Moore and Moore - [2012] FMCAfam 577

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MOORE & MOORE

[2012] FMCAfam 577

CHILD SUPPORT – Leave sought to appeal an objection decision made in 2006 – leave sought to vary administrative assessments following changes in assessment decisions in 2008 and 2009 – consideration of factors relevant to a grant of leave – changes in child support legislation.

Child Support (Assessment) Act 1989, ss.110, 111, 112, 116, 118
Child Support Legislation Amendment (Reform of The Child Support Scheme--New Formula And Other Measures) Act 2006
Child Support (Registration and Collection) Act1988, ss.72C, 113A
Family Law Act 1975, s.60I
Federal Magistrates Court Rules 2001, regs.1.06, 3.05, 25A.04

Bagala & Bagala [2009] FMCAfam 953
FAI General Insurance Co Ltd v Southern Cross Exploration (1988) 165 CLR 268; (1988) 77 ALR 411
Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479
In the Marriage of Tormsen (1993) 18 Fam LR 232; (1993) FLC 92-392
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

Applicant:

MS MOORE

Respondent:

MR MOORE

File Number:

WOC 845 of 2009

Judgment of:

Monahan FM

Hearing date:

16 March 2012

Date of Last Submission:

16 March 2012

Delivered at:

Sydney

Delivered on:

3 July 2012

REPRESENTATION

Counsel for the Applicant:

Not applicable

Solicitors for the Applicant:

Self-represented litigant

Counsel for the Respondent:

Not applicable

Solicitors for the Respondent:

Self-represented litigant

ORDERS

All extant applications be adjourned to this Court on 9 August 2012 at 9:30am for mention (“the mention hearing”).
The Respondent’s application, under s.110 of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”) (as in force in 2006), for leave to appeal the objection decision made on 23 August 2006 be refused.
The Respondent’s application for leave, pursuant to ss.111 and 112 of the CSAA (as currently in force), to vary administrative assessments of child support be refused in respect of the following assessments:
(a)the decision of Mr D made on 23 April 2008; and
(b)the decision of Mr H made on 6 April 2009.
The Further Amended Response filed by the Respondent on 25 January 2012 be otherwise dismissed.

AND THE COURT NOTES THAT:
(A)The purpose of the mention hearing is to:

consider whether the Child Support Registrar wishes to take an active part in these enforcement proceedings;
consider whether the matter would benefit from a transfer to the Wollongong Registry of this Court;
make further directions in the matter; and
consider whether the matter is suitable to be set down for final hearing of the mother’s enforcement application.

(B)At the hearing on 16 March 2012, the Further Amended Response filed on 25 January 2012 by the Respondent was treated as an Application in a Case.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 845 of 2009

MS MOORE

Applicant

And

MR MOORE

Respondent

REASONS FOR JUDGMENT

Introduction

This decision relates…

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 Moore and Moore

Details

AGLC: Moore and Moore [2012] FMCAfam 577
Case: [2012] FMCAfam 577
Decision Date: 3 July 2012

CaseChat Overview and Summary

The case involved a dispute between the parties, referred to as the Applicant and the Respondent, regarding child support matters. The Applicant sought to enforce child support payments, while the Respondent opposed the enforcement and sought to appeal certain decisions. The matter was heard in the Family Court of Australia. The legal issues before the court included whether the Respondent had leave to appeal decisions made in 2006 and 2008 under the Child Support (Assessment) Act 1989 (Cth). Additionally, the court had to determine whether the Respondent could vary certain administrative assessments of child support made in 2008 and 2009.

The court considered the statutory provisions governing appeals and variations of child support assessments, focusing on the eligibility criteria and procedural requirements. It found that the Respondent did not meet the criteria for leave to appeal the 2006 decision, nor did they satisfy the requirements for varying the 2008 and 2009 assessments. The court held that the Respondent's applications for leave to appeal and to vary the assessments were without merit and should be refused. The court also dismissed the Respondent's Further Amended Response, treating it as an application in the case. The purpose of the upcoming mention hearing was to consider various administrative aspects of the enforcement proceedings and to determine if the matter could proceed to final hearing.

The court issued several orders, including the refusal of the Respondent's applications for leave to appeal and to vary assessments. It also dismissed the Respondent's Further Amended Response. The mention hearing, scheduled for 9 August 2012, was set to consider administrative aspects of the enforcement proceedings, including the role of the Child Support Registrar, potential transfer to another registry, and directions for the final hearing. The court noted that the enforcement application would be considered for final hearing, contingent on the outcomes of the mention hearing.

Orders

Orders of the court

All extant applications be adjourned to this Court on 9 August 2012 at 9:30am for mention (“the mention hearing”).

The Respondent’s application, under s.110 of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”) (as in force in 2006), for leave to appeal the objection decision made on 23 August 2006 be refused.

The Respondent’s application for leave, pursuant to ss.111 and 112 of the CSAA (as currently in force), to vary administrative assessments of child support be refused in respect of the following assessments:

(a) the decision of Mr D made on 23 April 2008; and

(b) the decision of Mr H made on 6 April 2009.

The Further Amended Response filed by the Respondent on 25 January 2012 be otherwise dismissed.

AND THE COURT NOTES THAT:

(A) The purpose of the mention hearing is to:

consider whether the Child Support Registrar wishes to take an active part in these enforcement proceedings;

consider whether the matter would benefit from a transfer to the Wollongong Registry of this Court;

make further directions in the matter; and

consider whether the matter is suitable to be set down for final hearing of the mother’s enforcement application.

(B) At the hearing on 16 March 2012, the Further Amended Response filed on 25 January 2012 by the Respondent was treated as an Application in a Case.

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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