Richardson and Older

FAMILY COURT OF AUSTRALIA

RICHARDSON & OLDER [2008] FamCA 43

FAMILY LAW – CHILD SUPPORT – Appeal – s105 of the Child Support (Assessment Act) 1989 – principles applicable to leave

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

APPLICANT: Mr Richardson

RESPONDENT: Ms Older

FILE NUMBER: NCC 2211 of 2001

DATE DELIVERED: 15 January 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Fowler

HEARING DATE: 14 January 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Drake

SOLICITOR FOR THE RESPONDENT: Mr Nash

Orders

1. The father is granted leave to appeal from the decision of Magistrate Railton made on 19 June 2007.

2. The appeal is fixed for hearing at 9.30 am on Friday, 28 March 2008 before Justice Fowler in the Newcastle Registry.

3. Both parties are to file and serve any material by way of fresh evidence in support of their case on or before Friday, 14 March 2008

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Fowler delivered this day will for all publication and reporting purposes be referred to as Richardson & Older.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2211 of 2001

MR RICHARDSON

Applicant

And

MS OLDER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The matter before the court is an application for leave to appeal from the decision of Magistrate Railton made on 19 June 2007 dismissing the application brought by the father.

2. That application sought the overturning of a decision of the Child Support Registrar with respect to the child support payable for the two children of his relationship with the mother.  Those children are a son born in December 1992 and a daughter born in October 1997.

3. In January 2006 following an application made by the mother, the decision of the Child Support Registrar which adjusted the income of the father on which child support for the two children was determined was objected to by the father and his objection disallowed by the Child Support Registrar.

4. The appeal is brought pursuant to the provisions of Section 105 of the Child Support Act which provides that an appeal lies from a decree of a court of summary jurisdiction of a State to the Family Court.

5. Such appeal under Section 105(2) can only be brought with the leave of the court.

6. Section 105(6) provides that the appeal if leave is granted is to proceed by way of a hearing de novo but the Court may receive as evidence any record of evidence given in the matter, any affidavit filed or exhibit received in the court of summary jurisdiction.

7. This judgment relates only to the question of whether leave should be granted.

8. The Act is not of much assistance in identifying the matters that should be taken into account on an application for such leave.  The judgments of the Full Court on leave to appeal on questions of law do not seem to be particularly helpful since the result of leave in this case will…