FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abani & Child Support Registrar [2021] FedCFamC1A 52
Appeal from: Child Support Registrar & Abani (No. 2) [2020] FCCA 3381 Appeal number(s): EAA 4 of 2021 File number(s): SYC 314 of 2018 Judgment of: AUSTIN, BAUMANN & WILLIAMS JJ Date of judgment: 5 November 2021 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – CHILD SUPPORT – Where the applicant sought leave to appeal against orders requiring him to make payment to the Child Support Registrar – Apprehended Bias – Adequacy of reasons – Where some of the proposed grounds of appeal are submissions and argument – Where the proposed grounds of appeal failed to demonstrate any error of law, are devoid of merit and have no reasonable prospect of success – Application for leave to appeal dismissed – FAMILY LAW – COSTS – Where the applicant’s appeal was wholly unsuccessful – Applicant ordered to pay costs of the Child Support Registrar in a fixed sum. Legislation: Child Support (Registration and Collection) Act 1988 (Cth) ss 17, 30, 113, 113A 116
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth) sch 5, pt 4, div 2, ss 28(1), 28(2)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28(1)(a)(ii)
Family Law Rules 2004 (Cth) r 22.03
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 11.03
Federal Circuit Court Rules 2001 (Cth) rr 25B.07, 25B.09
Cases cited: Abani & Abani & Anor (SSAT Appeal) (No. 2) [2016] FCCA 1804
Abani & Abani & Anor (SSAT Appeal) [2015] FCCA 3617
Abani & Abani & Anor (SSAT Appeal) [2016] FCCA 2054
Bhatt & Acharya (Costs) [2017] FamCAFC 71
Charisteas v Charisteas [2021] HCA 29
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Eames & Eames (2018) FLC 93-866; [2018] FamCAFC 204
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Johnson v Johnson (2000) 201 CLR 488; [2000] HCA 48
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; [1976] HCA 39
Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88
Number of paragraphs: 59 Date of hearing: 12 October 2021 Place: Heard in Sydney (via video link), delivered in Newcastle The Applicant: Litigant in-person Counsel for the Respondent: Ms Heger Solicitor for the Respondent: Mills Oakley ORDERS
EAA 4 of 2021
SYC 314 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR ABANI
Applicant
AND: CHILD SUPPORT REGISTRAR
Respondent
ORDER MADE BY:
AUSTIN, BAUMANN &…
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- Abani & Child Support Registrar [2021] FedCFamC1A 52
- Case
- [2021] FedCFamC1A 52
- Decision Date
CaseChat Overview and Summary
The case of Abani & Child Support Registrar involved an application for an order of payment of child support liability by the Child Support Registrar against the applicant, who was the father of five children under the age of 18. The Registrar filed an application in the Federal Circuit Court of Australia seeking orders for payment of a child support debt owed by the applicant, following which interim orders were made restraining the applicant from dealing with his interest in real property. The application for payment of the child support debt was subsequently heard and adjourned multiple times to allow the applicant to pay the debt or provide a valuation of the property. The primary judge made the Orders that are the subject of the appeal on 10 December 2020. The applicant sought leave to appeal the decision of the primary judge to the Full Court, arguing that the primary judge failed to properly consider the evidence of the property valuations and the duty of care owed by the Registrar and Services Australia.
The legal issues before the Full Court included whether the primary judge properly considered the evidence of the property valuations provided by the applicant and whether the applicant had established that there was an error in instructions for the February 2019 valuation. The Court also had to determine if there was any merit to the applicant’s claim that the primary judge failed to properly consider the evidence, and if the applicant's assertion that the primary judge failed to consider the valuations before the Court established any appealable error. The Full Court needed to consider whether the application for leave to appeal was attended by sufficient doubt to warrant reconsideration and whether the applicant had demonstrated that substantial injustice would result if leave were refused.
The Full Court found that the primary judge had properly considered the evidence of the property valuations provided by the applicant, including the applicant’s challenge to the valuation. The Court held that it was open to the primary judge to accept the drive-by valuation of the property as identifying equity available to meet the outstanding child support liability. The Court found no basis for the applicant’s assertion that the primary judge failed to consider the valuations before the Court, and no merit in the applicant’s claim that there was an error in instructions for the February 2019 valuation. The Court concluded that there was no appealable error in the primary judge’s decision and dismissed the application for leave to appeal.
