Redmond and Redmond & Anor - [2016] FamCAFC 17

FAMILY COURT OF AUSTRALIA

REDMOND & REDMOND AND ANOR

[2016] FamCAFC 17

FAMILY LAW – CHILD SUPPORT – APPEAL – Application for leave to appeal by the father against a decision of the primary judge to dismiss his appeal against a determination by the Social Security Appeals Tribunal (“the SSAT”) which increased the father’s liability to pay child support – where the primary judge found it was not demonstrated that there was substance to the appeal or substantive rights had been affected by an error of principle – where the mother made a departure application to the Child Support Agency on the basis of the costs of educating the child –Where the father alleges a number of instances of procedural unfairness or bias in the conduct of the hearings before the SSAT – Where the father was afforded procedural fairness – Where there was no bias on the part of the SSAT – leave refused.

FAMILY LAW – COSTS – Where the mother and the Child Support Registrar both sought an order for costs – Where the father is a declared bankrupt – Where the father has a litigious history and the proceedings have been wholly successful – Where the mother is responsible for the full time care of the child – Where it appropriate to order the father to pay the costs of and incidental to this appeal for the mother and the Child Support Registrar.

Bankruptcy Act 1966 (Cth) ss 60(2), (3)
Child Support (Assessment) Act 1989 (Cth) ss 3, 4, 98S, 114, 117
Child Support (Registration and Collection) Act 1988 (Cth) ss 79D – 87AA, 93, 95(3), 107A(1), 110B, 110D

Family Law Act 1975 (Cth) s 117

Child Support Registrar & Crabbe and Anor (2014) FLC 98-062
Gyselman v Gyselman (1992) 107 FLC 92-289
Hendy and Deputy Child Support Registrar and Webb [2001] FamCA 632
Redmond v Official Trustee in Bankruptcy [2014] FCCA 2819
Redmond & Redmond and Ors [2014] FamCAFC 87
Wild v Ballard (1997) FLC 92-771

APPELLANT:

Mr Redmond

FIRST RESPONDENT:	Ms Redmond
SECOND RESPONDENT:	Child Support Registrar

FILE NUMBER:

BRC

4493

2011

APPEAL NUMBER:

2013

DATE DELIVERED:

19 February 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bryant CJ, May & Kent JJ

HEARING DATE:

15 April 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

28 June 2013

LOWER COURT MNC:

[2013] FCCA 638

REPRESENTATION

FOR THE APPELLANT:

Mr Redmond in person

FOR THE FIRST RESPONDENT:

Ms Redmond in person

COUNSEL FOR THE SECOND RESPONDENT:	Dr Brasch QC
SOLICITOR FOR THE SECOND RESPONDENT	Australian Government Solicitor

Orders

Leave to appeal the order of Judge Coates made 28 June 2013 is refused.
The appellant father pay the first respondent mother, her costs of and incidental to this appeal, such costs to be assessed.
The appellant father pay the second respondent Child Support Registrar’s costs of and incidental to this appeal, such costs to be assessed.

IT IS NOTED that publication of this judgment by this…

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

AGLC: Redmond and Redmond & Anor [2016] FamCAFC 17
Case: [2016] FamCAFC 17
Decision Date: 19 February 2016

CaseChat Overview and Summary

The case of Redmond and Redmond & Anor involves an appeal by the father against a decision to dismiss his appeal concerning an increase in his child support liability. The initial decision was made by the Social Security Appeals Tribunal (SSAT), which was upheld by the primary judge. The father contested the SSAT's decision on several grounds, including procedural unfairness and bias. The mother had applied to the Child Support Agency for a departure based on the costs of educating the child. The father's application for leave to appeal was assessed by the court, which ultimately determined that the appeal did not demonstrate any substantive rights being affected by an error of principle.

The primary legal issue before the court was whether the father's allegations of procedural unfairness or bias in the SSAT's hearings warranted a reconsideration of the child support liability. The court examined the procedural fairness afforded to the father during the SSAT's hearings and assessed whether there was any bias on the part of the SSAT. Additionally, the court addressed the question of costs, considering the mother's and the Child Support Registrar's requests for an order for costs against the father, who was a declared bankrupt with a litigious history. The mother had full-time care of the child, and the court needed to determine the appropriateness of ordering the father to pay the costs of the appeal.

The court found that the father had been afforded procedural fairness in the SSAT's hearings and that there was no bias on the part of the SSAT. Consequently, the court refused the father's application for leave to appeal the primary judge's decision. The court also considered the costs aspect of the case and determined that it was appropriate to order the father to pay the costs of the appeal for both the mother and the Child Support Registrar. These costs were to be assessed.

The court made several orders in the case. Firstly, it refused the father's application for leave to appeal the primary judge's decision. Secondly, it ordered the father to pay the mother's costs of and incidental to the appeal, with these costs to be assessed. Finally, it ordered the father to pay the Child Support Registrar's costs of and incidental to the appeal, with these costs also to be assessed.

Orders

Orders of the court

Leave to appeal the order of Judge Coates made 28 June 2013 is refused.

The appellant father pay the first respondent mother, her costs of and incidental to this appeal, such costs to be assessed.

The appellant father pay the second respondent Child Support Registrar’s costs of and incidental to this appeal, such costs to be assessed.

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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