REEDS & ALBELO - [2012] FamCAFC 44

FAMILY COURT OF AUSTRALIA

REEDS & ALBELO

[2012] FamCAFC 44

FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – CHILD SUPPORT – where s 102A of the Child Support (Assessment) Act 1989 (Cth) (“Assessment Act”) requires leave to appeal when seeking to appeal against an order under that Act – where it must be demonstrated that there has been an error of principle or a substantial injustice has been caused – where the respondent opposes the application – where the complaint made falls into two categories first, whether the Federal Magistrate erred in finding that the father was the liable parent within the meaning of s 124 of the Assessment Act and secondly, if he was, whether the Federal Magistrate erred in making the orders that he did on the evidence that was before him – where the Federal Magistrate erred in finding that the father was the liable parent – where there is no need to consider whether the Federal Magistrate erred in making the orders that he did on the evidence that was before him – where leave to appeal is granted – where there is merit in five of the six grounds of appeal – where the appeal must succeed – Orders 4 and 5 made by the Federal Magistrate on 28 January 2011 set aside.

FAMILY LAW – APPEAL – COSTS – where the applicant sought an order for costs against the respondent and in the alternative if no order for costs was made that a cost certificate issue – where the respondent opposed any order for costs but also sought a cost certificate – where there should be no order for costs given that the appeal succeeded on a question of law – costs certificates ordered.

Child Support (Assessment) Act 1989 (Cth) s 5(1)(a) and (b), s 102A, s 121, s 123(2), s 124
Family Law Act 1975 (Cth) s 94AA

Forbes & Bream [2010] FamCAFC 6
Gilmour and Gilmour (1995) FLC 92-591
Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641
N & B [2003] FMCAfam 72
Rutherford and Rutherford (1991) FLC 92-255

D C Pearce & R S Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 7^th ed, 2011)

APPLICANT:

Mr Reeds

RESPONDENT:

Ms Albelo

FILE NUMBER:

HBC

209

2010

APPEAL NUMBER:

SOA

2011

DATE DELIVERED:

20 March 2012

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

5 July 2011

DATE OF LAST SUBMISSION:

5 August 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

28 January 2011

LOWER COURT MNC:

[2011] FMCAfam 18

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ayliffe

SOLICITOR FOR THE APPLICANT:

Munro & Associates

COUNSEL FOR THE RESPONDENT:

Mr Barker

SOLICITOR FOR THE RESPONDENT:

PWB Lawyers

Orders

Leave to appeal be granted.
The appeal be allowed.
Orders 4 and 5 of the orders made by Federal Magistrate Roberts on 28 January 2011 be set aside.
The Court grants to the Applicant Father…

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.

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Details

AGLC: REEDS & ALBELO [2012] FamCAFC 44
Case: [2012] FamCAFC 44
Decision Date: 20 March 2012

CaseChat Overview and Summary

In the case of Reeds & Abelo, the father, Mr Reeds, sought leave to appeal a decision of the Federal Circuit Court regarding child support matters. The appeal concerned whether the Federal Magistrate had correctly identified the liable parent under section 124 of the Child Support (Assessment) Act 1989 and, if so, whether the Magistrate had erred in the orders made based on the evidence presented. The mother, Ms Abelo, opposed the application for leave to appeal and also contested any order for costs, but sought a cost certificate herself.

The legal issues the court had to decide were whether the Federal Magistrate had erred in determining that the father was the liable parent and, if so, whether this error warranted leave to appeal. The court also had to consider whether the Magistrate's orders were erroneous based on the evidence. Additionally, the court examined the applicant's request for costs and the respondent's request for a cost certificate.

The court found that the Federal Magistrate had indeed erred in identifying the liable parent, which was sufficient to grant leave to appeal. The appeal was allowed on the basis that the Magistrate's error was significant enough to warrant reconsideration. The court set aside Orders 4 and 5 of the Federal Magistrate's decision, finding merit in five of the six grounds of appeal. Given that the appeal succeeded on a question of law, the court did not make an order for costs but did grant both parties a cost certificate under the Federal Proceedings (Costs) Act 1981. This allowed the Attorney-General to authorise payments for the costs incurred by both parties in relation to the appeal.

The final orders of the court were to grant leave to appeal, allow the appeal, set aside Orders 4 and 5 made by the Federal Magistrate on 28 January 2011, and issue cost certificates to both the applicant and the respondent under the Federal Proceedings (Costs) Act 1981.

Orders

Orders of the court

Leave to appeal be granted.

The appeal be allowed.

Orders 4 and 5 of the orders made by Federal Magistrate Roberts on 28 January 2011 be set aside.

The Court grants to the Applicant Father a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Applicant Father in respect of the costs incurred by the Applicant Father in relation to the appeal.

The Court grants to the Respondent Mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Mother in respect of the costs incurred by the Respondent Mother in relation to the appeal.

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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