Lamon and Lamon and Anor - [2019] FCCA 2113

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMON & LAMON & ANOR

[2019] FCCA 2113

Catchwords:
CHILD SUPPORT –Application for an extension of time – leave granted – appeal of decision of the Administrative Appeals Tribunal – appeal dismissed.

DEPARTURE PROHIBITION ORDER – Appeal – appeal dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975 (Cth), ss.44AAA(1), 44

Child Support (Registration and Collection) Act 1988 (Cth), ss.4, 18A, 34, 37, 42, 42C, 42D, 44, 72D, 72Q
Family Law Act 1975 (Cth), s.66K
Federal Circuit Court Rules 2001 (Cth), Sch.1
Federal Circuit Court of Australia Act 1999 (Cth), s.79(3)

Cases cited:

Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar & Crowley & Anor [2015] FamCAFC 76
Federal Commission of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FC 410
Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 34
Jones v Child Support Registrar [2007] FCA 1732
Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6
Penman & Child Support Registrar [2013] FCCA 492
Tran v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 297

Appellant:

MS LAMON

First Respondent:

MR LAMON

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLC 3158 of 2018

Judgment of:

Judge Mercuri

Hearing date:

5 December 2018

Date of Last Submission:

5 December 2018

Delivered at:

Melbourne

Delivered on:

2 August 2019

REPRESENTATION

Counsel for the appellant:

Ms Vohra SC

Solicitors for the appellant:

None

Advocate for the first respondent:

No appearance

Solicitors for the first respondent:

None

Advocate for the second respondent:

Ms Whittemore

Solicitors for the second respondent:

Sparke Helmore

ORDERS

The appellant is granted leave to appeal the decision of Member B of the Administrative Appeals Tribunal dated 22 August 2017 out of time.
The appellant’s appeals be dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment under the pseudonym Lamon & Lamon & 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 MELBOURNE

MLC 3158 of 2018

MS LAMON

Appellant

And

MR LAMON

First respondent

CHILD SUPPORT REGISTRAR

Second respondent

REASONS FOR JUDGMENT

Introduction

Before the court is an appeal from:
a)a decision of the Administrative Appeals Tribunal (“AAT”) in a child support review; and
b)the decision of the Child Support Registrar to issue a departure prohibition order.
The present applications gives rise to the following issues:
a)Whether an extension of time ought to be granted?
b)Whether the appellant has established that the AAT’s decision is affected by an error of law?
c)If the answer to 2(b) is yes, does the court have the power to grant the appellant the relief she seeks?
d)Whether the appellant has established the requirements for the court to set aside the departure prohibition order (“DPO”)?
The first respondent did not file any documents in this proceeding, nor did he attend the hearing of this matter.
The second respondent opposed each…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] FCCA 2113
Decision Date: 2 August 2019

CaseChat Overview and Summary

The matter of *Lamon and Lamon and Anor* concerned an appeal to the Federal Circuit Court of Australia against a decision of the Administrative Appeals Tribunal (AAT). The appellant sought an extension of time to appeal the AAT's decision.

The primary legal issues before the Court were whether to grant the appellant leave to appeal the AAT's decision out of time, and if so, the merits of the appeal itself, which related to a departure prohibition order.

Judge Mercuri granted the appellant leave to appeal out of time, acknowledging the circumstances presented. However, upon considering the substantive grounds of appeal, the Court found no error in the AAT's decision and therefore dismissed the appeal. The Court made no order as to costs.

Orders

Orders of the court

The appellant is granted leave to appeal the decision of Member B of the Administrative Appeals Tribunal dated 22 August 2017 out of time.

The appellant’s appeals be dismissed.

There be no order as to costs.

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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