Cromer v Caswell

Case [2020] FCCA 1037

FEDERAL CIRCUIT COURT OF AUSTRALIA

CROMER v CASWELL & ANOR [2020] FCCA 1037
Catchwords:
CHILD SUPPORT – Application for judicial review of decision of Administrative Appeals Tribunal – departure application – parties agreed to orders regarding assessment of child support in 2012 – both parties have brought applications seeking to depart from those orders – AAT decision to depart from previous orders and raise the amount of child support to be paid by the applicant – applicant contends that the AAT committed jurisdictional error in failing to adequately consider an omitted annotation to the agreed 2012 order that prevented departure applications being brought – no jurisdictional error established – application dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.3, 43AA, 44AAA

Child Support (Assessment) Act 1989 (Cth), ss.4, 25, 43, 98B, 98C, 98J, 98S,

117

Child Support (Registration & Collection) Act 1988 (Cth), ss.103T, 103W,

105

Family Law Act 1975 (Cth), s.117

Cases cited:

Applicant WAEE v Minister for Immigration & Multicultural & Indigenous

Affairs (2004) 75 ALD 630

Apthorpe v Repatriation Commission (1987) 13 ALD 656

Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10

Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprise Pty

Ltd (1993) 43 FCR 280

Gyselman & Gyselman [1991] FamCA 93

Htun v Minister for Immigration & Multicultural Affairs (2001) 194 ALR 244

LDME & JMA [2007] FMCAfam 712

Minister for Aboriginal AffairsvPeko- Wallsend Ltd (1986) 162 CLR 24

Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437

Minister for Immigration & Ethnic Affairs v Wu Shan Ling [1996] 185 CLR 259

Minister for Immigration & Multicultural Affairs v Al Miahi (2001) 65 ALD 141

Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR

597

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Tisdall v Webber (2013) 193 FCR 260

VAAD v Minister for Immigration & Multicultural Affairs & Indigenous Affairs

[2005] FCAFC 117
Applicant: MR CROMER
First Respondent: MS CASWELL
Second Respondent: CHILD SUPPORT REGISTRAR
File Number: ADG 184 of 2019
Judgment of: Judge Brown
Hearing date: 3 December 2019
Date of Last Submission: 3 December 2019
Delivered at: Adelaide
Delivered on: 6 May 2020

REPRESENTATION

Counsel for the Applicant: Mr d'Assumpcao
Solicitors for the Applicant: Mellor Olsson
Counsel for the First Respondent: Ms Wundke
Solicitors for the First Respondent: Legal Services Commission
Counsel for the Second Respondent: Mr Bishop
Solicitors for the Second Respondent: Mills Oakley

ORDERS

  1. The amended notice of appeal filed 9 July 2019, as amended by counsel for the Applicant at the hearing of the appeal, be dismissed.

  2. The Applicant pay costs calculated in the sum of $3,500.00 to each of the Respondents concerned.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT ADELAIDE

ADG 184 of 2019

MR CROMER

Applicant

And

MS CASWELL

First Respondent

CHILD SUPPORT REGISTRAR

Second…

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AGLC
Cromer v Caswell [2020] FCCA 1037
Case
[2020] FCCA 1037
Decision Date

CaseChat Overview and Summary

Cromer v Caswell concerned an application for judicial review of a decision made by the Administrative Appeals Tribunal (AAT). The dispute arose from applications by both parties to depart from child support orders previously agreed upon in 2012. The AAT had decided to depart from these orders and increase the amount of child support payable by the applicant.

The central legal issue before the court was whether the AAT had committed a jurisdictional error. Specifically, the applicant argued that the AAT failed to adequately consider an annotation to the 2012 order. This annotation, the applicant contended, prevented departure applications from being brought, and its omission from adequate consideration by the AAT constituted a jurisdictional error.

Judge Brown found that no jurisdictional error had been established. The court reasoned that the AAT had indeed considered the relevant material, including the annotation, and its decision to depart from the 2012 orders was within its powers. The applicant's contention that the AAT failed to adequately consider the annotation was not substantiated to the level required to demonstrate a jurisdictional error.

Consequently, the amended notice of appeal was dismissed. The applicant was also ordered to pay costs to each of the respondents in the sum of $3,500.00.

Orders

Orders of the court

1.

The amended notice of appeal filed 9 July 2019, as amended by counsel for the Applicant at the hearing of the appeal, be dismissed.

2.

The Applicant pay costs calculated in the sum of $3,500.00 to each of the Respondents concerned.

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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