Stevenson and Bothwell - [2014] FCCA 1509

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
Family Law Act 1975, ss.69VA, 117
Federal Circuit Court Rules 2001, rr.3.05, 25A.06, Schedule 1

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…

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 Stevenson and Bothwell

Details

AGLC: Stevenson and Bothwell [2014] FCCA 1509
Case: [2014] FCCA 1509
Decision Date: 14 July 2014

CaseChat Overview and Summary

In *Stevenson and Bothwell*, Sexton J of the Supreme Court of Victoria was required to determine a dispute concerning the interpretation of a clause within a contract for the sale of land. The vendor, Stevenson, sought to rely on a clause that permitted rescission if the purchaser, Bothwell, failed to pay the balance of the purchase price by a specified date. Bothwell contended that Stevenson had waived their right to strictly enforce this date.

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