BABETT & FALCONER

[2014] FamCAFC 194

FAMILY COURT OF AUSTRALIA

BABETT & FALCONER [2014] FamCAFC 194

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application in an appeal for expedition – Child support departure – where the husbands income has reduced – where the reduction in the husbands income was not contested by the wife – where the matter is appropriate for expedition.

FAMILY LAW – APPEAL – Application in an appeal to adduce further evidence – Where the application will be heard by the Full Court.

Family Law Act 1975 (Cth)

APPELLANT: Mr Babett

RESPONDENT: Ms Falconer

FILE NUMBER: SYC 6278 of 2011

APPEAL NUMBER: EA 179 of 2013

DATE DELIVERED: 2 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 23 September 2014

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 25 July 2014

LOWER COURT MNC: [2013] FCCA 1845

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Mr Edwards of Maurice Edwards of Watts McCray Lawyers

THE RESPONDENT: In person by telephone

Orders

1. Appeal EA 179 of 2013 against orders 13, 14, 15, 16 and 17 of the orders of Judge Scarlett made on 13 November 2013 be expedited.

2. The expedited appeal be listed for hearing before the Full Court on a date and time to be confirmed by the Appeals Registrar.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Babett & Falconer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 179 of 2013
File Number:  SYC 6278 of 2011

Mr Babett

Appellant

and

Ms Falconer

Respondent

REASONS FOR JUDGMENT

1. The husband has appealed against certain orders made by Judge Scarlett on 13 November 2013.  The orders appealed relate to property settlement orders dealing with the husband’s superannuation fund and to Child Support departure orders made by the judge.

2. By application in an appeal filed on 5 September 2014, the husband seeks three orders:

   1.        That the hearing of the appeal be expedited.

   2.        That leave be granted to adduce further evidence on the appeal.

   3.        That orders 13,14,15,16 and 17 made by Judge Scarlett be stayed               pending the determination of the appeal.

3. Expedition of the appeal was granted for reasons which I will shortly outline. 

4. In accordance with usual practice, the application to adduce further evidence on the appeal will be fall to be determined by the Full Court that hears the appeal and thus this application was not determined.

5. As to the stay of the orders made by Judge Scarlett, on 3 March 2014, by application in a case, the husband sought a stay of his orders from the judge.  His Honour reserved his decision.  No decision has been received.  The husband’s attempts to relist the matter before the judge have been unsuccessful.  Clearly, then there is no order against which the husband can appeal.  The application for a stay of his Honour’s orders was thus not pressed.

6. The basis for expedition was that the trial judge’s orders in relation to child support were founded on the husband’s then income.  It was contended that since the date of the decision of the trial judge, the husband’s income has reduced significantly such that he is unable to meet the ordered child support payments.  It was argued that, after deduction of child support, the husband is left with a few hundred dollars to provide for his own support.  Furthermore, the husband contended that his application to the Child Support Agency seeking a reduction of the child support payable by him was refused.

7. The wife who appeared on the application did not seem to contest the assertion that the husband’s income had reduced and noted that she was not receiving the full amount of child support ordered. 

8. In those circumstances both of the husband’s changed financial circumstances and the delay in the consideration of the stay, I concluded that this was a matter appropriate for such expedition as may be determined by the Appeals Registrar and those orders were made.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 2 October 2014.

Associate:     

Date:  2 October 2014