FEDERAL COURT OF AUSTRALIA
Emmett v McCormack [2016] FCAFC 65
ORDERS
NSD 1037 of 2015 BETWEEN: ANTHONY EMMETT
Appellant
AND: HON. MICHAEL MCCORMACK IN HIS CAPACITY AS PARLIAMENTARY SECRETARY TO THE MINISTER FOR FINANCE
Respondent
JUDGES:
BUCHANAN, FLICK AND PERRY JJ
DATE OF ORDER:
10 MAY 2016
THE…
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Details
- AGLC
- Emmett v McCormack [2016] FCAFC 65
- Case
- [2016] FCAFC 65
- Decision Date
CaseChat Overview and Summary
Emmett v McCormack is a case where Mr Anthony Emmett, the appellant, challenges the liability to pay a sum of approximately $125,000 to his former wife, Ms Berry. The dispute revolves around the child support obligations that arose after Mr Emmett’s departure from Australia to the United Kingdom in 2000. The case was heard by the court of appeal, which was required to determine whether the appellant's appeal should be dismissed and whether the respondent's costs should be awarded to Ms Berry.
The legal issues before the court included whether the appellant’s appeal should be dismissed on the basis of the absence of procedural fairness and error of law in the primary judge's decision. Additionally, the court had to consider whether there was an improper exercise of power by taking irrelevant considerations into account or by exercising discretionary power without regard to the merits of the case. The court also needed to assess whether the reasons provided by the respondent were satisfactory and whether the appellant had administrative courses still open to him under the Child Support (Assessment) Act.
The court reasoned that despite its misgivings, it saw no alternative but to dismiss the appeal because the issues raised were not part of the appellant’s case, and the respondent had not had an opportunity to address them. The court further found no error demonstrated in the primary judge's conclusions or orders. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
In summary, the court dismissed the appeal and ordered the appellant to pay the respondent's costs, as per the orders entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
The legal issues before the court included whether the appellant’s appeal should be dismissed on the basis of the absence of procedural fairness and error of law in the primary judge's decision. Additionally, the court had to consider whether there was an improper exercise of power by taking irrelevant considerations into account or by exercising discretionary power without regard to the merits of the case. The court also needed to assess whether the reasons provided by the respondent were satisfactory and whether the appellant had administrative courses still open to him under the Child Support (Assessment) Act.
The court reasoned that despite its misgivings, it saw no alternative but to dismiss the appeal because the issues raised were not part of the appellant’s case, and the respondent had not had an opportunity to address them. The court further found no error demonstrated in the primary judge's conclusions or orders. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
In summary, the court dismissed the appeal and ordered the appellant to pay the respondent's costs, as per the orders entered in accordance with Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The appeal be dismissed.
2. The appellant pay the respondent’s costs, as taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
The thing that has troubled us about the present case lies elsewhere. It concerns the matters referred to in s 5(1)(e) of the AD(JR) Act (set out above), as informed by s 5(2)(a) and/or (f), as follows: 5Applications for review of decisions… (2)The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to: (a)taking an irrelevant consideration into account in the exercise of a power; … (f)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case; However, we are sitting on appeal, not at first instance. Moreover, the matters which have concerned us do not arise within the boundaries of the present litigation: they do not form part of the appellant’s case and the respondent has had no opportunity to deal with them. There has certainly been no error demonstrated in the conclusions or orders of the primary judge. Despite our misgivings, therefore, we see no alternative to dismissing the appeal. The appellant may have administrative courses which remain open to him under the CDDA Scheme, as the respondent appeared to intend. There is no reason in principle to deny the respondent’s costs. We would therefore dismiss the appeal with costs. The facts giving rise to the present dispute go back some years. In issue is the liability of the Appellant, Mr Anthony Emmett, to pay a sum of about $125,000 to his former wife, Ms Berry. It is unnecessary for present purposes to retrace the facts in any great detail. The facts start with the separation of Mr Emmett from his former wife in July 1997. The couple subsequently divorced. They had two children who both resided with their mother after the separation. Both children are now over 18 years of age. In 1997 Mr Emmett was ordered to pay child support. This he did until he left Australia and went to the United Kingdom in 2000. At the time, his departure from Australia had the consequence that he ceased having to pay child support. Amendments, however, were made to the Child Support (Assessment) Act1989 (Cth) (the “Child Support (Assessment) Act”). Those amendments provided for a parent to make an application for a child support assessment where the other parent was residing in a reciprocating jurisdiction, such as the United Kingdom. The Child Support Division of the Department of Human Services was responsible for the administration of the Child Support (Assessment) Act and the collection of child support liabilities under the Child Support (Registration and Collection) Act1988 (Cth) (the “Child Support (Registration and Collection) Act”). Ms Berry applied for an assessment of child support by a Magistrate in England in September 2000. The amount of that assessment was less than the amount previously payable in Australia under the Child Support (Assessment) Act. But the assessment made by the Magistrate did not extinguish or vary the assessments made pursuant to the Australian Act. A second, similar order was made in March 2008.
Ratio Decidendi
Legal Principle Established
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