SH and BP - [2002] FMCAfam 302

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SH & BP

[2002] FMCAfam 302

FAMILY LAW – Child support – application for summary dismissal.

Child Support (Assessment) Act 1989, s.115

Reid v Reid (1999) FLC 98-007
Delane and Hageraats (2000) FLC 98-012
McGuinness and Cowrie [2002] FMCAfam 57, [2002] FamCA 461

Applicant:

H S

Respondent:

PJ B

File No:

PAM1372 of 2002

Delivered on:

13 September 2002

Delivered at:

Parramatta

Hearing Date:

21 August 2002

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Kearney

Solicitors for the Applicant:

Watts McCray

Solicitors for the Respondent:

Mr Karras
Karras Partners
Solicitors

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

PAM 1372 of 2002

H S

Applicant

And

PJ B

Respondent

REASONS FOR JUDGMENT

This is an application by the Respondent for summary dismissal of an Application for a departure from the provisions of the Child Support (Assessment) Act 1989 brought by the Applicant wife. In the alternative, the Respondent seeks that the Court should decline to exercise its discretion to hear the Departure Application in conjunction with an application to vary certain contact orders filed by the Applicant Wife on 18^th April 2002.

Background

The proceedings concern the parties’ child N, who was born on 11^th October 1993. On 23^rd December 1998, the Family Court of Australia at Melbourne made a number of orders by consent, providing that the child should live with the wife and that the husband should have contact with the child at certain times. Those orders have been registered at this Court.
On 18^th April 2002, the wife filed at this Court an Application to vary those orders. The Application was returnable on 27^th May 2002. The Application was adjourned by consent to 5^th June, and then to 24^th June 2002. On that latter date, the wife was represented by a solicitor,

Mr Watts, and the husband was not legally represented.
When the matter came before the Court on 24^th June, after some discussions between the wife’s solicitor and the husband, some terms of settlement were prepared, which provided for final orders for contact covering most of the contact issues that were in dispute. The Court was informed by the wife’s solicitor that there were two issues relating to contact that were still unresolved, and an issue relating to the level of child support payable by the husband. The Terms of Settlement provided for the matter to be set down for hearing in respect of the Application “filed 27 May 2002” (although the Application was actually filed on 18^th April, the 27^th May was the return date). The Terms also contained the following Order:
“17. That the Mother be given leave to file an application pursuant to Section 115 Child Support (Assessment) Act.”
As a result, the Court made some directions for filing documents, and the matter was listed for hearing on Wednesday 21^st August 2002. The wife did indeed file a Departure Application pursuant to the…

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 SH and BP

Details

AGLC: SH and BP [2002] FMCAfam 302
Case: [2002] FMCAfam 302
Decision Date: 13 September 2002

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, H S (the Applicant) brought an application against PJ B (the Respondent) for a departure from the provisions of the Child Support (Assessment) Act 1989. The application arose from a dispute over child support and contact arrangements concerning their child N, born on 11th October 1993. The Family Court of Australia at Melbourne had previously made consent orders in December 1998, granting the wife custody of the child and specifying the husband's contact times. On 18th April 2002, the wife filed an application to vary these orders, which was adjourned and eventually settled on most contact issues. However, two unresolved contact issues and the level of child support remained.

The court had to decide whether it had jurisdiction to hear the child support application, and if so, whether it should exercise its discretion to hear it concurrently with the contact proceedings. The Respondent argued that the court lacked jurisdiction or should not exercise its discretion to hear the application together with the other proceedings. The Applicant countered that the court had the jurisdiction to hear the application and that the Respondent had consented to the application being filed and heard together.

The court held that the principles governing the exercise of the power to dismiss an application summarily have been considered by the High Court and the Full Court of the Family Court of Australia. The power should be reserved for cases which cannot possibly succeed. If there is an arguable case, summary dismissal is inappropriate. Even a weak case is entitled to a hearing. The court also held that the Respondent had consented to the applicant being given leave to file an application pursuant to section 115 Child Support (Assessment) Act. The court refused the Respondent's application to dismiss the Amended Departure Application and to decline to exercise its jurisdiction under section 115(c) of the Child Support (Assessment) Act.

Orders