Beach v Beck

[2016] FCCA 3220

FEDERAL CIRCUIT COURT OF AUSTRALIA

BEACH v BECK & ANOR [2016] FCCA 3220

Catchwords:
CHILD SUPPORT – No appearance by the applicant – adjournment not in the best interests of the administration of justice – adjournment not granted as it was a deliberate decision by the applicant not to attend Court – application of r.13.03C(1)(c) – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, s.44AAA

Federal Circuit Court Rules, r.13.03C(1)(c)

Applicant: MR BEACH

First Respondent: MS BECK

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLG 975 of 2016

Judgment of: Judge Street

Hearing date: 12 December 2016

Date of Last Submission: 12 December 2016

Delivered at: Sydney

Delivered on: 12 December 2016

REPRESENTATION

No appearance by or on behalf of the Applicant.

The First Respondent appeared in person.
Solicitors for the Second Respondent:	Ms B Rayment Mills Oakley Lawyers

ORDERS

1. The notice of appeal filed on 11 May 2016 is dismissed under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001.

2. The Applicant pay the Second Respondent’s cost fixed in the amount of $8,500.00.

3. The name of the Second Respondent be changed to the Child Support Registrar and the need for filing any further document in this regard is dispensed with.

IT IS NOTED that publication of this judgment under the pseudonym Beach v Beck & 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

MLG 975 of 2016

MR BEACH

Applicant

And

MS BECK

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter within the Court’s jurisdiction, pursuant to s.44AAA of the Administrative Appeals Tribunal Act1975 in which the applicant seeks to challenge a decision of the Administrative Appeals Tribunal (“the Tribunal”) made 8 April 2016. A notice of appeal was filed on 11 May 2016.  Relevantly, orders were made by this Court on 1 September 2016 providing the applicant with an opportunity to file an amended ground of defence and put on affidavit evidence and submissions.

2. The matter was fixed for hearing on that occasion on 14 November.  On 23 September 2016, due to a commitment of this Court in Brisbane and sittings in that State, the intended hearing date on 14 November 2016 was vacated and the matter was relisted for hearing on 12 December 2016.  The matter was listed for hearing at 10:15 am and it is now 11:05 am and the applicant has failed to appear. 

3. The applicant had sent an email to the Court on 5 December 2016 foreshadowing a request for an adjournment because of an alleged medical appointment in respect of his son. The Court caused a response to be sent to the applicant, copied to respondents, indicating the matter remained fixed for hearing and that any application for adjournment must be made by application in a case supported by affidavit.

4. The applicant sent an email to the Court at 10:34 pm on 11 December 2016, which it appears was not copied to the other parties, in which the applicant indicated that he had made his choice.  Whilst, it may not have been the applicant’s best choice, the applicant decided to take his son to the specialist appointment rather than attend the Court. This was a deliberate decision of the applicant. The email dated 5 December 2016 was by error not sent to the solicitor for the second respondent.

5. The applicant’s email dated 11 December 2016 reflects a deliberate decision not to attend the Court. That deliberate decision may have ramifications in respect of the rule that provides for an opportunity to have an order made in default of a party’s appearance reinstated. 

Consideration of the request for an adjournment

1. The first and second respondents have both opposed any adjournment.  The first respondent has pointed out that there has been a barrage of material served belatedly it appears last night, by the applicant in intending to try and expand the grounds of the appeal as well as to provide transcripts which have been available to the applicant since September 2016. 

2. Given the history of the matter and the absence of any earlier notice being sent to the solicitors for the second respondent of a proposal for an adjournment and the deliberate choice made by the applicant, I am satisfied that this is not a matter in which the Court should grant any adjournment.  I am not satisfied that an adjournment is in the interests of the administration of justice. 

Application of r.13.03C(1)(c)

1. Taking into account the nature of the grounds of appeal and the material that has been filed, as well as the matters alleged by the applicant as grounds supporting an adjournment, the second respondent has not moved for dismissal of the proceedings under r.13.03C(1)(c) of the Federal Circuit Court Rules 2001 “the Rules”) due to the absence of the applicant. I am satisfied that the applicant was well aware of the hearing and for the reasons I have given, made a deliberate decision not to attend the Court today. 

2. I am satisfied that this is an appropriate matter in which to exercise the Court’s powers under r.13.03C(1)(c) of the Rules. I note the Court was also provided with a submission by the first respondent identifying reasons why the first respondent strenuously opposed any adjournment and why the first respondent wanted the matter dealt with today. Those submissions were marked “MFI 4”. For the purpose of considering this application under r.13.03C(1)(c) of the Rules, even though the applicant is not present, the Court has taken into account the material in “MFI 1” to “MFI 4”.

3. The applicant has not explained when the appointment was fixed or why the appointment could not be changed in relation to his son. No proper basis upon which an adjournment should be granted has been made out. I accept the submission of the second respondent that the appropriate course is to dismiss the appeal under r.13.03C(1)(c) of Rules.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Street

Date: 25 January 2017