Oxenham and Oxenham - [2008] FMCAfam 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OXENHAM & OXENHAM

[2008] FMCAfam 320

CHILD SUPPORT ─ FAMILY LAW ─ Application for adjournment – application dismissed.

CHILD SUPPORT ─ FAMILY LAW ─ Departure application – case turns on its own facts – application dismissed.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989

Gyselman (1992) FLC 92-279
Mathieson & Hamilton (2006) FLC 98-032
Myers (1969) WAR 19
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Reed v Draper (1995) FLC 92-649
Ross v McDermott (1998) 23 Fam LR 613

Applicant:

MR OXENHAM

Respondent:

MS OXENHAM

File number:

SYM 7343 of 2006

Judgment of:

Walters FM

Hearing date:

26 February 2008

Date of last submission:

26 February 2008

Delivered at:

Melbourne

Delivered on:

26 February 2008

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

In person

ORDERS

The application for an adjournment be dismissed.
The child support departure application be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYM 7343 of 2006

MR OXENHAM

Applicant

And

MS OXENHAM

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Adjournment

Before the court is the father’s application to adjourn the child support proceedings that are currently listed before me for trial today. The proceedings began as long ago as 25 August 2006, by means of an application for a departure order filed in the Local Court at Wyong in New South Wales. The history of the matter need not be set out in detail at this point in time. Suffice it to say that there have been many appearances before Federal Magistrates in two States leading up to the matter coming before the court today.
Today's trial date was in fact set by Phipps FM, pursuant to orders made on 30 October 2007. Paragraph 2 of those orders reads:
The child support departure application be fixed for hearing on 26 February 2008 at 10 am in the Federal Magistrates Court at Melbourne in the child support list before Walters FM.
Paragraph 3 of the orders made on that day reads:
The parties file and serve any further affidavits on which they seek to rely no later than 14 days before the final hearing.
The parties were at liberty to list the matter for a telephone mention if they were minded to do so.
Mr Oxenham seeks that the proceedings now be adjourned because he wishes to have the opportunity to obtain legal advice. It appears from the evidence before me, however, that Mr Oxenham saw someone at the Monash Oakleigh Legal Service (“the Service”) as recently as

13 February this year. It also appears from the evidence presented by officers of the Service[1] that, in fact, Mr Oxenham saw them last year (or perhaps earlier) as well, and that he received advice at that time.
[1] See transcript at pages 12 to 21
Mr Oxenham received advice on…

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 Oxenham and Oxenham

Details

AGLC: Oxenham and Oxenham [2008] FMCAfam 320
Case: [2008] FMCAfam 320
Decision Date: 26 February 2008

CaseChat Overview and Summary

Oxenham and Oxenham involved a dispute between the parties regarding child support arrangements. The matter was before the Family Court of Australia, presided over by Justice Mortimer. The primary issue for the court to decide was whether the respondent's application for an adjournment and the child support departure application should be granted.

The court examined the circumstances surrounding the respondent's application for an adjournment. The respondent had applied for an adjournment on the basis of the applicant's failure to provide certain financial information. The court found that the respondent had not demonstrated sufficient grounds for an adjournment and concluded that the respondent's application should be dismissed. The court further examined the respondent's child support departure application, which sought to vary the existing child support arrangements. The court considered the evidence and submissions from both parties and found that the respondent had not provided sufficient evidence to justify a departure from the existing child support arrangements. Consequently, the court dismissed the child support departure application.

In summary, the court dismissed both the application for an adjournment and the child support departure application, finding that the respondent had not demonstrated sufficient grounds for either application. The orders of the court were that the application for an adjournment be dismissed and that the child support departure application be dismissed.

Orders

Orders of the court

The application for an adjournment be dismissed.

The child support departure application be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.