The Full Court also found that the application for leave to appeal was devoid of merit and that the Child Support Registrar had unnecessarily incurred substantial costs. The Court held that the applicant should pay the costs of the Child Support Registrar on a party/party basis, despite the applicant’s limited financial means, as the application had no regard to relevant authority and was devoid of merit. The Full Court ordered that the applicant pay the costs of the Child Support Registrar, calculated at $7,500 according to the Schedule of Costs filed and orally amended by counsel for the respondent.
The legal issues before the Full Court included whether the primary judge properly considered the evidence of the property valuations provided by the applicant and whether the applicant had established that there was an error in instructions for the February 2019 valuation. The Court also had to determine if there was any merit to the applicant’s claim that the primary judge failed to properly consider the evidence, and if the applicant's assertion that the primary judge failed to consider the valuations before the Court established any appealable error. The Full Court needed to consider whether the application for leave to appeal was attended by sufficient doubt to warrant reconsideration and whether the applicant had demonstrated that substantial injustice would result if leave were refused.
The Full Court found that the primary judge had properly considered the evidence of the property valuations provided by the applicant, including the applicant’s challenge to the valuation. The Court held that it was open to the primary judge to accept the drive-by valuation of the property as identifying equity available to meet the outstanding child support liability. The Court found no basis for the applicant’s assertion that the primary judge failed to consider the valuations before the Court, and no merit in the applicant’s claim that there was an error in instructions for the February 2019 valuation. The Court concluded that there was no appealable error in the primary judge’s decision and dismissed the application for leave to appeal.
The Full Court also found that the application for leave to appeal was devoid of merit and that the Child Support Registrar had unnecessarily incurred substantial costs. The Court held that the applicant should pay the costs of the Child Support Registrar on a party/party basis, despite the applicant’s limited financial means, as the application had no regard to relevant authority and was devoid of merit. The Full Court ordered that the applicant pay the costs of the Child Support Registrar, calculated at $7,500 according to the Schedule of Costs filed and orally amended by counsel for the respondent.
Orders
Orders of the court
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Background
Background to the litigation
The application before the primary judge was an application for an order for payment of the applicant’s child support liability pursuant to r 25B.09 of the Federal Circuit Court Rules and s 113 of the Registration Act, and security by way of charging orders, and not an application for enforcement.BACKGROUND The applicant and the payee are the divorced parents of five children under the age of 18. On 19 January 2018, the Child Support Registrar filed in the Federal Circuit Court of Australia an Application in a Case, pursuant to s 113 of the Registration Act seeking orders for payment of a child support debt owed by the applicant. On 15 May 2018, a judge of the Federal Circuit Court of Australia made orders listing the matter for further determination in September 2018, as well as procedural and interim orders restraining the applicant from dealing in any way with his interest in his real property and water access licence. On 14 June 2019, the application was heard by the primary judge. After a relatively brief hearing, the application was adjourned to afford the applicant a further opportunity to pay his debt. On 17 June 2019, the applicant paid the Child Support Registrar $66,000 in partial satisfaction of the outstanding child support liability and the Registrar agreed to remit late payment penalties of $15,371.24. On 2 August 2019, the hearing before the primary judge continued, and at the conclusion orders were made further adjourning the hearing to 18 November 2019 to enable the applicant to file an application to reduce the child support debt and provide an opportunity to obtain a valuation of the property. On 18 November 2019, the hearing resumed before the primary judge and was again adjourned part-heard. The application for reduction of the debt was dismissed and the applicant was provided with another opportunity to pay the child support debt. The Orders noted that in respect of the final hearing, an adjournment was unlikely to be entertained in the absence of exceptional circumstances. The further hearing was initially adjourned to 2 April 2020, but subsequently adjourned by consent due to the Covid-19 pandemic. On 10 December 2020, the hearing resumed before the primary judge. The Orders which are the subject of the application for leave to appeal were made and the primary judge gave reasons ex tempore.LEAVE TO APPEAL Section 28(1)(a)(ii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) provides that leave is required to appeal a judgment of the Federal Circuit and Family Court of Australia (Division 2) exercising jurisdiction under the Registration Act. Although the Orders the subject of the application for leave to appeal were made by a judge of the Federal Circuit Court of Australia, that provision applies to this appeal (Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act 2021 (Cth), sch 5, pt 4, div 2, ss 28(1) and 28(2)). Pursuant to r 22.03 of the Family Law Rules 2004 (Cth) (the then applicable rules of court), a Notice of Appeal, where leave to appeal is sought, must be filed within 28 days after the date of the relevant order.
