Laurie & Child Support Registrar

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FAMILY COURT OF AUSTRALIA

LAURIE & CHILD SUPPORT REGISTRAR [2009] FamCAFC 183

FAMILY LAW – APPEAL – Application in an Appeal – Leave to reinstate an abandoned appeal – Appeal against a decision from the Federal Magistrates Court dismissing an appeal from the Social Security Appeals Tribunal (SSAT) – Where there was a failure to file a draft index to the appeal books – Where the appeal was deemed abandoned by r 22.13(2) – Where a Notice of Constitutional Matter was filed – Where the proceedings involved a matter arising under the Constitution or involving the interpretation within the meaning of s 78B of the Judiciary Act1903 (Cth) – Where the Father seeks to agitate issues in relation to the constitutional validity of provisions of the Child Support (Assessment) Act 1989 (Cth) – Where the grounds of appeal are futile – Where the Father does not agitate any prejudice to him if the application was refused – Where the public cost of the proceedings to date has been significant and the public interest cannot be ignored – Appeal dismissed

FAMILY LAW – COSTS – Where the Father has been wholly unsuccessful – Where justifying circumstances as required by s 117 of the Family Law Act have been established – Where there was no evidence that the Father could not afford to pay costs – Costs granted  

Judiciary Act 1903 (Cth)
Family Law Act 1975 (Cth)
Family Law Rules 2004
Federal Magistrates Court Rules 2001
Child Support (Registration & Collection) Act 1989 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)

Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133
Aon Risk Services Ltd v Australian National University (2009) 258 ALR 14
Casson and Casson (1988) FLC 91-962
Gallo v Dawson (1990) 93 ALR 479
Gould and Gould; Swire Investments Ltd (1994) FLC 92-434
Hartnett v Sampson (Costs) [2007] FamCA 1456
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641
Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330
Hussain v Minister for Foreign Affairs (2008) 169 FCR 241
Kruger v Commonwealth (1996) 190 CLR 1
LDME v JMA (SSAT APPEAL) (2007) 38 Fam LR 132
Luton v Lessels (2002) 210 CLR 333
Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155
Neetmanski v Child Support Registrar (No 2) [2009] FMCAfam 430
Neetmanski v Child Support Registrar [2009] FMCAfam 200
Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134
OP v HM (2002) 29 Fam LR 251
Prowse v Prowse (1994) 18 Fam LR 348
R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
Thomas v Mowbray (2007) 233 CLR 307
Tormsen and Tormsen (1993) FLC 92-392
W v Child Support Registrar [2006] FamCA 598; FLC 93-273
Whittaker v Child Support Registrar [2003] FCAFC 114
Whittaker v Child Support Registrar [2009] FCA 188

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Details
Case
[2009] FamCAFC 183
Decision Date

CaseChat Overview and Summary

The matter involves an appeal by the Applicant, Mr Laurie, against a decision of the Federal Magistrates Court, which in turn dismissed an appeal from the Social Security Appeals Tribunal (SSAT). The dispute concerns a child support assessment under the Child Support (Assessment) Act 1989 (Cth). The appeal was deemed abandoned due to the Applicant’s failure to file a draft index to the appeal books, in accordance with rule 22.13(2). The Applicant subsequently sought leave to reinstate the appeal, which involved raising issues concerning the constitutional validity of the Child Support (Assessment) Act 1989 (Cth).

The primary legal issues the court was required to address included whether the appeal could be reinstated, and if the grounds of appeal were valid. The court also considered whether the Applicant had any justifiable circumstances to warrant the grant of costs under section 117 of the Family Law Act, given the Applicant's unsuccessful appeal and the significant public costs incurred to date.

The court held that the appeal should be dismissed as the Applicant failed to comply with procedural requirements by not filing a draft index, leading to the abandonment of the appeal. Additionally, the grounds of appeal were deemed futile and without merit. The Applicant did not demonstrate any prejudice that would warrant the reinstatement of the appeal, nor did he address the public cost implications of the proceedings. Consequently, the application to reinstate the appeal was dismissed. Given the Applicant's unsuccessful appeal and the lack of any evidence that he could not afford to pay costs, the court granted costs against the Applicant in the amount of $3,363.55, to be paid within 36 days.

The court's final orders were that the application in an appeal filed on behalf of Mr Laurie be dismissed, that Mr Laurie pay the costs of the Deputy Child Support Registrar, and that the amount of those costs be assessed as $3,363.55, to be paid within 36 days of the date of the orders.

Orders

Orders of the court

1.

The Application in an Appeal filed on behalf of Mr Laurie (“the Applicant”) be dismissed.

2.

The Applicant pay the costs of the Deputy Child Support Registrar.

3.

The costs referred to in Order 2 hereof be assessed in the amount of $3,363.55.

4.

The Applicant pay to the Deputy Child Support Registrar the amount in Order 3 hereof within 36 days of the date of these orders.

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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