Wellington & Child Support Registrar - [2012] FamCAFC 34

FAMILY COURT OF AUSTRALIA

WELLINGTON &
CHILD SUPPORT REGISTRAR

[2012] FamCAFC 34

FAMILY LAW – APPEAL – Review of regional appeal Registrar’s order granting an extension of time for filing of documents – Where on the due date for filing the respondent sought an extension of time to file and serve a summary of argument – Where the respondent did not seek an extension by means of a formal application but rather by facsimile correspondence – Where the appellant applicant objected to his consent not having been sought by the respondent, to the extension of time itself and to the Registrar hearing the matter – Where the hearing occurred by telephone – Where the documents were filed but not served in time with the Registrar’s order extending the time – Where the documents were served by email on the due date and by post one day later – Where it could not be said the appellant applicant had not been served – Service deemed effective.

FAMILY LAW – APPEAL – Hearing de novo – Where the respondent had not been served with a sealed copy of the appellant’s summary of argument – Where a Notice of Constitutional Matter had been filed – Where there was no prejudice to the appellant in granting the extension of time as the hearing of the appeal had not yet been listed – Where the extension of time should have been granted – application dismissed.

FAMILY LAW – COSTS – There be no order as to costs.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPELLANT:

Mr Wellington

RESPONDENT:

Child Support Registrar

FILE NUMBER:

BRC

4659

2008

APPEAL NUMBER:

2011

DATE DELIVERED:

8 March 2012

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

7 March 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 April 2011

LOWER COURT MNC:

[2011] FMCAfam 312

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Brasch

SOLICITOR FOR THE RESPONDENT:

Australian Government Solicitor

Orders

The application filed 24 January 2012 is dismissed.
There be no order as to costs.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wellington & CSR has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE

Appeal Number: NA 36 of 2011
File Number: BRC 4659 of 2008

Mr Wellington

Appellant

And

Child Support Registrar

Respondent

REASONS FOR JUDGMENT

Introduction

This is an application by the appellant in these appeal proceedings filed on

24 January 2012 seeking review of the regional appeal Registrar’s orders made on 16 January 2012.
The orders of the regional appeal Registrar were as follows:
1) That the time for the Respondent to file and serve the Summary of Argument and List of Authorities be extended until 23 January 2012.
2) That the Appellant file and serve an affidavit…

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: [2012] FamCAFC 34
Decision Date: 8 March 2012

CaseChat Overview and Summary

In the matter of Wellington & Child Support Registrar, the respondent sought an extension of time to file and serve a summary of argument. The appellant, Wellington, objected to the extension, arguing that his consent was not obtained, and that the extension itself was inappropriate. The case was heard by the Family Court of Australia, which granted the extension. The appellant subsequently filed an appeal to the Full Family Court of Australia against the Registrar's decision. The Full Court found that the extension should have been granted, as there was no undue prejudice to the appellant, and the appeal had not yet been listed for hearing. The Full Court dismissed the appeal and made no order as to costs.

The legal issues that the Full Court was required to decide included whether the extension of time was appropriate, and whether the appellant had been prejudiced by the extension. The Full Court considered the procedural orders made by the Registrar, and the emails exchanged between the parties. The Full Court also considered the fact that the appeal had not yet been listed for hearing, and that the extension would not delay the appeal. The Full Court found that the extension should have been granted, as there was no undue prejudice to the appellant.

The Full Court's reasoning was based on the fact that the appeal had not yet been listed for hearing, and that the extension would not delay the appeal. The Full Court also found that the appellant had not been prejudiced by the extension, as the documents were served by email on the due date and by post one day later. The Full Court noted that it could not be said that the appellant had not been served, and that service was deemed effective. The Full Court also found that there was no prejudice to the appellant in granting the extension of time, as the hearing of the appeal had not yet been listed.

The final orders made by the Full Court were that the application filed 24 January 2012 was dismissed, and that there be no order as to costs. The Full Court found that the extension of time should have been granted, and that the appeal was dismissed. The Full Court did not make any order as to costs.

Orders

Orders of the court

The application filed 24 January 2012 is dismissed.

There be no order as to costs.

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

Following the hearing, the Registrar made the orders. The reasons for the Registrar are repeated here in full:REASONS FOR DECISION1. On 13 July 2011 Registrar Spink made procedural orders in this appeal, including, inter alia:6. That the Appellant within 28 days file and serve an affidavit of service, evidencing the service of the Notice of Constitutional Matter on each of the Attorney-Generals [sic] for the Commonwealth, State and Northern Territory Governments and include in that affidavit the advice of each Attorney-General as to whether or not they seek to be heard in this appeal.7. That the Appellant file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 25 November 20118. That the Respondent file and serve the Summary of Argument and List of Authorities upon which they wish to rely by 4.00pm on Friday 23 December 20119. That the appeal be listed for hearing in the next available Brisbane Full Court sittings.2. By email to the father and to the Court dated 23 December 2011 the respondent Child Support Registrar sought an extension of time to file the summary of argument and list of authorities to 20 January 2012. 3. By email on 10 January 2012 the appellant father objected to the extension of time requested.4. I listed this case before me today for consideration of the request for extension.5. The appellant father sent further emails to the Court dated 13 January 2012 and 15 January 2012 addressing these matters.6. At the hearing today Ms Brasch of counsel appearing for the respondent Child Support Registrar requested the time for filing be extended to 23 January 2012.7. At the outset, I advised the parties that due to the number of appeals listed before this appeal it was unlikely that this appeal may obtain a date for hearing prior to May this year.8. I have had regard to the email of the respondent Child Support Registrar dated 23 December 2011 and emails of the father dated 13 January 2012 and 15 January 2012 detailed above and the oral submissions of the parties today.9. I refer to paragraph 9 of the orders of Registrar Spink made 13 July 2011. By that order this appeal has since that time been on the list of matters awaiting allocation of a date of hearing before the Full Court. I note it is unlikely this Appeal may obtain a date for hearing before the May 2012 sittings of the Full Court. 10. Since the orders of 13 July 2011 the appellant father has given Notice of a Constitutional Matter in November 2011, filed an amended Notice of Appeal on 25 November 2011; filed his summary of argument on 25 November 2011 and filed his list of authorities on 12 December 2011. 11. In those circumstances the matter which I consider of most relevance in considering the request for extension is whether undue prejudice will be caused to the appellant by such an extension. As the appeal remains on the list of matters awaiting an appeal hearing, the appeal is not delayed by the extension of time sought, and given the anticipated timeframe to appeal hearing outlined above, I am satisfied that the extension sought will not cause undue prejudice to the appellant father. I do not consider it necessary to traverse the balance of the matters addressed in the correspondence of the respondent Child Support Registrar or the appellant father as I do not consider they take the matter any further.12. I therefore grant the request of the respondent Child Support Registrar for an extension of time to file the summary of argument and list of authorities to 23 January 2012 and so order.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.