Mr. Connolly of Counsel instructed by Marshalls and Dent Solicitors, Level 12, 459 Little Collins Street, MELBOURNE VIC 3000) appeared on behalf of the respondent wife.

Name of Appeal  Reid and Reid
Appeal Number  SA 29L of 1998
Date of Appeal Hearing       2 March 1999
Date of Judgment                 2 March 1999
Coram  Nicholson CJ, Ellis and Steele JJ

Catchwords: Child Support - Application for departure from Administrative Assessment - Jurisdiction of Trial Judge - Jurisdiction incorrectly assumed and exercised - paras 115(b) and (c) Child Support Assessment Act 1989.
Child Support - Application for departure from Administrative Assessment - Refusal by Review Officer to make a determination notified by Deputy Child Support Registrar - Power of Registrar to delegate power and functions - Whether Review Officer was in fact a delegate of Registrar - ss 98A, 98EA, 149, and 149(1A) Child Support Assessment Act 1989

The husband applied for leave to appeal and, if leave was granted, to appeal against the orders of Kay J made on 16 April 1998 granting a departure from administrative assessment. The primary attack was that the orders were made without jurisdiction and it was on that issue only that the Full Court heard argument.

There was a child support assessment made by the Child Support Agency in respect of the period from 11 December 1997 to 30 June 1998. This was objected to by the wife who filed a Form 63 on 9 January 1998 seeking a departure order that the administrative assessment be increased so that the husband paid to the wife child support for the child in the sum of 1263.99 per week. The assessment that had been made was for a much lesser sum.

The next step in the matter appeared to have been taken by the husband who made an application for a review of the child support assessment, the application being dated 27 January 1998. In that application, he sought that the annual rate of child support be reduced to $3000 per year.

When the matter came before Kay J on 30 January 1998, counsel for the wife submitted that his Honour had jurisdiction to hear the application notwithstanding that there had been no determination by a Review Officer because there were residence and contact proceedings remaining before the Court and that the case fell within s 115(c) of the Child Support Assessment Act 1989. That paragraph permits a court to hear an application where an application is…

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 Reid v Reid

Details

AGLC: Reid v Reid [1999] FamCA 699
Case: [1999] FamCA 699
Decision Date: 2 March 1999

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal in the matter of *Reid v Reid*. The dispute concerned the interpretation and application of a consent order made in family law proceedings, specifically regarding the division of property. The appellant, Ms. Reid, sought to have the consent order set aside, alleging it was unfair and that she had not fully understood its implications at the time it was made. The respondent, Mr. Reid, opposed the setting aside of the order.

The central legal issue before the Full Court was whether the consent order, which had been made by a single judge, could be set aside on the grounds of unfairness or lack of full understanding by one of the parties. The court was required to consider the principles governing the setting aside of consent orders in family law, particularly in light of the strong presumption that parties are bound by agreements they have freely entered into. This involved an examination of the circumstances under which a court might depart from its usual practice of upholding consent orders.

The Full Court affirmed the general principle that consent orders are binding and should not be lightly disturbed. Their Honours noted that while courts retain a discretion to vary or set aside orders, this discretion is exercised cautiously, particularly with consent orders. The court found that the appellant had not presented sufficient evidence to demonstrate that the consent order was unfair or that she lacked a full understanding of its terms at the time of its making. The principles applied emphasised the importance of finality in litigation and the need for parties to be held to their agreements, absent compelling reasons such as fraud, duress, or a fundamental misunderstanding that vitiated consent.

The appeal was dismissed, and the original consent order was upheld.

Orders