Naczek and Dowler - [2017] FamCA 105

FAMILY COURT OF AUSTRALIA

NACZEK & DOWLER

[2017] FamCA 105

FAMILY LAW – Spouse and child maintenance orders made overseas – husband seeks discharge in Australia because of change of circumstances – respondent fails to appear – circumstances established – provisional orders made.

Child Support Assessment Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Daniels & Bell (2007) FLC 93-315
Lutzke (1979) FLC 90-714
Vakil & Vakil (1997) FLC 92-743

APPLICANT:

Mr Naczek

RESPONDENT:

Ms Dowler

FILE NUMBER:

MLC

4659

2011

DATE DELIVERED:

16 February 2017

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

16 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Vohra

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

THE RESPONDENT:

No appearance

Orders

IT IS ORDERED PROVISIONALLY:

That Order 2 of the orders made on 14 December 2006 in Case No FD05D02174 as varied by the orders of the Honourable Mrs Justice Baron DBE on 3 November 2009 is discharged.
That orders 3 and 4 of the said orders are discharged.
That the Registrar of the Family Court of Australia forward this order together with the reasons for judgment to the Secretary of the Australian Attorney-General’s Department with a request that they be forwarded to the Principal Registry of the Family Division of the High Court of Justice in London, United Kingdom for the purposes of confirmation (either with or without modification) by a court having jurisdiction in respect of the said original overseas maintenance orders.
That the attention of the Secretary of the Attorney-General’s Department is drawn to the provisions of Regulation 38A of the Family Law Regulations 1984.
That the respondent pay the applicant’s costs fixed in the sum of $4091.
That the application filed 6 October 2015 is otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4659 of 2011

Ms Naczek

Applicant

And

Ms Dowler

Respondent

REASONS FOR JUDGMENT

This is an application brought by Mr Naczek seeking the discharge of orders made in the United Kingdom for spousal maintenance and child financial support. Ms Dowler is the respondent. On 23 November 2015, she filed a response seeking that his applications be dismissed, that the current orders be maintained and an order that Mr Naczek pay her costs. The matter was listed for directions on 31 October, at which time both parties appeared, including Mr Naczek being represented and Ms Dowler not.
The matter was then set down for trial. Ms Dowler filed a response on 22 December in the form of an application in a case. I will treat that as, indeed, what she is formally seeking. It indicates that she was aware that the hearing was on 16 February.
Equally consistent with the question of her knowledge of these proceedings is…

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 Naczek and Dowler

Details

AGLC: Naczek and Dowler [2017] FamCA 105
Case: [2017] FamCA 105
Decision Date: 16 February 2017

CaseChat Overview and Summary

In the matter of *Naczek and Dowler*, heard before Cronin J of the Family Court of Australia, the applicant sought to discharge existing orders relating to maintenance, which had been made in 2006 and varied in 2009. The respondent was ordered to pay the applicant's costs.

The central legal issue before the court was the appropriate course of action regarding the existing overseas maintenance orders, given the applicant's request for their discharge. The court was required to determine whether to discharge the orders and, if so, how to effectuate this in relation to the original jurisdiction in the United Kingdom.

Cronin J discharged specific orders made on 14 December 2006 and varied on 3 November 2009. The court directed that the Registrar forward the order and reasons for judgment to the Secretary of the Australian Attorney-General’s Department for transmission to the Principal Registry of the Family Division of the High Court of Justice in London. This was for the purpose of confirmation of the discharge of the original overseas maintenance orders. The court also drew the attention of the Secretary to Regulation 38A of the Family Law Regulations 1984. The respondent was ordered to pay the applicant's costs fixed at $4091, and the applicant's application filed on 6 October 2015 was otherwise dismissed.

Orders

Orders of the court

IT IS ORDERED PROVISIONALLY:

That Order 2 of the orders made on 14 December 2006 in Case No FD05D02174 as varied by the orders of the Honourable Mrs Justice Baron DBE on 3 November 2009 is discharged.

That orders 3 and 4 of the said orders are discharged.

That the Registrar of the Family Court of Australia forward this order together with the reasons for judgment to the Secretary of the Australian Attorney-General’s Department with a request that they be forwarded to the Principal Registry of the Family Division of the High Court of Justice in London, United Kingdom for the purposes of confirmation (either with or without modification) by a court having jurisdiction in respect of the said original overseas maintenance orders.

That the attention of the Secretary of the Attorney-General’s Department is drawn to the provisions of Regulation 38A of the Family Law Regulations 1984.

That the respondent pay the applicant’s costs fixed in the sum of $4091.

That the application filed 6 October 2015 is otherwise dismissed.

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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