Larson and Martell and Anor

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARSON & MARTELL & ANOR [2013] FCCA 1815

Catchwords:
CHILD SUPPORT – Whether pursuant to section 116(1)(b) of the Child Support (Assessment) Act 1989, a departure application should be heard at the same time as an appeal from a decision of the SSAT.

Legislation:

Child Support (Assessment) Act 1989, s.116(1)(b)

Child Support (Registration and Collection) Act 1988, Part VIIA
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Bill 2006

Applicant: MS LARSON

First Respondent: MR MARTELL

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: MLC 6417 of 2012

Judgment of: Judge Hughes

Hearing date: 1 October 2013

Date of Last Submission: 1 October 2013

Delivered at: Melbourne

Delivered on: 8 November 2013

REPRESENTATION

Counsel for the Applicant: Ms Sevdalis

Solicitors for the Applicant: Logie Smith Lanyon Lawyers

Counsel for the First Respondent: Mr Strum

Solicitors for the First Respondent: Farrar Gesini Dunn

Counsel for the Second Respondent: Mr Maat

Solicitors for the Second Respondent: Australian Government Solicitors

ORDERS

1. The oral application pursuant to s.116(1)(b) of the Child Support (Assessment) Act 1989 is dismissed.

2. The initiating application filed on 27 September 2013 is dismissed.

3. The subpoenas issued on 26 August 2013, 29 August 2013, 2 September 2013 and 9 September 2013 are struck out.

4. The appellant shall, by 18 November 2013, file and serve an amended Notice of Appeal.

5. The proceedings are adjourned to 22 November 2013 for mention and directions in relation to the appeal.

6. The costs of all parties are reserved.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6417 of 2012

MS LARSON

Applicant

And

MR MARTELL

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

(As Corrected)

1. These are interim proceedings in which the applicant seeks an order pursuant to s.116(1)(b) of the Child Support (Assessment) Act 1989 (the Assessment Act) for the Court to hear an application for departure from the administrative assessment of child support at the same time as it hears an appeal from a decision of the Social Security Appeals Tribunal (“SSAT”).

2. To put the arguments in context, it is necessary to set out some of the procedural history.

The appeal

1. On 15 May 2013 a notice of appeal from the decision of the SSAT of 23 April 2013 was filed. 

2. As with many unrepresented litigants, the formal grounds of appeal are really a mixture of grounds, evidence and submissions.  Paraphrasing, the grounds of appeal seem to be as follows:

   i)The SSAT erred by refusing to backdate the period of the assessment to the date of birth of the child, (omitted) 2009, as permitted by an order made by Federal Magistrate Riethmuller (as he then was) on 14 December 2012, instead backdating it only to 15 December 2011.

   ii)The SSAT failed to compel the production by the respondent of…