Simmons and Simmons and Anor - [2017] FCCA 15

FEDERAL CIRCUIT COURT OF AUSTRALIA

SIMMONS & SIMMONS & ANOR

[2017] FCCA 15

Catchwords:
CHILD SUPPORT – Application for extension of time in which to bring appeal from child support decision of the Administrative Appeals Tribunal – whether delay explained – whether delay needs to be contumacious – whether “less restrictive” approach applies in child support matters – delay not adequately explained – cases cited by counsel not establishing the general propositions asserted – proposed grounds of appeal wholly deficient in merit – application for extension of time dismissed.

Legislation:

Administrative Appeals Tribunal Act 1978 (Cth), ss.44AAA, 44(2A)
Child Support (Assessment) Act1989, ss.4(2)(d), 105, 117(2)(b)(ii)

Family Law Act 1975, ss.66E, 94AA

Federal Circuit Court Rules 2001, r.16.05

Cases cited:
Babett & Falconer [2015] FamCAFC 124
Bassingthwaite & Leane (1993) FLC 92-410
B & M [2004] FMCAfam 161
Gallo v Dawson [1990] HCA 30
Gilmour & Gilmour (1995) FLC 92-591
Hunter Valley Developments v Cohen [1984] FCA 116; (1984) 3 FCR 344
Maitland v Nationwide News Pty Ltd [2004] NSWCA 155
Mee & Ferguson (1986) FLC 91-716
Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274
MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133
Outboard MarineAustralia Pty Ltd v Byrnes [1974] 1 NSWLR 27
Richardson & Older [2008] FamCA 43
Venson & Venson [2010] FamCA 501

Applicant:

MR SIMMONS

First Respondent:

MS SIMMONS

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

MLC 10793 of 2013

Judgment of:

Judge Burchardt

Hearing date:

11 November 2016

Date of Last Submission:

11 November 2016

Delivered at:

Melbourne

Delivered on:

20 January 2017

REPRESENTATION

Counsel for the Applicant:

Mr Bacon

Solicitors for the Applicant:

Manby & Scott Lawyers

Counsel for the First Respondent:

Mr Lynch

Solicitors for the First Respondent:

Peter Lynch

Counsel for the Second Respondent:

Ms Johnson

Solicitors for the Second Respondent:

Mills Oakley Lawyers

ORDERS

The application for an extension of time filed by the Applicant dated 22 September 2016 be dismissed.
In relation to the proceedings before Judge Bender on 30 August 2016, the Applicant pay the First Respondent’s costs in the sum of $1,000 and the Second Respondent’s costs in the sum of $500.
In relation to the proceedings before Judge Burchardt on 20 January 2017, the Applicant pay the First Respondent’s costs in the sum of $3,478 and the Second Respondent’s costs in the sum of $3,478.
The costs to be paid by the Applicant in Order 2 and 3 herein be paid within 60 days.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10793 of 2013

MR SIMMONS

Applicant

And

MS SIMMONS

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introductory

The applicant father has filed a notice of appeal on 22 September 2016 seeking to appeal, pursuant to s 44AAA of the Administrative Appeals Tribunal Act…

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: [2017] FCCA 15
Decision Date: 20 January 2017

CaseChat Overview and Summary

The proceedings involved an application by the Applicant for an extension of time, brought before Judge Burchardt. The First and Second Respondents were the opposing parties. The core of the dispute revolved around the Applicant's request to extend time for some action, which the court ultimately dismissed.

The primary legal issue before the court was whether to grant the Applicant's application for an extension of time. This required the court to consider the merits of the application and the reasons provided by the Applicant for seeking the extension.

Judge Burchardt dismissed the application for an extension of time. The court ordered the Applicant to pay the costs of both the First and Second Respondents in relation to earlier proceedings before Judge Bender and the current proceedings before Judge Burchardt. These costs were to be paid within 60 days.

Orders

Orders of the court

The application for an extension of time filed by the Applicant dated 22 September 2016 be dismissed.

In relation to the proceedings before Judge Bender on 30 August 2016, the Applicant pay the First Respondent’s costs in the sum of $1,000 and the Second Respondent’s costs in the sum of $500.

In relation to the proceedings before Judge Burchardt on 20 January 2017, the Applicant pay the First Respondent’s costs in the sum of $3,478 and the Second Respondent’s costs in the sum of $3,478.

The costs to be paid by the Applicant in Order 2 and 3 herein be paid within 60 days.

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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