Vilas & Vilas (No 2) - [2024] FedCFamC1F 899

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vilas & Vilas (No 2) [2024] FedCFamC1F 899

File number(s): NCC 3703 of 2019

Judgment of: SMITH J

Date of judgment: 11 December 2024

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant husband first sought orders pursuant to the Child Support (Assessment) Act 1989 (Cth) in an Amended Initiating Application filed less than two months prior to Final Hearing – where the respondent wife objected on both jurisdictional and procedural fairness grounds - where jurisdictional ground unclear – finding that wife was not given procedural fairness to address the claim at the final hearing – in circumstances where final hearing is likely to be stood-over part-heard – judicial determination as to whether the husband may seek child support departure orders stood-over to a later date

Legislation:
Child Support (Assessment) Act 1989 (Cth), Pt 7, ss 117, 123A

Family Law Act 1975 (Cth), Pt VIII, s 75

Federal Circuit and Family Court of Australia Act 2021 (Cth), Pts 3, 4, ss 50, 54

Cases cited:
Gilford & Cavaco [2024] FedCFamC1A 55

Vang & Chung (No 3) [2024] FedCFamC1A 199

Division: Division 1 First Instance

Number of paragraphs: 26

Date of hearing: 2-11 December 2024

Place: Newcastle

Counsel for the Applicant, Fourth and Fifth Respondents: Mr Wong together with Mr Butters

Solicitor for the Applicant, Fourth and Fifth Respondents: Millyard Family Lawyers

Counsel for the First Respondent: Mr Bithrey together with Ms Evelyn

Solicitor for the First Respondent: Clarity Lawyers

Counsel for the Second and Third Respondents: Mr Sansom SC together with Mr Bland

Solicitor for the Second and Third Respondents: Evans & Wislang
ORDERS

NCC 3703 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR VILAS

Applicant

AND:
MS VILAS

First Respondent

B2 PTY LTD

Second Respondent

B1 PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SMITH J

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:
1.Judicial determination as to whether the applicant’s Fourth Amended Initiating Application filed 18 October 2024 is to be accepted with respect to orders sought pursuant to the Child Support (Assessment) Act 1989 (Cth) is stood-over to a later date.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Vilas & Vilas has been approved pursuant to subsection 114Q(2)…

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 Vilas & Vilas (No 2)

Details

AGLC: Vilas & Vilas (No 2) [2024] FedCFamC1F 899
Case: [2024] FedCFamC1F 899
Decision Date: 11 December 2024

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Mr Vilas, the husband, sought orders for child support under the Child Support (Assessment) Act 1989 (Cth). Ms Vilas, the wife, and other respondents opposed the application. The case came before Smith J at the final hearing. The wife objected on jurisdictional and procedural fairness grounds, though the jurisdictional basis was unclear. The primary issue was whether the husband could seek child support orders at the final hearing, given that the application was made less than two months prior to the hearing.

Smith J considered that the wife had not been afforded procedural fairness to address the husband's application. The court noted that the final hearing was likely to be stood-over part-heard, making it inappropriate to decide the application at that time. Consequently, the court determined that the judicial determination as to whether the husband's application should be accepted would be stood-over to a later date. The court's decision was made in light of the procedural fairness concerns and the potential for the hearing to be part-heard.

Smith J made an order that the judicial determination regarding the husband's application for child support orders would be stood-over to a later date. This decision was made to ensure that the wife had adequate opportunity to address the application, respecting the principles of procedural fairness. The form of the order was subject to entry in the Court's records and potential review or variation under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Orders

Orders of the court

NCC 3703 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR VILAS

Applicant

AND:

MS VILAS

First Respondent

B2 PTY LTD

Second Respondent

B1 PTY LTD (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

SMITH J

DATE OF ORDER:

11 DECEMBER 2024

THE COURT ORDERS THAT:

1. Judicial determination as to whether the applicant’s Fourth Amended Initiating Application filed 18 October 2024 is to be accepted with respect to orders sought pursuant to the Child Support (Assessment) Act 1989 (Cth) is stood-over to a later date.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NCC 3703 of 2019
Judgment of:	SMITH J
Date of judgment:	11 December 2024
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Where applicant husband first sought orders pursuant to the Child Support (Assessment) Act 1989 (Cth) in an Amended Initiating Application filed less than two months prior to Final Hearing – where the respondent wife objected on both jurisdictional and procedural fairness grounds - where jurisdictional ground unclear – finding that wife was not given procedural fairness to address the claim at the final hearing – in circumstances where final hearing is likely to be stood-over part-heard – judicial determination as to whether the husband may seek child support departure orders stood-over to a later date
Legislation:	Child Support (Assessment) Act 1989 (Cth), Pt 7, ss 117, 123A Family Law Act 1975 (Cth), Pt VIII, s 75 Federal Circuit and Family Court of Australia Act 2021 (Cth), Pts 3, 4, ss 50, 54
Cases cited:	Gilford & Cavaco [2024] FedCFamC1A 55 Vang & Chung (No 3) [2024] FedCFamC1A 199
Division:	Division 1 First Instance
Number of paragraphs:	26
Date of hearing:	2-11 December 2024
Place:	Newcastle
Counsel for the Applicant, Fourth and Fifth Respondents:	Mr Wong together with Mr Butters
Solicitor for the Applicant, Fourth and Fifth Respondents:	Millyard Family Lawyers
Counsel for the First Respondent:	Mr Bithrey together with Ms Evelyn
Solicitor for the First Respondent:	Clarity Lawyers
Counsel for the Second and Third Respondents:	Mr Sansom SC together with Mr Bland
Solicitor for the Second and Third Respondents:	Evans & Wislang

NCC 3703 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR VILAS Applicant
AND:	MS VILAS First Respondent B2 PTY LTD Second Respondent B1 PTY LTD (and others named in the Schedule) Third Respondent

ORDER MADE BY:	SMITH J
DATE OF ORDER:	11 DECEMBER 2024