Adema v Adema - [2018] FCCA 2869

FEDERAL CIRCUIT COURT OF AUSTRALIA

ADEMA v ADEMA & ANOR

[2018] FCCA 2869

Catchwords:
CHILD SUPPORT – Review of a decision of the Administrative Appeals Tribunal – departure from assessment – no jurisdictional error – application dismissed.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.3, 98C, 117

Evidence Act 1995 (Cth), s.79

Cases cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barton v Gibb & Anor (SSAT Appeal) [2013] FCCA 644

Frost v Frost & Anor (SSAT Appeal) [2011] FMCAfam 1311

Kane & Naylor & Anor [2015] FCCA 2075

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Minister for Immigration and Citizenship v SZIAI (2009) 259 ALR 429

Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164

Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305

Phelps & Child Support Registrar & Anor(SSAT Appeal) [2015] FCCA 1599

Victor & Duncan & Anor (SSAT Appeal) [2015] FCCA 1073

Applicant:

MR ADEMA

First Respondent:

MS ADEMA

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLG 37 of 2018

Judgment of:

Judge Hartnett

Hearing date:

6 July 2018

Delivered at:

Melbourne

Delivered on:

5 October 2018

REPRESENTATION

Solicitor acting as Counsel for the Applicant:

Mr Bacon

Solicitors for the Applicant:

Manby and Scott

The First Respondent:

In person by telephone

Counsel for the Second Respondent:

Mr Grant

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

The amended Notice of Appeal (Child Support) is dismissed.
The Applicant pay the Second Respondent’s costs fixed in the sum of $7,066.

IT IS NOTED that publication of this judgment under the pseudonym Adema v Adema & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 37 of 2018

MR ADEMA

Applicant

And

MS ADEMA

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

By notice of appeal (child support) filed on 8 January 2018 and amended on 12 January 2018 (‘amended notice of appeal’), the Applicant appealed from a decision of the Administrative Appeals Tribunal, Social Service & Child Support Division (‘the Tribunal’) made on 11 December 2017 and posted to the parties on 15 December 2017.
The orders as sought by the Applicant are as follows:-
“1. Any leave for this Appeal to proceed be given.
2. The decision dated 11 December 2017 of the AAT in proceedings numbered be set aside.”
The notice of appeal (child support) filed 8 January 2018 was filed within time. The Applicant does not require any leave as sought.
Order 2 seeks relief in the nature of certiorari; however, if the Court determines an error of law has been made by the Tribunal as alleged by the Applicant, then the appropriate course for the Court would be not only to set aside the decision of the Tribunal but to also make an order that the matter be remitted to the Tribunal for redetermination in accordance with law.
The questions of law said to be raised on this appeal…

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 Adema v Adema

Details

AGLC: Adema v Adema [2018] FCCA 2869
Case: [2018] FCCA 2869
Decision Date: 5 October 2018

CaseChat Overview and Summary

The applicant, Adema, sought judicial review of a decision made by the Administrative Appeals Tribunal (AAT) concerning child support assessments. The dispute centred on whether the AAT had erred in its review of a child support assessment, specifically in relation to a departure from the standard assessment.

The primary legal issue before the court was whether the AAT had committed jurisdictional error in its review of the child support assessment. The applicant contended that the AAT's decision was flawed in a manner that amounted to jurisdictional error, thereby warranting intervention by the court.

Judge Hartnett found no jurisdictional error on the part of the AAT. The court's reasoning focused on the scope of judicial review in such matters, concluding that the AAT had acted within its powers and had not made any errors that would vitiate its decision. Consequently, the court dismissed the amended Notice of Appeal.

The amended Notice of Appeal (Child Support) was dismissed. The applicant was ordered to pay the Second Respondent’s costs, fixed in the sum of $7,066.

Orders

Orders of the court

The amended Notice of Appeal (Child Support) is dismissed.

The Applicant pay the Second Respondent’s costs fixed in the sum of $7,066.

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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