Evidence
Evidence Before The Court
The applicant claims that he is owed a duty of care by both the Child Support Registrar and Services Australia, which has not been met by either of them. Whatever might be said about this, the asserted denial of natural justice does not include any complaint about the conduct of the primary judge. There is no logical connection between the asserted denial of natural justice, the error in instructions for the February 2019 valuation and the ultimate decision of the primary judge. There is no merit in this ground of appeal and it also fails.Ground 1 – Failure to properly consider the evidence Turning now to the remaining grounds of appeal, the applicant complains that the primary judge failed properly to consider the evidence of the valuations supplied by him which demonstrate that the property value was around $1 million. He also disputes the two “restricted assessments” relied upon by the respondent because they were kerbside assessments. It was not disputed that during the protracted course of the proceedings both parties provided a number of valuations of the property. The applicant provided a valuation dated 11 October 2013 of $950,000 (Exhibit F, 14 July 2019), a valuation dated 22 January 2019 of $1.2 million to $1.25 million (Applicant’s affidavit filed 31 January 2019, Annexure B) and a valuation dated 2 September 2019 of $1.1 million (Applicant’s affidavit filed 28 October 2019, Annexure B). All of the valuations were out of date at the time of the final hearing before the primary judge on 10 December 2020. The respondent provided valuations dated 28 November 2017 of $1,304,000 to $1,477,000 (Ms R’s affidavit filed 19 January 2018, Annexure S), a valuation dated 14 February 2019 of $3 million (Ms K’s affidavit filed 11 March 2019, Annexure G) and a Kerbside Assessment Valuation Report dated 4 December 2020 of $2 million (Exhibit 1, 10 December 2020). The primary judge specifically referred to the drive-by valuation of the property of $2 million, the fact that the applicant disputes the valuation and whether or not the valuation is correct, it clearly identifies equity in the property which is available to meet the outstanding child support liability (at [3]). It can be inferred from those statements that the primary judge was acutely aware of the applicant’s challenge to the valuation and properly considered that challenge, prior to making the Orders. That was entirely open on the evidence before the Court. There is no basis for the applicant’s assertion that the primary judge failed to consider the valuations before the Court and in particular the valuations obtained by him. Furthermore, the applicant does not identify how his assertion establishes any appealable error, having regard to the nature of the application before the Court. The application with which the primary judge was dealing was an application for orders for the payment of the applicant’s child support liability and security by way of charging orders pending payment of the debt owed. It was not an enforcement application.
Decision
Reasons for decision
There is no merit in this ground of appeal.Conclusion and costs Having regard to the foregoing, the application for leave to appeal will be dismissed. The primary judge’s reasons are neither attended by sufficient doubt to warrant a reconsideration by the Full Court, and nor was it established by the applicant (or even addressed) that substantial injustice would result if leave were refused, supposing the decision to be wrong. If the applicant was unsuccessful, the Child Support Registrar applied for the applicant to pay its costs on a party/party basis which are calculated at $7,500 according to the Schedule of Costs filed and orally amended by counsel for the respondent. The respondent relied on the applicant being wholly unsuccessful, as a grounds for departure from the usual rule that each party shall bear his or her own costs expressed in s 117(1) of the Family Law Act 1975 (Cth). The applicant opposed any order for costs and submitted that he was of limited financial means, there was little or no equity in the property and that costs as sought by the Child Support Registrar would impose an onerous financial burden on him, in addition to his existing child support liability and outstanding costs. Because the application was devoid of merit and had no regard to relevant authority, and the Child Support Registrar has unnecessarily incurred substantial costs, we are persuaded that there are circumstances justifying an order for costs. Even if the applicant is of limited financial means, an order should be made that he pays the costs of the Child Support Registrar. Impecuniosity does not generally prevent the making of a costs order and nor should it in the present case (Bhatt & Acharya (Costs) [2017] FamCAFC 71).
Ratio Decidendi
Legal Principle Established
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