FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEVENSON & BOTHWELL | [2014] FCCA 1509 |
| Catchwords: CHILD SUPPORT – Application by non-parent carer for s.106A declaration under Child Support (Assessment) Act 1989 and declaration of parentage under s.69VA of the Family Law Act 1975 – application for extension of time to file. |
| Legislation: Child Support (Assessment) Act 1989, ss.4, 7B, 25A,106A |
| G v H [1994] HCA 48 Letsos & Vakros [2012] FamCAFC 40 McMahon and McMahon (1976) FLC 90-038 OP & HM (2002) FamCA 454 Tormsen v Tormsen (1993) FLC 92-392 V & V [2002] FMCAfam 408 |
| Applicant: | MR STEVENSON |
| Respondent: | MR BOTHWELL |
| File Number: | SYC 7520 of 2013 |
| Judgment of: | Judge Sexton |
| Hearing date: | 19 June 2014 |
| Date of Last Submission: | 4 July 2014 |
| Delivered at: | Sydney |
| Delivered on: | 14 July 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Commission NSW |
| Solicitors for the Respondent: | No appearance |
ORDERS AND DECLARATIONS
Leave be granted to the Applicant to file an application pursuant to s.106A of the Child Support (Assessment) Act 1989 out of time.
The extension of time in Order (1) apply in relation to the Application for child support refused by the Child Support Agency in their letter of 24 March 2011.
Pursuant to s.69VA of the Family law Act 1975 the Court declares that the Respondent, MR BOTHWELL, is the father of the children, X and Y, twins born on (omitted) 2009.
Pursuant to s.106A of the Child Support (Assessment) Act 1989 the Court declares that the Respondent, MR BOTHWELL, should be assessed in relation to the costs of the Children X and Y, born (omitted) 2009, as a parent of the Children.
Within 28 days the Respondent pay the Applicant's costs in the sum of $500 to the Legal Aid Commission of NSW.
IT IS NOTED that publication of this judgment under the pseudonym Stevenson & Bothwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 7520 of 2013
| MR STEVENSON |
Applicant
And
| MR BOTHWELL |
Respondent
REASONS FOR JUDGMENT
This application is brought by the carer of twins named Y and X for declarations under section 106A of the Child Support (Assessment) Act 1989 and section 69VA of the Family Law Act 1975. The Applicant also seeks an order for an extension of time to file his application to the date of filing, being 18 December 2013.
Since November 2011, the twins have had their names registered as Y and X.[1]
[1] Annexure H to Applicant’s affidavit sworn on 5 December 2013
The Applicant deposes to the Respondent being the biological father of the twins.
The Applicant's originating application first came before the Court on 7 February 2014 when both parties appeared represented. Orders were made by consent on that day for the parties to submit to DNA testing to determine whether the Respondent is the father of the twins. The…
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- AGLC
- Stevenson and Bothwell [2014] FCCA 1509
- Case
- [2014] FCCA 1509
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Stevenson had, through their conduct, waived their right to enforce the contractual deadline for payment of the balance of the purchase price. This involved an examination of the principles of waiver and estoppel in contract law, particularly in the context of land sale agreements where time is often of the essence.
Sexton J found that Stevenson had indeed waived their right to strict performance of the payment date. The court reasoned that Stevenson's conduct, specifically their communication with Bothwell after the due date had passed, indicated an intention to treat the contract as still on foot and to grant an extension for payment. This conduct, coupled with Bothwell's reliance on that indication, gave rise to an equitable estoppel, preventing Stevenson from subsequently rescinding the contract based on the original deadline. The court therefore dismissed Stevenson's application for rescission.
Orders
Orders of the court
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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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