Telama and Telama (No 2) - [2017] FamCAFC 194

FAMILY COURT OF AUSTRALIA

TELAMA & TELAMA (NO. 2)

[2017] FamCAFC 194

FAMILY LAW – APPEAL – CHILD SUPPORT – Binding child support agreement – Appeal against decision to set aside a binding child support agreement pursuant to s 136(d) of the Child Support (Assessment) Act 1989 (Cth) – Non-disclosure of evidence as required under a Notice to Produce and the Federal Circuit Court Rules 2001 (Cth) – Whether there was sufficient evidence for the primary judge to find exceptional circumstances and hardship – Appeal allowed.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – Leave granted.

FAMILY LAW – APPEAL – COSTS – No application for costs against the respondent – Application for a certificate under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing granted.

Child Support (Assessment) Act 1989 (Cth) s 136
Federal Circuit Court Rules 2001 (Cth) rr 24.03, 25A.08(2)

Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554
Hardman & Hardman [2003] FamCA 1057
Keane v Keane (2013) 50 Fam LR 120

Masters &Cheyne (2016) FLC 98-072
Venson & Venson (No 2) [2010] FamCA 963

APPLICANT:

Ms Telama

RESPONDENT:

Mr Telama

FILE NUMBER:

SYC

1450

2008

APPEAL NUMBER:

167

2016

DATE DELIVERED:

15 September 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Kent & Cleary JJ

HEARING DATE:

4 September 2017

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

30 August 2016

LOWER COURT MNC:

[2016] FCCA 2375

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Sansom SC

SOLICITOR FOR THE APPLICANT:

Harris Freidman Lawyers

THE RESPONDENT:

In person

Orders

The applicant be given leave to appeal.
The appeal against Orders 1 and 2 dated 30 August 2016 be allowed.
Orders 1 and 2 dated 30 August 2016 be set aside.
That the proceedings be remitted to the Federal Circuit Court for re-hearing by a judge other than Judge Henderson.
There be no order as to costs.
That the court grants to the applicant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, would be appropriate for the Attorney General to authorise a payment under that Act to the applicant in respect of the costs incurred by her in relation to the appeal.
That the court grants to the applicant 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, would be appropriate for the Attorney General to authorise a payment under that Act to the applicant in respect of the costs incurred by her in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Telama & Telama has been approved by the Chief Justice pursuant to s…

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 Telama and Telama (No 2)

Details

AGLC: Telama and Telama (No 2) [2017] FamCAFC 194
Case: [2017] FamCAFC 194
Decision Date: 15 September 2017

CaseChat Overview and Summary

The matter of Telama and Telama (No 2) involved an appeal against a decision to set aside a binding child support agreement, made under section 136(d) of the Child Support (Assessment) Act 1989 (Cth). The appeal was heard by the Family Court of Australia, with the Court granting leave to appeal and subsequently allowing the appeal against the original decision. The appellant, Telama, argued that there were exceptional circumstances and hardship warranting the setting aside of the binding child support agreement. The primary judge had determined that there were no exceptional circumstances or hardship sufficient to justify setting aside the agreement, a decision which Telama contested.

The legal issues before the court revolved around the non-disclosure of evidence required under a Notice to Produce and the Federal Circuit Court Rules 2001 (Cth). Telama argued that this non-disclosure amounted to exceptional circumstances justifying the setting aside of the agreement. The court was required to determine whether there was sufficient evidence to find that the circumstances were exceptional and whether the non-disclosure had resulted in hardship. Additionally, the court considered whether the primary judge had erred in not granting leave to appeal, and whether the costs incurred by Telama during the appeal and rehearing warranted a certificate under the Federal Proceedings (Costs) Act 1981 (Cth).

The court found that the non-disclosure of evidence was significant and constituted exceptional circumstances. The failure to produce the required evidence impacted the fairness of the proceedings and resulted in hardship. Consequently, the court allowed the appeal, set aside the orders of 30 August 2016, and remitted the case to the Federal Circuit Court for re-hearing by a different judge. The court also granted leave to appeal and issued certificates under the Federal Proceedings (Costs) Act 1981 (Cth) for the appeal and rehearing, allowing for potential reimbursement of costs incurred by Telama. No order was made regarding costs between the parties.

Orders

Orders of the court

The applicant be given leave to appeal.

The appeal against Orders 1 and 2 dated 30 August 2016 be allowed.

Orders 1 and 2 dated 30 August 2016 be set aside.

That the proceedings be remitted to the Federal Circuit Court for re-hearing by a judge other than Judge Henderson.

There be no order as to costs.

That the court grants to the applicant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the court, would be appropriate for the Attorney General to authorise a payment under that Act to the applicant in respect of the costs incurred by her in relation to the appeal.

That the court grants to the applicant 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, would be appropriate for the Attorney General to authorise a payment under that Act to the applicant in respect of the costs incurred by her in relation to the rehearing.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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