Saberton & Saberton

Case [2013] FamCAFC 89


FAMILY COURT OF AUSTRALIA

SABERTON & SABERTON [2013] FamCAFC 89

FAMILY LAW – APPEAL – JURISDICTION – Whether a court in the exercise of original jurisdiction has jurisdiction under s 116 of the Child Support (Assessment) Act 1989 (Cth) to determine a remitted application – Where the finalisation of all other aspects of the proceedings meant there was no longer an “application pending in a court having jurisdiction under this Act” to satisfy the provisions of s 116 – Held that jurisdiction to make orders pursuant to s 116 of the Assessment Act continues from when the order is made until completion of the judicial process.

FAMILY LAW – APPEAL – CHILD SUPPORT ORDERS – Whether it was just and equitable to make a departure order from an administrative assessment with reference to s 117 of the Assessment Act – Where there were no findings made as to matters to which the court must be satisfied before making an order – APPEAL ALLOWED - Order set aside and the matter remitted for rehearing.

Child Support (Assessment) Act 1989 (Cth): s 116, 117, 121, 122, 123, 124
Gyselman & Gyselman (1992) FLC 92-279
Wilde & Ballard (1997) FLC 92-771
APPELLANT: Ms Saberton
RESPONDENT: Mr Saberton
FILE NUMBER: SYC 6689 of 2010
APPEAL NUMBER: EA 115 of 2012

DATE DELIVERED:

7 June 2013
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ryan, Murphy & Loughnan JJ
HEARING DATE: 22 March 2013 and by way of written submissions received by both parties on 3 April 2013
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 10 August 2012
LOWER COURT MNC: [2012] FamCA 870

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Lethbridge SC
SOLICITOR FOR THE APPELLANT: Robyn Sexton & Associates
FOR THE RESPONDENT: Mr Saberton in Person

Orders

  1. That the application for leave to appeal Order 13 of the orders made by the Honourable Justice Cleary on 10 August 2012 be allowed.

  2. That the appeal be allowed.

  3. That Order 13 of the orders made by the Honourable Justice Cleary on 10 August 2012 be set aside.

  4. That the competing applications for the parties for departure orders under the Child Support Assessment Act 1989 (Cth) be remitted for hearing by a judge other than the Honourable Justice Cleary.

  5. That the application to adduce further evidence in support of the appeal be dismissed.

  6. That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.

  7. The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the…

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SABERTON & SABERTON [2013] FamCAFC 89
Case
[2013] FamCAFC 89
Decision Date

CaseChat Overview and Summary

In the case of Saberton & Saberton, the parties were involved in a family law dispute concerning child support orders under the Child Support (Assessment) Act 1989 (Cth). The proceedings originated in the Federal Circuit Court and were later appealed to the Family Court of Australia. The central issue in the appeal was whether the court retained jurisdiction under section 116 of the Assessment Act to determine a remitted application once all other aspects of the proceedings had been finalised. Additionally, the court needed to decide if it was just and equitable to make a departure order from an administrative assessment under section 117 of the Assessment Act when there were no findings made regarding the matters the court must be satisfied with before making such an order.

The Family Court of Australia found that the jurisdiction to make orders pursuant to section 116 of the Assessment Act continues from when the order is made until the completion of the judicial process. Consequently, the court had the authority to address the remitted application. Furthermore, the court determined that it was not just and equitable to make a departure order without findings on the necessary matters, leading to the allowance of the appeal. The order made by Justice Cleary on 10 August 2012 was set aside, and the matter was remitted for rehearing by a different judge.

The court granted the wife leave to appeal and allowed the appeal, setting aside the order in question and remitting the matter for a new hearing. The wife was also granted a costs certificate for the appeal, and each party received a costs certificate for the new trial ordered. These orders reflect the court's decision to ensure that the proceedings were properly managed and that the parties' costs were appropriately considered.

Orders

Orders of the court

1.

That the application for leave to appeal Order 13 of the orders made by the Honourable Justice Cleary on 10 August 2012 be allowed.

2.

That the appeal be allowed.

3.

That Order 13 of the orders made by the Honourable Justice Cleary on 10 August 2012 be set aside.

4.

That the competing applications for the parties for departure orders under the Child Support Assessment Act 1989 (Cth) be remitted for hearing by a judge other than the Honourable Justice Cleary.

5.

That the application to adduce further evidence in support of the appeal be dismissed.

6.

That the Court grants to the appellant wife a costs certificate in relation to the appeal pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate stating that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of such part as the Attorney-General considers appropriate of the costs incurred by the appellant in relation to the appeal.

7.

The Court grants to each of the parties a costs certificate pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

8.

Certify for counsel.

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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