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Parker and Jacks

Parker and Jacks

Case [2009] FMCAfam 290 19 March 2009

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FEDERAL MAGISTRATES COURT OF AUSTRALIA

PARKER & JACKS

[2009] FMCAfam 290

CHILD SUPPORT – Interim application – application to reopen hearing – principles to be applied – allegation of non disclosure – full and frank disclosure – duty absolute.

Child Support (Assessment) Act 1989 (Cth)
Federal Magistrates Court Rules 2001 (Cth) r.24.03

Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471
Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) (2009) FCA 82
Luton v Lessels (2002) 210 CLR 333
Kannis & Kannis [2002] FamCA 1150
Radic & Radic [2007] FamCA 559
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Briese (1986) FLC 91-713
K & K [2002] FamCA 1150

Applicant:

MR PARKER

Respondent:

MS JACKS

File Number:

MLC 236 of 2008

Judgment of:

O'Sullivan FM

Hearing date:

19 March 2009

Date of Last Submission:

19 March 2009

Delivered at:

Melbourne

Delivered on:

19 March 2009

REPRESENTATION

Counsel for the Applicant:

Mr M.L. Pavone

Solicitors for the Applicant:

Littleton Hackford & D’Alessandro

Counsel for the Respondent:

Ms B.A. Tulloch

Solicitors for the Respondent:

Jane M Curtis & Associates

ORDERS

THE COURT ORDERS THAT:

The husband be granted leave to re-open the hearing of this matter and the wife be recalled and cross examined.
The wife file and serve submissions on or before 20 April 2009.
The husband file and serve submissions on or before 4 May 2009.
The wife file and serve any submissions in reply on or before 18 May 2009.
The question of all parties costs of this day be reserved.
The matter be otherwise be adjourned to a date to be fixed.

THE COURT NOTES THAT:

(A)The wife has foreshadowed this day that she may seek to obtain a transcript of the proceedings of 5 November 2008 at her expense and if so she provide a copy of the transcript to the husband’s solicitors (on the basis that the husband pay reasonable photocopying expenses) on or before 2 May 2009.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC 236 of 2008

MR PARKER

Applicant

And

MS JACKS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

Introduction

Before the Court today 19 March 2009, are proceedings involving an application in a case filed on 9 December 2008 seeking to reopen the hearing of an application made under the Child Support (Assessment) Act 1989 (“the CSA Act”).
The applicant in these proceedings, Mr Parker (“the husband”) is approximately 61 years of age. The respondent, Ms Jacks (“the wife”) is currently 56 years of age.
The parties married in 1985. There are three children of the marriage namely, [X], [Y] and [Z], only one of whom is under 18 (being [Z]). The parties separated in 2000.
Following separation there were proceedings in the Family Court of Australia and in September 2002 the parties entered…

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 Parker and Jacks

Details

AGLC: Parker and Jacks [2009] FMCAfam 290
Case: [2009] FMCAfam 290
Decision Date: 19 March 2009

CaseChat Overview and Summary

In the matter of Parker and Jacks, the husband sought to reopen the proceedings in relation to property settlement matters. The court was required to determine whether the husband should be granted leave to reopen the hearing, if the wife should be recalled for cross-examination, and what orders should be made regarding costs and submissions. The court found that the husband should be granted leave to reopen the hearing and that the wife should be recalled for cross-examination. The court also ordered that the wife file and serve submissions by 20 April 2009, and that the husband file and serve submissions by 4 May 2009. Any submissions in reply by the wife were to be filed by 18 May 2009. The question of costs was reserved and the matter was adjourned to a date to be fixed. The court also noted that the wife may seek to obtain a transcript of the proceedings of 5 November 2008 at her expense and if so, provide a copy to the husband’s solicitors on or before 2 May 2009, with the husband to pay reasonable photocopying expenses.

Orders

Orders of the court

THE COURT ORDERS THAT:

The husband be granted leave to re-open the hearing of this matter and the wife be recalled and cross examined.

The wife file and serve submissions on or before 20 April 2009.

The husband file and serve submissions on or before 4 May 2009.

The wife file and serve any submissions in reply on or before 18 May 2009.

The question of all parties costs of this day be reserved.

The matter be otherwise be adjourned to a date to be fixed.

THE COURT NOTES THAT:

(A) The wife has foreshadowed this day that she may seek to obtain a transcript of the proceedings of 5 November 2008 at her expense and if so she provide a copy of the transcript to the husband’s solicitors (on the basis that the husband pay reasonable photocopying expenses) on or before 2 May 2009.

