V & V - [2002] FMCAfam 408

FEDERAL MAGISTRATES COURT OF AUSTRALIA

V & V

[2002] FMCAfam 408

FAMILY LAW – Child support – application for extension of time in which to seek a declaration pursuant to s.107 of the Child Support (Assessment) Act 1989 on the ground that the Applicant is not the biological parent – extension of time granted – factors taken into account in the exercise of discretion.

Applicant:

B V

Respondent:

V V

File No:

(P)MLM 8040 of 2002

Delivered on:

19 November 2002

Delivered at:

Melbourne

Hearing Date:

19 November 2002

Judgment of:

Bryant CFM

REPRESENTATION

Counsel for the Applicant:

Mr D. McSteen

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the Respondent:

Ms V. V appeared on her own behalf

Solicitors for the Respondent:

In person

ORDERS

IT IS ORDERED

THAT pursuant to Order 31 Rule B(10) of the Family Law Rules, the time in which the Applicant has to file and Application pursuant to Section 107 of the Child Support (Assessment) Act 1989 be extended to 17 September 2002.

IT IS DECLARED

THAT pursuant to Section 107 of the Child Support (Assessment) Act 1989 the Respondent V V is not a person entitled to an Administrative Assessment of child support payable by the Applicant for the child
L J V born 25 February 1994.

IT IS FURTHER ORDERED

THAT the Applicant’s Application pursuant to Section 143 of the Child Support (Assessment) Act 1989 be adjourned to 14 January 2003 at 10.00am for hearing in the Child Support List.
THAT the Respondent file and serve a Financial Statement and any Application pursuant to Section 66M of the Family Law Act 1975 which she intends to file on or before 4.00pm on 3 January 2003.
THAT the reasons for judgment be transcribed and a copy be provided to each of the parties.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

(P)MLM 8040 of 2002

B V

Applicant

And

V V

Respondent

REASONS FOR JUDGMENT

I am dealing this morning with an application by the husband pursuant to the Child Support Assessment Act in relation to the child L J V born 25 February 1994. The husband is represented and the wife appears in person. The Applicant and Respondent were married on 13 December 1987 and separated in December 2000
The application by the husband seeks firstly, an order pursuant to order 31B rule 10 of the Family Law Rules, which apply in these proceedings, to extend the time in which he can make application. The application that he then makes is that the court make a declaration pursuant to section 107 of the Child Support Assessment Act that the respondent is not a person entitled to an administrative assessment of child support for the child, L J V, who was born 25 February 1994 on the ground that he is not the biological parent of the child.
He then seeks that pursuant to section 143 of the Child Support Assessment Act the respondent repay to him money that he has paid for…

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.

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Details

AGLC: V & V [2002] FMCAfam 408
Case: [2002] FMCAfam 408
Decision Date: 19 November 2002

CaseChat Overview and Summary

The case involved an application under the Child Support (Assessment) Act 1989 by L J V, seeking an extension of time to file an application for an administrative assessment of child support payable by the respondent, V V. The matter was heard in the Family Court of Australia. The applicant sought an extension to file and administrative assessment of child support payable by the respondent, V V, for their child, L J V, born on 25 February 1994. Additionally, the applicant sought a declaration that the respondent was not entitled to an administrative assessment of child support.

The court was required to determine whether the applicant was entitled to an extension of time to file an application for an administrative assessment of child support, and if the respondent was entitled to such an assessment. The court considered the applicant's request for an extension of time, the respondent's entitlement to an administrative assessment of child support, and the need for further evidence and submissions from both parties. The court found that the applicant was entitled to an extension of time to file an application for an administrative assessment of child support, and that the respondent was not entitled to an administrative assessment of child support. The court also ordered that the applicant's application be adjourned to allow for further evidence and submissions from both parties.

The court ordered that the time in which the applicant had to file an application pursuant to Section 107 of the Child Support (Assessment) Act 1989 be extended to 17 September 2002. The court also declared that the respondent was not entitled to an administrative assessment of child support payable by the applicant for their child, L J V. The court further ordered that the applicant's application be adjourned to allow for further evidence and submissions from both parties, and that the respondent file and serve a Financial Statement and any application pursuant to Section 66M of the Family Law Act 1975 on or before 4.00pm on 3 January 2003. The court also ordered that the reasons for judgment be transcribed and a copy be provided to each of the parties.

Orders

Orders of the court

IT IS ORDERED

THAT pursuant to Order 31 Rule B(10) of the Family Law Rules, the time in which the Applicant has to file and Application pursuant to Section 107 of the Child Support (Assessment) Act 1989 be extended to 17 September 2002.

IT IS DECLARED

THAT pursuant to Section 107 of the Child Support (Assessment) Act 1989 the Respondent V V is not a person entitled to an Administrative Assessment of child support payable by the Applicant for the child

L J V born 25 February 1994.

IT IS FURTHER ORDERED

THAT the Applicant’s Application pursuant to Section 143 of the Child Support (Assessment) Act 1989 be adjourned to 14 January 2003 at 10.00am for hearing in the Child Support List.

THAT the Respondent file and serve a Financial Statement and any Application pursuant to Section 66M of the Family Law Act 1975 which she intends to file on or before 4.00pm on 3 January 2003.

THAT the reasons for judgment be transcribed and a copy be provided to each of the parties.

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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