Barton v Bergin

[2017] FCCA 1112

FEDERAL CIRCUIT COURT OF AUSTRALIA

BARTON v BERGIN & ANOR [2017] FCCA 1112

Catchwords:
CHILD SUPPORT – Administrative Appeals Tribunal – application for summary dismissal – whether any arguable question of law in decision – no arguable question of law identified – application summarily dismissed.

Legislation:

Child Support (Assessment) Act 1989, s.99

Federal Circuit Court Rules 2001 (Cth) r.13.10

Cases cited:

Spencer v Commonwealth of Australia (2010) 241 CLR 118

Applicant: MR BARTON

First Respondent: MS BERGIN

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYG 1289 of 2017

Judgment of: Judge Street

Hearing date: 25 May 2017

Date of Last Submission: 25 May 2017

Delivered at: Sydney

Delivered on: 25 May 2017

REPRESENTATION

The applicant appeared in person.

The first respondent appeared in person.
Solicitors for the Second Respondent:	Ms G Doyle Sparke Helmore

ORDERS

1. The proceedings are summarily dismissed under r.13.10 of the Federal Circuit Court Rules 2001.

2. The applicant pay the second respondent’s costs fixed in the amount of $2,000.00.

IT IS NOTED that publication of this judgment under the pseudonym Barton v Bergin & 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 SYDNEY

SYG 1289 of 2017

MR BARTON

Applicant

And

MS BERGIN

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. This is an application for relief within the Court’s jurisdiction under s.99 of the Child Support Assessment Act 1989 (Cth) (“the Act”) in respect of a decision of the Administrative Appeals Tribunal (“the Tribunal”) made on 20 February 2017 affirming a decision in respect of a child support assessment made by the Department on 8 April 2016. The right of appeal to this Court is limited to a question of law. The notice of appeal that has been filed by the applicant plainly fails to identify any question of law. The affidavit in support fails to identify any arguable case upon which there is an error or a question of law.

2. The Court made an order on 4 May 2017 providing the applicant with an opportunity to file an amended notice of appeal. On that occasion, the Court explained to the applicant that the notice of appeal on its face appeared to fail to identify any question of law and that the Court would entertain at today’s hearing an application by the second respondent for summary dismissal if no amended notice of appeal was filed.

3. No amended notice of appeal has been filed. The Court has raised with the applicant why no amended notice of appeal has been filed and the applicant informed the Court that he had obtained legal advice and that he stands by his application that has been filed and an affidavit.

4. The second respondent has moved for the proceedings to be summarily dismissed under r.13.10 of the Federal Circuit Court Rules 2001 (Cth). I take into account the principles and caution in Spencer v Commonwealth of Australia (2010) 241 CLR 118, at [24]-[25] and [59]-[60]. I am clearly satisfied that there is no arguable question of law identified in the notice of appeal and affidavit filed by the applicant.

5. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.10. The proceedings are summarily dismissed under r.13.10 of the Federal Circuit Court Rules 2001 (Cth).

I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 22 June 2017