FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ALLMAND
Applicant
AND:
MS DENYER
Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.Leave to extend time is refused.
2.The appeal is dismissed.
3.There be no order for costs.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication…
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.
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Details
AGLC
Allmand v Denyer [2021] FedCFamC2G 52
Case
[2021] FedCFamC2G 52
Decision Date
CaseChat Overview and Summary
The matter before the Court was an appeal by Mr Allmand, the father, against a decision of the Administrative Appeals Tribunal (AAT) concerning a child support assessment. The primary dispute revolved around the Tribunal's refusal to extend the time limit for lodging an appeal and the subsequent dismissal of the appeal. The Applicant, Mr Allmand, and the Respondent, Ms Denyer, are the separated parents of two children, X and Y. The primary legal issues before the Court were whether the Applicant had grounds to appeal the AAT's decision to refuse an extension of time to lodge an appeal and, if so, whether the appeal should succeed in altering the child support assessment.
The Court considered whether the Applicant's grounds of appeal were valid and whether the AAT's decision to refuse the extension of time was correct. The Applicant argued that the AAT should have granted an extension due to exceptional circumstances, but the Court found that the Applicant had not demonstrated sufficient grounds for such an extension. The Court also examined the Tribunal's decision to depart from the administrative assessment of child support, focusing on the application of legislative provisions and relevant case law. Ultimately, the Court upheld the AAT's decision, finding that the Tribunal had correctly applied the relevant legislation and that the Applicant's appeal did not succeed on its merits.
The Court dismissed the appeal and refused the Applicant's request for an extension of time. The Court further ruled that there should be no order for costs. This decision upheld the AAT's assessment of child support, maintaining the previously determined care percentages and income calculations for the children.
Orders
Orders of the court
BRG 617 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ALLMAND
Applicant
AND:
MS DENYER
Respondent
ORDER MADE BY:
JUDGE TONKIN
DATE OF ORDER:
16 SEPTEMBER 2021
THE COURT ORDERS THAT:
1. Leave to extend time is refused.
2. The appeal is dismissed.
3. There be no order for costs.
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 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
The Applicant raised “Grounds of Appeal” at Annexure “A” in the Notice of Appeal however “Grounds” [1] – [5] are not grounds of appeal but statements of fact setting out the history of the proceedings. “Grounds” [6] – [7] represent the argument advanced by the Applicant on appeal. Ground [8] challenges a finding of fact. BACKGROUND The applicant (father) and first respondent (mother) are separated parents of children X born in 2009 (now 12) and Y born in 2012 (now 9). The care percentages for the children used in the child support assessment are as follows:(a)X: 22% care of the mother; 78% care of the father; and(b)Y: 78% care of the mother; 22% care of the father. The care percentage aspect of the child support assessment was not a subject in the proceedings before the Tribunal. Prior to the lodging of the application that led to the application before the Tribunal the child support assessment relevantly provided: On 15 April 2019 the first respondent lodged an application to change the assessment based on the income, property and financial resources and the earning capacity of the applicant. The applicant cross applied based on the income, property and financial resources of the first respondent. On 17 December 2019 a delegate of the second respondent concluded that neither party had established a ground for departure. The first respondent lodged an objection to the delegate’s decision under Part VII of the Child Support (Registration and Collection) Act1988 (“the Collection Act”). On 3 April 2020 an objections officer determined to depart from the administrative assessment as follows:12The mother lodged an objection to the delegate’s decision under Part VII of the Child Support (Registration and Collection) Act 1988 (Cth) (Collection Act) (TD[4]). On 3 April 2020, an objection officer decided to depart from the administrative assessment in these ways:a.For the period 13 May 2019 to 30 June 2019:i. The self-support amount for the father was set at $0; andii The mother’s annual income was set at $40,155.b. For the period 1 July 2019 to 30 November 2020:i. The mother’s ATI was set at $61,024.c. For the period 1 July 2019 to 26 April 2020:i. The father’s ATI was set at $38,000.d. For the period 27 April 2020 to 26 October 2020:i. The father’s ATI was set at $52,300.e. For the period 27 October 2020 to 31 December 2021:i. The father’s ATI was set at $38,000. The first respondent applied to the Tribunal for review of the objection decision under Part VII of the Collection Act. Both parties attended the Tribunal hearing on 7 October 2020 and provided documents. The Tribunal delivered a written decision on 12 October 2020.FINDINGS OF THE TRIBUNAL The question for determination before the Tribunal was whether there was a ground to depart from the administrative assessment of child support and whether it was just and equitable and otherwise proper to depart from the administrative assessment. The Tribunal considered the legislative framework [6] – [7] and the application of paragraph s.117(2)(c)(ia) of the Child Support (Assessment) Act 1989 (Cth) [8] – [9] with reference to the decision of the Full Court of the Family Court in Gyselman v Gyselman (1992) FLC 92 – 279. The Tribunal had regard to the first respondent’s current gross annual income of $70,000 and her income with respect to two previous years $40,155 (FY18/19) and $58,767 (FY19/20).