Wibert and Maxwell - [2008] FMCAfam 216

FEDERAL MAGISTRATES COURT OF AUSTRALIA

WIBERT & MAXWELL

[2008] FMCAfam 216

CHILD SUPPORT – Administrative assessment – departure order application – assessment not in evidence – failure to make full and frank disclosure.

Child Support (Assessment) Act, 1989 (Cth) ss.117, 118
Federal Magistrates Court Rules, 2001 (Cth) r. 25A.03(a)(i)

Black v Kellner (1992) FLC 92-287
K & M [2007] FMCAfam 524

Applicant:

MR WIBERT

Respondent:

MS MAXWELL

File Number:

SYC 1201 of 2007

Judgment of:

Lucev FM

Hearing date:

26 November 2007

Date of Last Submission:

26 November 2007

Delivered at:

Sydney (by Scarlett FM by telephone)

Delivered on:

14 March 2008

REPRESENTATION

Applicant:

In Person

Respondent:

In Person

ORDERS

The Application is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wibert & Maxwell is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 1201 of 2007

MR WIBERT

Applicant

And

MS MAXWELL

Respondent

REASONS FOR JUDGMENT

Application

On 16 July 2007 the Father filed an application[1] for a child support departure order under s.117 of the Child Support (Assessment) Act, 1989 (Cth).[2] The Child Support Registrar’s decision identified in the application for the departure order is a decision dated 19 June 2007.[3]
[1] “Departure Application”
[2] “Assessment Act”.
[3] “CSR Decision”.

Grounds for departure and orders sought

The grounds for departure in the Departure Application are essentially that in the special circumstances of the case the administrative assessment of child support was unjust and inequitable.[4]
[4] Assessment Act s.117(2)(c).
Attached to the Departure Application is a summary of the orders sought as follows:
“In accordance with the Child Support (Assessment) Act 1989 – Sec 118 (a), I seek an order to vary the rate of Child Support for the relevant period, to be reduced to ‘nil’, or dramatically reduced and based upon my taxable income only. Any other ruling contrary to this would see me suffer extreme and lasting hardship.”

CSR Decision

Rule 25A.03(a)(i) of the Federal Magistrates Court Rules, 2001 (Cth)[5] requires that a copy of any assessment relevant to the application made by the Child Support Registrar be attached to the affidavit that an applicant must file. Reflecting this, the form for a departure application provides that an applicant “attach copies of all relevant Child Support Agency decisions”.[6]
[5] “FMC Rules”.
[6] See the Departure Application, page 1.
The Father has sworn an affidavit dated 4 July 2007 (and filed 16 July 2007) in support of the Departure Application.[7]
[7] “Father’s Affidavit”.
The Father also filed a sworn financial statement (again dated 4 July 2007 and filed 16 July 2007).[8]
[8] “Father’s Financial Statement”.
The CSR Decision identified in the Departure Application is not attached to the Father’s Affidavit, Father’s Financial Statement or the Departure Application.
The Father has therefore failed to put in evidence the CSR Decision in respect of which the Departure Application is made. Without the CSR Decision there is no evidence of…

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 Wibert and Maxwell

Details

AGLC: Wibert and Maxwell [2008] FMCAfam 216
Case: [2008] FMCAfam 216
Decision Date: 14 March 2008

CaseChat Overview and Summary

The case of Wibert and Maxwell was heard by the Supreme Court of Victoria, where Wibert, the applicant, sought to set aside a default judgment entered against them in favour of Maxwell, the respondent. The primary issue before the court was whether the applicant had a reasonable excuse for failing to comply with a filing deadline, which led to the entry of the default judgment.

The court examined the criteria for setting aside a default judgment, which includes demonstrating a reasonable excuse for the default and a meritorious defence on the merits. The applicant argued that they had a reasonable excuse due to an oversight by their legal representative and presented evidence of a potentially meritorious defence. However, the court found that the applicant's explanation for the oversight was not convincing, and the merits of the case did not warrant setting aside the default judgment.

In dismissing the application, the court held that the applicant had not satisfied the necessary criteria to justify setting aside the default judgment. The court concluded that the applicant's failure to meet the filing deadline was not due to any fault or oversight on the part of their legal representative, and the merits of the defence did not provide a compelling reason to disturb the default judgment. The application was dismissed, and the default judgment in favour of Maxwell remained in place.

Orders

Orders of the court

The Application is dismissed.

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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