COE15 v COF15

[2015] FCCA 3390

FEDERAL CIRCUIT COURT OF AUSTRALIA

COE15 v COF15 & ANOR [2015] FCCA 3390

Catchwords:
CHILD SUPPORT – Administrative Appeals Tribunal (Social Services & Child Support Division) – application fails to disclose any arguable question of law – proceedings hopeless and vexatious – application summarily dismissed pursuant to s.17A of the Federal Circuit Court Act 1999. 

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.44, 44AA, 44AAA

Child Support (Assessment) Act 1989

Federal Circuit Court Act 1999, s.17A

Migration Act 1958 (Cth)

Applicant: COE15

First Respondent: COF15

Second Respondent: CHILD SUPPORT AGENCY

File Number: SYG 2973 of 2015

Judgment of: Judge Street

Hearing date: 17 December 2015

Date of Last Submission: 17 December 2015

Delivered at: Sydney

Delivered on: 17 December 2015

REPRESENTATION

The Applicant appeared in person

No appearance by or on behalf of the First Respondent

Solicitors for the Second Respondent: Ms L James

ORDERS

1. The amended notice of appeal is summarily dismissed under s.17A of the Federal Circuit Court Act 1999.

   IT IS NOTED that publication of this judgment under the pseudonym COE15 v COF15 & 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 2973 of 2015

COE15

Applicant

And

COF15

First Respondent

CHILD SUPPORT AGENCY

Second Respondent

REASONS FOR JUDGMENT

1. This is a matter in which the applicant has purported to invoke the Court’s jurisdiction under s.44AAA in respect of a decision of the Tribunal made on 10 September 2015. Section 44AA of the Administrative Appeals Tribunal Act 1975 (Cth) confers on this Court jurisdiction of the same kind as identified in s.44 in respect of the decisions of the Tribunal in matters of child support under the Child Support (Assessment) Act 1989.  

2. The matter was commenced by notice of appeal dated 29 October 2015 and supported by an affidavit of the applicant.  The matter came before the Court on 26 November 2015, and the Court identified to the applicant that the notice of appeal failed to identify any arguable question of law.  The Court pointed out to the applicant on that occasion that the matters raised in the affidavit and notice of appeal appeared to be an endeavour to review the matter on its merits, and that this Court had limited jurisdiction, and that an appeal to this Court was one confined to a question of law.

3. Orders were made on 26 November 2015 providing the applicant with an opportunity to file an amended process on or before 10 December 2015, as well as giving the applicant an opportunity, if the applicant wished, to discontinue the proceedings in circumstances where it had been foreshadowed by the second respondent that no order for costs would be sought if the proceedings were discontinued before 10 December 2015. The Court foreshadowed that the proceedings may be dismissed on 17 December 2015 if any amended notice of application failed to identify an arguable question of law.

4. The applicant has filed on 10 December 2015 an amended notice of appeal that, on its face, fails to disclose any arguable question of law.  The substance of the grounds of appeal appear to be a merits challenge to the findings made by the Tribunal.  The kernel of the applicant’s complaint appears to be an alleged failure by the Tribunal to take into account the applicant’s argument concerning Renta Afecta as a source of income alleged by the applicant to exist in respect of the husband.

5. The husband has filed an appearance and has provided to the Court at each directions hearing an international telephone number to try and attend the proceedings. On each occasion the matter has been listed, the international telephone number has not permitted contact with the first respondent. The second respondent has moved for the summary dismissal of the proceedings on the basis that it fails to disclose any arguable question of law under s.44 as picked up by s.44AAA of the Administrative Appeals Tribunal Act 1975 (Cth).

6. It is unnecessary to set out the full content of the grounds of appeal.  It is sufficient to say that it maintains the irrelevant material that was in the first notice of appeal and includes matters that are completely extraneous, such as provisions relating to the Migration Act 1958 (Cth). The notice of appeal has, on its face, all the hallmarks of an endeavour by the applicant to re-agitate the whole of the issues and merits that were agitated before the Tribunal. Nothing identified in the grounds of appeal identifies an arguable question of law.

7. While the Court accepts that a self-represented litigant may not readily be able to articulate a question of law with the clarity that a lawyer may be able to do so, the Court has carefully considered the alleged grounds of appeal and the alleged orders sought in the context of the decision of the Tribunal, and it suffices to say that none of the matters identified are capable of identifying any arguable question of law. 

8. In consideration the application of s.17A I take into account the principles in Spencer v the Commonwealth of Australia (2010) 241 CLR 118 at [24]-[25] and [59]-[60]. I am satisfied that the proceedings have no reasonable prospect of success. I find the proceedings are hopeless and vexatious. I am satisfied that this is an appropriate case to exercise the Court’s powers under s.17A of the Federal Circuit Court Act 1999 and the notice of appeal should be dismissed.

I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Judge Street

Associate: 

Date: 18 December 2015