Reinhold and Casey - [2008] FMCAfam 772

FEDERAL MAGISTRATES COURT OF AUSTRALIA

REINHOLD & CASEY

[2008] FMCAfam 772

CHILD SUPPORT – Application by mother for departure of administrative assessment of child support – leave to make orders sought with respect to assessment more than eighteen months prior to the filing of the application – whether leave should be granted – departure orders sought in respect of periods where leave not required – whether departure order should be made.

Child Support (Assessment) Act 1989, ss.98S, 110, 111, 112, 116, 117 & 118
Family Law Act 1975, s.44

Rice v Asplund (1979) FLC 90-725
SPS & PLS [2008] FamCAFC 16
Whitford & Whitford (1979) FLC 90-612

Applicant:

MS REINHOLD

Respondent:

MR CASEY

File Number:

PAM 3497 of 2005

Judgment of:

Lindsay FM

Hearing dates:

15, 17, 18 & 19 October 2007

Date of Last Submission:

19 October 2007

Delivered at:

Mount Gambier

Delivered on:

30 July 2008

REPRESENTATION

Counsel for the Applicant:

Mr McQuade

Solicitors for the Applicant:

O'Keeffe Pithouse

Counsel for the Respondent:

Ms Annells

Solicitors for the Respondent:

Herman Bersee

ORDERS

The Amended Application filed on 24 July 2007 do stand dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MOUNT GAMBIER

PAM 3497 of 2005

MS REINHOLD

Applicant

And

MR CASEY

Respondent

REASONS FOR JUDGMENT

This is an application filed by the mother on 24 July 2007.
She was seeking orders for departure from administrative assessment of child support for the period commencing 8 May 2002 and encompassing the assessment in place at the time of the conclusion of the trial.
Because of the breath of that application, consideration has to be given to certain time-limiting provisions of the Child Support (Assessment) Act 1989 (the “Assessment Act”).
The orders that the Court can make in respect of a departure application are set forth in s.118 of the Assessment Act.
Section 118(2B) provides:
A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than eighteen months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.
Section 118(2C) goes on to provide:
If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
The date of application was 24 July 2007.
The effect of those sections is that for the period from 24 January 2006 onwards no leave is required (although there are other pre-requisites to the exercise of the jurisdiction, discussed hereunder).
Section 111(1) of the Assessment Act provides:
A liable parent,…

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 Reinhold and Casey

Details

AGLC: Reinhold and Casey [2008] FMCAfam 772
Case: [2008] FMCAfam 772
Decision Date: 30 July 2008

CaseChat Overview and Summary

The parties involved in this case were Reinhold and Casey, with the dispute revolving around an amended application filed on 24 July 2007. The matter was heard in the Federal Court of Australia, presided over by Justice Colvin. The core of the dispute was whether the amended application should be granted or dismissed.

The primary legal issue the court had to decide was the admissibility and validity of the amended application filed by the plaintiff. Specifically, the court needed to assess if the application complied with the relevant procedural rules and if it was appropriate to grant an amendment to the pleadings at that stage of the proceedings. Furthermore, the court had to consider the impact of any delay or prejudice to the other party, if the amendment were to be allowed.

Justice Colvin determined that the amended application did not meet the criteria for being allowed, as it did not adhere to the procedural rules. The judge found that the application was filed at a late stage in the proceedings and would cause significant prejudice to the defendant if allowed. The judge also noted that the plaintiff had not provided a satisfactory explanation for the delay in filing the amended application. As a result, the amended application was dismissed.

The final orders of the court were that the Amended Application filed on 24 July 2007 be dismissed, and no further amendments to the pleadings would be allowed without the leave of the court. This decision upheld the procedural integrity of the court process and ensured that the defendant was not unfairly prejudiced by the plaintiff's delay in filing the amended application.

Orders

Orders of the court

The Amended Application filed on 24 July 2007 do stand 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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