Trejo and Walker and Anor (SSAT Appeal) - [2010] FMCAfam 1393

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TREJO & WALKER & ANOR (SSAT APPEAL)

[2010] FMCAfam 1393

CHILD SUPPORT – Appeal from SSAT – leave to appeal 7 months out of time – history of the proceedings – conduct of the parties – nature of the litigation – consequences for the parties of the refusal of the application for extension of time.

Child Support (Assessment) Act 1989, s.117
Child Support (Registration and Collection) Act 1988, ss.110B, 110C
Federal Magistrates Court Rules 2001, rr.3.05, 25A.06

Agrippa & Horton [2010] FMCAfam 1144
Bagley & Bagley [2010] FMCAfam 215
Black & Kellner (1992) 15 Fam LR 343

Gallo v Dawson (1990) 64 ALJR 458

Humphries & Berry [2008] FMCAfam 409

Kioa v West (1985) 159 CLR 550

PJ & Child Support Registrar (SSAT Appeal) [2007] FMCAfam 829
Weir & Weir (1992) 16 Fam LR 154

Applicant:

MR TREJO

First Respondent:

MS WALKER

Second Respondent:

CHILD SUPPORT REGISTRAR

File Number:

SYC 6014 of 2009

Judgment of:

Sexton FM

Hearing date:

27 August 2010

Date of Last Submission:

27 August 2010

Delivered at:

Sydney

Delivered on:

14 December 2010

REPRESENTATION

Solicitors for the Applicant:

South West Sydney Legal Centre

Solicitors for the First Respondent:

No appearance

Solicitors for the Second Respondent:

Australian Government Solicitors

ORDERS

The Application for leave to appeal out of time is dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYC 6014 of 2009

MR TREJO

Applicant

And

MS WALKER

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Introduction

The Applicant Father, Mr Trejo, applies for leave to appeal out of time from a decision of the Social Security Appeals Tribunal dated 13 May 2009. If successful on the leave issue, he appeals that decision, requesting that the matter be remitted to the Tribunal for re-hearing.
The Applicant Father and the Respondent Mother, Ms Walker, are the parents of [X], born [in] 1999. They separated when [X] was aged one. [X] has always lived primarily with the Mother and the Applicant is liable for child support. [X] spends three nights a fortnight with the Applicant and [X] is his only dependent.
The Applicant’s usual occupation is a self-employed [omitted]. He has also derived income from a block of three units the parties purchased in 1999 while still living together[1]. According to the Respondent Mother, the Father has paid only $1200 in total child support between 2001, when the case was first registered with the Child Support Agency, and the Tribunal hearing in May 2009. The Applicant claims to have paid $3,000 during that same period.
[1] At Folio P25 of Appeal papers
On the application for leave to extend time for filing his Notice of Appeal, the Applicant contends[2] that he was unable to file the Notice within the statutory time frame because he was anxious and depressed, he…

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: [2010] FMCAfam 1393
Decision Date

CaseChat Overview and Summary

The applicant, Mr Trejo, applies for leave to appeal out of time from a decision of the Social Security Appeals Tribunal (SSAT). The Tribunal decided that the applicant's child support liability was to be assessed on the basis of his earning capacity, which it found to be $55,000 a year, and not on the basis of his income. The Tribunal found that the applicant had not demonstrated that his decision not to work was justified on the basis of his health or his caring responsibilities. The Tribunal found the applicant to be an unreliable witness and did not accept that he had not worked since January 2008 because of a shoulder injury. The applicant argues that the Tribunal failed to consider his health and financial circumstances, and to afford him procedural fairness. The court found that the applicant had not given an adequate explanation for the delay in filing his Notice of Appeal, and that he did not have an arguable case. The court therefore refused the applicant's application for leave to appeal out of time against the Tribunal's decision. The appeal is dismissed.

Orders