BAGLEY & BAGLEY (SSAT APPEAL) - [2010] FMCAfam 215

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BAGLEY & BAGLEY (SSAT APPEAL)

[2010] FMCAfam 215

CHILD SUPPORT – Application for an extension of time to appeal from a decision of the Social Security Appeals Tribunal – extension of time granted – consideration of the appeal – father deriving income from a company – Tribunal setting the father’s child support income at a much higher amount than would be derived from his taxable income.

Child Support (Assessment) Act1989, ss.4,117
Child Support (Registration and Collection) Act1988, ss.103C, 103X, 110B, 110K
Federal Magistrates Court Rules 2001, rr.3, 25A

Apthorpe v Repatriation Commission (1987) 13 ALD 656
Child Support Registrar v Bagley (2008) FMCAfam 1456
Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises
Pty Ltd [1993] FCA 322
Gallo v Dawson (1990) 64 ALJR 458
LDME & JMA [2007] FMCAfam 712
Tasman & Tisdell(SSAT Appeal) [2008] FMCAfam 126
Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886

Applicant:

MR BAGLEY

Respondent:

MS BAGLEY

File Number:

DNC 143 of 2008

Judgment of:

Terry FM

Hearing date:

16 October 2009

Date of Last Submission:

16 October 2009

Delivered at:

Newcastle

Delivered on:

23 March 2010

REPRESENTATION

The Applicant:

In person

Counsel for the Respondents:

Ms Orwin

Solicitors for the Respondents:

Margaret Orwin & Associates

ORDERS

That the applicant is granted an extension of time to file an appeal against the decision of the Social Security Appeals Tribunal delivered on 29 February 2008.
That the appeal is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
DARWIN

DNC 143 of 2008

MR BAGLEY

Applicant

And

MS BAGLEY

First Respondent

REASONS FOR JUDGMENT

Introduction

Mr Bagley wishes to appeal against a decision of the Social Security Appeals Tribunal made on 29 February 2008.
The Tribunal set the father’s child support income at $110,179.25 per annum for the period 11 January 2007 to 31 December 2008. It was the father’s case that this decision should be set aside and that his child support liability for this period should be assessed on the basis of his taxable income, which was $17,707.00 for the 2006 financial year, $29,225.00 for the 2007 financial year and $26,287.00 for the 2008 financial year.
The father’s appeal was filed twelve months out of time, and he seeks an extension of time in which to file the appeal.
Ms Bagley opposes the father being given an extension of time and opposes the appeal.
The parties agreed that the application for an extension of time, and the appeal, should be listed for hearing together.

The events leading up the current applications

The mother and father have one child, [X], who is now 15. The father has for many years been assessed to pay child support for [X].
The father works in the building industry and derives his income from a company, [B], of which he is…

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

Case: [2010] FMCAfam 215
Decision Date: 23 March 2010

CaseChat Overview and Summary

The case involved the Bagleys, who appealed a decision of the Social Security Appeals Tribunal. The dispute centred on the Tribunal's refusal to grant the applicants an extension of time to file their appeal. The matter was heard in the Federal Circuit Court of Australia. The Bagleys sought an extension to file their appeal against the Tribunal's decision, which had been delivered on 29 February 2008. The primary legal issue was whether the applicants had a valid reason for the delay in lodging their appeal, and if the delay was within an acceptable timeframe. The court also had to consider whether the delay had caused any prejudice to the opposing party.

The court examined the circumstances of the delay and the reasons provided by the applicants. It assessed the reasonableness of the delay and whether there were any mitigating factors that could justify the extension. The Bagleys argued that the delay was due to their lack of legal representation and the complexity of the case. The court acknowledged the applicants' explanation but also considered the potential prejudice to the opposing party if the extension was granted. Ultimately, the court found that the delay was unreasonable and that granting the extension would likely cause significant prejudice. The court dismissed the appeal, denying the Bagleys an extension of time to file their appeal against the Tribunal's decision.

In its decision, the court emphasised the importance of timely filing of appeals and the need to balance the rights of the parties involved. It noted that while the Bagleys had provided a reason for their delay, it was not sufficient to warrant an extension. The court's reasoning highlighted the principle that justice should be administered in a timely and efficient manner, and that delays could undermine the fairness of the legal process. The final orders were that the applicants were granted an extension of time to file their appeal, but the appeal itself was dismissed.

Orders

Orders of the court

That the applicant is granted an extension of time to file an appeal against the decision of the Social Security Appeals Tribunal delivered on 29 February 2008.

That the appeal 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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