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 Griffiths v Boral Resources (Qld) Pty Ltd (2006) 154 FCR 554 |
Masters &Cheyne (2016) FLC 98-072
Venson & Venson (No 2) [2010] FamCA 963
| APPLICANT: | Ms Telama |
| RESPONDENT: | Mr Telama |
| FILE NUMBER: | SYC | 1450 | of | 2008 |
| APPEAL NUMBER: | EA | 167 | of | 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…
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- AGLC
- Telama and Telama (No 2) [2017] FamCAFC 194
- Case
- [2017] FamCAFC 194
- Decision Date
CaseChat Overview and Summary
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
1.
The applicant be given leave to appeal.
2.
The appeal against Orders 1 and 2 dated 30 August 2016 be allowed.
3.
Orders 1 and 2 dated 30 August 2016 be set aside.
4.
That the proceedings be remitted to the Federal Circuit Court for re-hearing by a judge other than Judge Henderson.
5.
There be no order as to costs.
6.
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.
7.
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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