BVG17 v BVH17 [2019] FCAFC 17

FEDERAL COURT OF AUSTRALIA

BVG17 v BVH17 [2019] FCAFC 17 Appeal from: Barton v Bergin & Anor [2017] FCCA 1112

File number: NSD 1313 of 2017

Judges: COLLIER, RANGIAH AND PERRY JJ

Date of judgment: 8 February 2019

Catchwords: ADMINISTRATIVE LAW – application for extension of time and application for leave to appeal and against decision of the Federal Circuit Court dismissing an appeal from the Tribunal pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) – where applicant applied for a change of assessment of the annual rate of child support pursuant to s 98B of the Child Support (Assessment) Act 1989 – whether there were grounds under ss 98C and 117 of the CSA Act for departure from the formula – where applicant contended that the grounds from departure were the result of expenses in the form of legal fees, mediation and psychiatric assessments – consideration of correct test applicable under s 71C of the Child Support (Registration and Collection) Act 1988 (Cth) – whether legal costs to be considered under s 117 of the CSA Act PRACTICE AND PROCEDURE – application for leave to appeal from interlocutory order to dismiss summarily an appeal from the Tribunal made under r 13.10 of the Federal Circuit Court Rules 2001 on the basis that applicant had disclosed no reasonable cause of action – whether interlocutory judgment is attended by sufficient doubt to warrant reconsideration by the appellate Court – application for extension of time – length of and explanation for the delay – nature of the litigation – prejudice to the respondents as a result of the delay – prospect of success on appeal

Legislation: Acts Interpretation Act 1901 (Cth) s 15AB(1) Administrative Appeals Tribunal Act 1975 (Cth) ss 3, 44, 44AAA, 44AAA(1) Child Support (Assessment) Act 1989 (Cth) ss 4(1), 98A, 98B, 98C, 98S, 98S(1)(a), 98S(1)(g), 117(2), 117(2)(a)(iv), 117(2)(b), 117(2)(b)(i), 117(2)(b)(i)(A), 117(2)(c)(ii), 117(3B), 117(4), 117(4)(b), 117(5); Pts 5, 6A Child Support (Registration and Collection) Act 1988 (Cth) ss 39(5), 71, 71A, 71C, 80 item 15, 86, 87, 87(1), 87(1)(a)(i), 87(1)(a)(ii), 89, 89(b), 89 item 2 Child Support (Registration and Collection) Regulations 1988 (Cth) regs 5C, 5D, 5D(f) Child Support Legislation Amendment Act (No. 2) 1992 (Cth) Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) Family Court Rules 2004 (Cth) r 22.03 Family Law Act 1975 (Cth) Family Law Amendment (Shared Parental Responsibility) Act 2006 (Cth) Family Law Amendment Bill (Shared Parental Responsibility) Bill 2005 (Cth) Family Law Reform (Consequential Amendments) Act 1995 (Cth) Federal Circuit Court Rules 2001 (Cth) r 13.10 Federal Court of Australia Act 1976 (Cth) ss 24(1)(d), 28(1), 28(1)(b) Federal Court Rules 2011 (Cth) r 35.13(a), 36.05