ONGAL & MATERNS - [2014] FamCA 409

FAMILY COURT OF AUSTRALIA

ONGAL & MATERNS

[2014] FamCA 409

FAMILY LAW – CHILD SUPPORT – Application for departure – parties restrained from filing further applications without first obtaining leave – consideration of s 117 – history of the matter - not just and equitable – no special circumstances exist – application for leave is dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Stay – father sought stay pending outcome of appeal – appeal would not be rendered nugatory – best interests of children – desirability in limiting frequency of changes – application for stay is dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 22.11

Child Support (Assessment) Act 1989 (Cth)s 98E, 99, 100, 111, 112, 117
Child Support (Registration and Collection) Act 1988 (Cth) s 104, 105, 106, 107A, 110Q, 110W

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Cape & Cape [2013] FamCAFC 114

APPLICANT:

Mr Ongal

RESPONDENT:

Ms Materns

FILE NUMBER:

ADC

2107

2007

DATE DELIVERED:

18 June 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

25 March 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

N/A

SOLICITOR FOR THE APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

The Applications in a Case filed by the father on 27 February 2014 and 25 March 2014 are dismissed and removed from the active pending list.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns 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 ADELAIDE

FILE NUMBER: ADC 2107 of 2007

Mr Ongal

Respondent

And

Ms Materns

Respondent

REASONS FOR JUDGMENT

Introduction

On 25 March 2014 I reserved judgment on the father’s Application in a Case filed on 27 February 2014 and his oral application to stay paragraphs 1 to 11 of the Orders the Court made on 4 December 2013. The application for stay of the children’s orders is also set out in the Application in a Case filed by the father on that day 25 March 2014.

The Hearing

At the interim hearing before me on 25 March 2014 both the mother and father were unrepresented. The Application in a Case filed by the father on 27 February 2014 stated as the orders that the applicant father was seeking:
1. I ask that this be dealt with urgently in Chambers.
2.Under current parenting Order 10 of 4 December 2013 I seek leave to refile or reinstate with the Child Support Application filed 13 August 2013.
The Child Support Application filed on 13 August 2013 was contained in an Initiating Application (Family Law) filed by the father seeking final orders as follows:
1.I seek leave to depart from three child support assessment decisions that are outside 18 months but within seven years.
2.I seek leave to depart from the administrative decision of the Child Support Registrar made 23^rd October 2006,…

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 ONGAL & MATERNS

Details

AGLC: ONGAL & MATERNS [2014] FamCA 409
Case: [2014] FamCA 409
Decision Date: 18 June 2014

CaseChat Overview and Summary

The matter of *Ongal & Materns* concerned applications made by the father in the Family Court of Australia before Dawe J. The father sought both leave to file further applications concerning child support, and a stay of proceedings pending the outcome of an appeal he had lodged.

The primary legal issues before the court were whether it was just and equitable to grant the father leave to file further child support applications, and whether a stay of proceedings should be granted pending his appeal. The court was required to consider the provisions of section 117 of the *Family Law Act 1975* (Cth) in relation to the departure from the child support assessment, and to assess whether any special circumstances warranted such a departure. Furthermore, the court had to determine if the father's appeal would be rendered nugatory without a stay, and consider the best interests of the children and the desirability of limiting the frequency of changes to their living arrangements.

Dawe J found that the history of the matter did not support the contention that it was just and equitable to grant leave for further child support applications, nor were there any special circumstances justifying a departure from the existing assessment. Consequently, the application for leave was dismissed. Similarly, the application for a stay was refused, as the court determined that the appeal would not be rendered nugatory without it, and that the best interests of the children and the need for stability weighed against granting a stay.

Accordingly, the applications filed by the father on 27 February 2014 and 25 March 2014 were dismissed and removed from the active pending list.

Orders

Orders of the court

The Applications in a Case filed by the father on 27 February 2014 and 25 March 2014 are dismissed and removed from the active pending list.

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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