Oxenham & Oxenham - [2008] FamCAFC 199

FAMILY COURT OF AUSTRALIA

OXENHAM & OXENHAM

[2008] FamCAFC 199

FAMILY LAW - APPEAL – Leave to appeal a decision of a Federal Magistrate – CHILD SUPPORT - Where the Federal Magistrate dismissed an application for an adjournment – Where the Federal Magistrate dismissed a departure application – No error of principle or substantial injustice found – Application for leave dismissed.

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Bassingthwaite & Leane (1993) FLC 92-410
Gyselman & Gyselman (1992) FLC 92‑279
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641
In the Marriage of Gilmour (1995) FLC 92–591
In the Marriage of Wild & Ballard (1997) FLC 92-771
In the Marriage of Best(1993) FLC 92–418
Mathieson & Hamilton (2006) FLC 98-032
OP v HM (2002) FLC 98-017
PD & CD & Child Support Registrar (2005) FLC 98-027
RAN & CAR [2006] FamCA 73
Rutherford & Rutherford (1991) FLC 92-255

APPELLANT:

MR OXENHAM

RESPONDENT:

MS OXENHAM

FILE NUMBER:

SYM

7343

2006

APPEAL NUMBER:

2008

DATE DELIVERED:

20 October 2008

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Mushin J

HEARING DATE:

20 October 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

26 February 2008

LOWER COURT MNC:

[2008] FMCAfam 320

REPRESENTATION

COUNSEL FOR THE APPELLANT:

N/A

SOLICITOR FOR THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

N/A

SOLICITOR FOR THE RESPONDENT:

In Person

Orders

On the matter of Oxenham & Oxenham, SA 16 of 2008, from SYM 7343 of 2006, I order:

That the husband's application for leave to appeal against the orders of Walters FM made on 26 February 2008 be dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal number: SA 16 of 2008
File number: SYM 7343 of 2006

MR OXENHAM

Appellant

And

MS OXENHAM

Respondent

REASONS FOR JUDGMENT

This is an application for leave to appeal against orders made by Walters FM on 26 February 2008, pursuant to the provisions of s 102A of the Child Support (Assessment) Act 1989 ("the Act").
Pursuant to s 93AAA(3) of the Family Law Act 1975, I have been delegated by the Chief Justice to sit to hear this appeal.
While the appellant husband has not actually sought leave to appeal but has only filed an Amended Notice of Appeal, because both he and the respondent wife have represented themselves before me, I have treated this matter as an application for leave.
Pursuant to s 102A of the Act, in order to establish the substantive grounds the appellant must seek leave, which in accordance with the authorities may be granted upon demonstrating either or both of an error of principle or a substantial injustice (See Rutherford & Rutherford (1991) FLC 92-255; Adam P Brown Male Fashions…

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 & Oxenham

Details

AGLC: Oxenham & Oxenham [2008] FamCAFC 199
Case: [2008] FamCAFC 199
Decision Date: 20 October 2008

CaseChat Overview and Summary

The parties involved in this case were Oxenham and Oxenham, with the husband seeking to appeal against the orders made by Walters FM on 26 February 2008. The nature of the dispute is the husband's application for leave to appeal against the aforementioned orders. This matter was heard in the Supreme Court of South Australia.

The legal issues that the court was required to decide included whether the husband's application for leave to appeal should be granted, and whether the orders made by Walters FM were just and appropriate. The court also needed to consider the grounds for the appeal and whether there were any errors in the previous decision that warranted an appeal.

In reaching its decision, the court considered the arguments presented by both parties and examined the evidence and findings of the previous decision. The court found that the husband's application for leave to appeal was not well-founded and that the orders made by Walters FM were just and appropriate. The court also found that there were no errors in the previous decision that warranted an appeal. Based on these findings, the court dismissed the husband's application for leave to appeal.

Orders

Orders of the court

On the matter of Oxenham & Oxenham, SA 16 of 2008, from SYM 7343 of 2006, I order:

That the husband's application for leave to appeal against the orders of Walters FM made on 26 February 2008 be 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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