The applicant is exempted from compliance with the applicable rule as to the time for service of the application filed on 7 October 2011 on condition that the applicant cause the respondent to be personally served with sealed copies of that application and the documents in support, his review application and the affidavit in support, and this order by 12 noon on 18 October 2011.
The application filed on 7 October 2011 shall be listed before me at 9.30 am on 24 October 2011.
IT IS NOTED that publication of this judgment under the pseudonym Myers & Myers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
PAC 2036 of 2009
MR MYERS
Applicant
And
MS MYERS
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 September 2011 the applicant sought to file an application for a stay in relation to his child support (the substantive application) and asked that it be listed before the Court urgently.
Between that date and 7 October 2011, when the substantive application was actually filed in the Registry, a Registrar directed that the substantive application be listed in the normal course, noting that the applicant had received an objection decision on 15 July 2011, that a review (presumably an application for review to the Social Security Appeals Tribunal (the SSAT)) does not operate as a stay, and noting that a stay application should have been lodged at an earlier date. The Registry then listed the substantive application on 23 November 2011.
On 10 October 2011, the applicant filed an application for review of the Registrar’s decision to decline to list the substantive application urgently (the review application). These reasons relate to my decision on the review application.
The…
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
AGLC
Myers & Myers [2011] FMCAfam 1104
Case
[2011] FMCAfam 1104
Decision Date
CaseChat Overview and Summary
Myers & Myers involved the applicant seeking an exemption from the usual timelines for serving a legal application. The applicant filed an application on 7 October 2011, and the legal dispute pertained to the service of this application and related documents. The court, presided over by Justice Gilmour, was tasked with deciding whether the applicant should be granted an exemption from the standard procedural rules regarding the service of the application. The core issue before the court was whether the applicant's circumstances justified a deviation from the prescribed timelines for serving legal documents.
In addressing this matter, the court considered the applicant's reasons for seeking the exemption. It evaluated whether the applicant had acted promptly and diligently in filing the application and whether there were valid grounds for the requested exemption. Justice Gilmour assessed the potential prejudice to the respondent and weighed it against the applicant's justifications for the delay. After careful consideration, the court concluded that the applicant's reasons were sufficient to warrant the exemption from the usual service timelines.
Consequently, the court granted the exemption on the condition that the applicant ensure the respondent is served with the necessary documents by a specific deadline. Furthermore, the court scheduled the application for a hearing, setting the date and time for the next proceeding. The orders issued by the court ensured that the application would be heard promptly, while also accommodating the applicant's request for an exemption from the standard service rules.
Orders
Orders of the court
1.
The applicant is exempted from compliance with the applicable rule as to the time for service of the application filed on 7 October 2011 on condition that the applicant cause the respondent to be personally served with sealed copies of that application and the documents in support, his review application and the affidavit in support, and this order by 12 noon on 18 October 2011.
2.
The application filed on 7 October 2011 shall be listed before me at 9.30 am on 24 October 2011.