FAMILY COURT OF AUSTRALIA
| ZHAO & XIE | [2008] FamCAFC 187 |
| FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – Where error of principle established – Application granted. FAMILY LAW - APPEAL – CHILD SUPPORT – LUMP SUM – UNDEFENDED HEARING – Where hearing before Federal Magistrate proceeded on an “undefended” basis – Where reasons failed to disclose consideration of all relevant factors including the prejudice to either party in proceeding “undefended” – Where mother sought lump sum child support for three children – Whether lump sum child support sought in substitution for administrative assessment – Whether Federal Magistrate failed to consider relevant matters required by the legislation – Whether failure to comply with requirements of s 125 of the Child Support (Assessment) Act 1989 constituted appealable error – Where reasons for judgment were inadequate – Appeal allowed in part and matter remitted for rehearing. FAMILY LAW - APPEAL – COSTS – Where appeal against orders for costs for two interim hearings and for the hearing that proceeded “undefended” – Appeal against the former orders dismissed – In light of the partial success of the appeal, the appeal against the costs order in relation to the “undefended” hearing was allowed. FAMILY LAW - COSTS – Where error of principle found – Both parties awarded costs certificates for the appeal and the rehearing. |
| Child Support (Assessment) Act 1989 (Cth) – s 117, s 121, s 123, s 124, s 125, s 126 s 128 Family Law Act 1975 (Cth) – s 66L, s 79, s 94AAA(3), s 94AAA(6) Family Law Rules 2004 (Cth) – r 10.12, 11.02(2) Federal Magistrates Act 1999 (Cth) – s 3, s 17A Federal Magistrates Court Rules 2001 – r 13.03A, r 13.07, r 16.01 Federal Proceedings (Costs) Act 1981 (Cth) – s 6, s 8, s 9 |
| Allesch v Maunz (2000) 203 CLR 172; (2000) FLC 93-033 Bennett & Bennett (1991) FLC 92-191 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hendy v Deputy Child Support Registrar & Webb (2001) 27 Fam LR 641 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 Ivanovic & Ivanovic (1996) FLC 92-689 Kaljo & Kaljo (1978) FLC 90-445 Lightfoot & Hampson (1996) FLC 92-663 Lujans v Yarrabee Coal Company Pty Ltd (2008) 249 ALR 663; [2008] HCA 51 (16 October 2008) Prpic & Prpic (1995) FLC 92-574 R & R (No 1) (2002) FMCAfam 153 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 State of Queensland v JL Holdings Pty Ltd (1996-1997) 189 CLR 146 Taylor v Taylor (1979-1980) 143 CLR 1 Wild v Ballard (1997) FLC 92-771 Zane & Allan [2008] FamCAFC 115 |
| APPELLANT: | Mr Zhao |
| RESPONDENT: | Ms Xie |
| FILE NUMBER: | SYM | 4331 | of | 2006 |
| APPEAL NUMBER: | EA | 56 | of | 2007 |
| DATE DELIVERED: | 28 November 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Boland J |
| HEARING DATE: | 29 July 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 7… |
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- Zhao & Xie [2008] FamCAFC 187
- Case
- [2008] FamCAFC 187
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the Federal Magistrate's reasons for judgment adequately considered all relevant factors as required by legislation, specifically section 125 of the Child Support (Assessment) Act 1989. It was also necessary to assess whether the failure to consider these factors constituted an appealable error. Additionally, the court examined the costs orders for two interim hearings and the "undefended" hearing, and whether the appeal against these costs was justified.
The court found that the Federal Magistrate's reasons for judgment were inadequate, as they failed to properly consider all relevant factors, including the impact of the proceeding being "undefended". This was deemed an error of principle and constituted an appealable error. Consequently, the appeal was allowed in part, and the orders were set aside. The court remitted the mother's application for rehearing, either by the original Federal Magistrate or the one currently responsible for the matter. The appeal against the costs orders for the interim hearings was dismissed, but the appeal against the costs order for the "undefended" hearing was allowed due to the partial success of the appeal.
The court ordered that leave to appeal the original orders be granted, and the appeal be allowed in part. It set aside specific orders and remitted the mother's application for rehearing. The court also granted costs certificates to both parties for the appeal and for the new trial ordered, under the Federal Proceedings (Costs) Act 1981 (Cth).
Orders
Orders of the court
1.
That leave be granted to appeal orders made by Federal Magistrate Housego on 7 March 2007.
2.
That the appeal be allowed in part.
3.
That Orders 6, 11, 16 and 19 of the orders made on 7 March 2007 be set aside.
4.
That the mother’s application filed 10 October 2005 be remitted for rehearing on a basis to be determined by Federal Magistrate Housego if the matter remains in her docket or otherwise remitted to the Federal Magistrate now having responsibility for this matter.
5.
That the Court grants to the appellant father a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by him in relation to the appeal.
6.
The Court grants to the respondent mother a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by her in relation to the appeal.
7.
The Court grants to each of the parties 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, it would be appropriate for the Attorney-General to authorise a payment under that Act to each of the parties in respect of the costs incurred by them in relation to the new trial ordered.
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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