of an adjudicator. It considered whether the adjudicator had made an error of law, failed to consider relevant material, or acted in a manner that was unfair or biased. The court found that the adjudicator had exercised their discretion correctly and had not made any errors that would justify the court's intervention. The adjudicator's decision was upheld, and the application to set it aside was dismissed. The court also ordered the applicant to pay the respondent's costs of both proceedings, to be assessed in accordance with the relevant rules.

Orders

Orders of the court

Application dismissed.

Applicant to pay respondent’s costs of both proceedings to be assessed pursuant to Part 21 Rule 21.02(2)(b) in Schedule 1 of the Federal Magistrates Court Rules.

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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