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.

Citations

AGLC Citation

Parker and Jacks [2009] FMCAfam 290

Most Recent Citation

PARKER & JACKS (No.2) [2009] FMCAfam 743

Cases citing this decision · 2 of 2 shown

Parker & Jacks (No.3)
[2009] FMCAfam 993 Para 5

…t is necessary to so do (albeit with footnotes omitted). [14] see Parker & Jacks (No.2) [2009] FMCAfam 743 “30. As was made clear in Parker & Jacks [2009] FMCAfam 290 the applicant alleged the respondent had failed to disclose money she had received. It is now clear these monies were received by the respondent as a r…
PARKER & JACKS (No.2)
[2009] FMCAfam 743 Para 13

…For the reasons set out in Parker & Jacks [2009] FMCAfam 290 the applicant was granted leave to re-open the hearing.The respondent was recalled and cross examined. The Court then made the following orders: “1. … 2. The wife file and serve submissions on or before 20 April 2009. 3. The husband file and serve submissio…

View all 2 citing cases →

Cases cited in this decision · 9 of 9 shown

Weir v Weir
[2016] NZHC 1920 Para 7

…91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir (1993) FLC 92-338; 16 Fam LR 154). 68. In Black and Kellner (supra) the appellant had submitted that, absent findings as to the extent of his wealth, the order made by th…
Granitgard Pty Ltd v Termicide Pest Control Pty Ltd
[2008] FCA 865 Para 2

…Those principles are also referred to in the decision of Logan J in Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) (2009) FCA 82 at paragraphs [5]-[6] as follows: “5.That there is a jurisdiction to permit a party to reopen its case, so as to adduce further evidence, even after a statemen…
Radic & Radic
[2007] FamCA 559 Para 7

…hould take to the obligations of parties involved in financial proceedings has been summarised by the Full Court of the Family Court in Radic v Radic [2007] FamCA 559 at paragraphs [75] to [78] as follows: “75. The requirement of parties in financial matters before the Court to make a full, frank and complete discl…
Kannis & Kannis
[2002] FamCA 1150 Para 7

…es, including the above statement in Briese and Briese (supra), are conveniently and fully discussed in the decision of the Full Court in K and K [2002] FamCA 1150. Although lengthy, the discussion is apposite to this matter, particularly to the issue of value to be attributed to undisclosed assets: 47. There have b…
Luton v Lessels
[2002] HCA 13 Para 4

…concerns applications under both the CSA Act and also a claim for adult child maintenance. In relation to the CSA Act, as was said in Luton v Lessels (2002) 210 CLR 333 at paragraph [340]: “Although the legislation is enacted in the furtherance of a clearly defined public policy, it creates a distinctly personal liab…
Smith v New South Wales Bar Association
[1992] HCA 36 Para 2

…een made to the court that the party’s case in evidence has closed is not in doubt: see, for example, Smith v The New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 266 to 267. 6.A useful starting point, in the context of an application such as this, is a passage which appears in Urban Transpor…
Stein v Stein
[1986] FamCA 27 Para 7

…gh the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein v Stein (1986) FLC 91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir (1993) FLC…
Livesey v Jenkins
[1984] UKHL 3 Para 7

…ating a portion of his Honour's statement at 75,181 where he said, after referring to the decision of the House of Lords in Livesey v Jenkins (1985) All ER 106: “... I believe that the conclusion of the House of Lords in the case of Livesey v Jenkins ... is apposite, namely that in financial proceedings between spouses eac…
Urban Transport Authority of New South Wales v Nweiser
4 QBD 217

…Urban Transport Authority of New South Wales v Nweiser (1992) 28 NSWLR 471 Granitgard Pty Ltd v Termicide Pest Control Pty Ltd (No 3) (2009) FCA 82 Luton v Lessels (2002) 210 CLR 333 Kannis & Kannis [2002] FamCA 1150 Radic & Radic [2007] FamCA 559 Black & Kellner (1992) FLC 92-287 Weir & Weir (1993) FLC 92-338 Briese (1986) FLC 91-713 K & K [2002] FamCA 1150…

Legislation cited in this decision · 3

Federal Magistrates Court Rules 2001 (Cth)
24.03 2 mentions (from Para 7)
Child Support (Assessment) Act 1989 (Cth)
1 mention (from Para 1)
Family Law Act 1975 (Cth)
1 mention