Paisley and Baker and Anor - [2016] FCCA 1016

FEDERAL CIRCUIT COURT OF AUSTRALIA

PAISLEY & BAKER & ANOR

[2016] FCCA 1016

Catchwords:
CHILD SUPPORT – Interlocutory application to proceed out of time with Appeal from a decision of the Administrative Appeals Tribunal (AAT) in a child support first review – application to proceed out of time is dismissed.

Legislation:

Administrative Appeals Tribunal Act 1975, ss.44AAA, 44(2A)

Child Support (Assessment) Act 1989, ss.116(1)(b), 117B, 136, 159, 159A

Child Support (Registration and Collection) Act 1988, s.110

Cases cited:
Child Support Registrar & Crabbe & Anor [2014] FamCAFC 10
Child Support Registrar & Crowley & Anor [2015] FamCAFC 76
Larson & Martell & Anor [2013] FCCA 1815

Somer v Child Support Registrar & Anor [2016] FCCA 49

Applicant:

MR PAISLEY

First Respondent:

MS BAKER

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

BRG 937 of 2015

Judgment of:

Judge Cassidy

Hearing date:

29 April 2016

Date of Last Submission:

29 April 2016

Delivered at:

Brisbane

Delivered on:

6 May 2016

REPRESENTATION

The Applicant appeared in person

The First Respondent appeared in person, by telephone

Solicitors for the Second Respondent:

Mr C Bishop of Department of Human Services

ORDERS

That the father’s oral application for leave to proceed out of time in relation to the Notice of Appeal filed on 2 October 2015 be dismissed.
That the Application in a Case filed by the father on 19 February 2016 be dismissed.
That the Notice of Appeal filed by the father on 2 October 2015 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Paisley & Baker & 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 BRISBANE

BRG 937 of 2015

MR PAISLEY

Applicant

And

MS BAKER

First Respondent

And

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

This matter commenced with a Notice of Appeal (Child Support) filed by the father on 2 October 2015. The appeal was in relation to a decision made by S. Trotter that was dated 3 February 2014. Therefore, the appeal was approximately 18 months out of time. In order for the applicant to proceed with the appeal, the applicant needed to apply for an extension of time in which to file the appeal. Directions were made for the applicant to file an Application in a Case and Affidavit in relation to this issue.
On 19 February 2016 the applicant sought, what appears to be a Departure Order, pursuant to s.117 of the Child Support (Assessment) Act 1989 (the Assessment Act). The applicant did not at any stage file an Application in a Case for leave to proceed out of time, nor an Affidavit supporting that application. The Child Support Registrar (the Registrar) and the mother did not oppose allowing the applicant to make an oral application for leave to proceed out of time. I allowed the father to make that oral application. The difficulty for the father in his case was, even though he filed…

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.

Keep reading for free

Create a free CaseChat account to read Paisley and Baker and Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FCCA 1016
Decision Date: 6 May 2016

CaseChat Overview and Summary

Paisley and Baker and Anor concerned an appeal by the father against orders made by the Family Court of Australia. The father sought to appeal against earlier decisions of the Family Court, but the proceedings before Judge Cassidy involved applications relating to the timeliness of these appeals and the father's subsequent applications.

The primary legal issues before the court were whether the father should be granted leave to proceed with his appeal out of time, and whether his subsequent application filed in February 2016 should be dismissed. These issues required the court to consider the relevant rules and principles governing the filing of appeals and applications within the Family Court jurisdiction, particularly concerning the time limits prescribed for such actions.

Judge Cassidy dismissed the father's oral application for leave to proceed out of time in relation to his Notice of Appeal filed in October 2015. The court also dismissed the father's Application in a Case filed in February 2016. Consequently, the father's Notice of Appeal filed on 2 October 2015 was also dismissed.

Orders

Orders of the court

That the father’s oral application for leave to proceed out of time in relation to the Notice of Appeal filed on 2 October 2015 be dismissed.

That the Application in a Case filed by the father on 19 February 2016 be dismissed.

That the Notice of Appeal filed by the father on 2 October 2015 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.