Abani & Child Support Registrar
[2021] FedCFamC1A 52
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
Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44
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 & WILLIAMS JJ
DATE OF ORDER:
5 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The application for leave to appeal is dismissed.
2.The applicant pay the costs of the respondent fixed at $7,500 within 90 days.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Abani & Child Support Registrar has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN, BAUMANN & WILLIAMS JJ:
By a Notice of Appeal filed 6 January 2021, the applicant seeks leave to appeal from Orders made by a judge of the Federal Circuit Court of Australia (as the Court was then known) on 10 December 2020.
The primary judge ordered that the applicant pay $33,013.22 to the Child Support Registrar within 90 days. This comprised a child support debt of $25,259.72 as evidenced by a certificate pursuant to s 116(2) of the Child Support (Registration and Collection) Act 1988 (Cth) (“the Registration Act”) and costs of $7,753.50. The Orders were made pursuant to r 25B.07 of the Federal Circuit Court Rules 2001 (Cth) (“Federal Circuit Court Rules”), the then applicable rules of the Federal Circuit Court of Australia, and s 113(1) of the Registration Act. Further orders were made restraining the applicant from dealing with and charging his interest in his property and water access licence, pending payment in full of his child support debt and costs.
The applicant contends that the Orders were infected by judicial bias as well as other legal, factual and discretionary errors. Several of the applicant’s grounds of appeal take issue with the primary judge’s reliance on a valuation of his real property, however these complaints do not impugn the basis of the primary judge’s Orders.
The respondent opposes the application for leave to appeal, and if the Court grants leave, submits that the appeal should be dismissed with costs. The respondent contends that the applicant did not at first instance, and does not now, provide any evidence of facts which would displace the prima facie evidence of the s 116(2) certificate, which states the amount of the applicant’s debt to the Commonwealth, as recorded in the Child Support Register.
For the reasons that follow, there is no proper basis for the application for leave to appeal and it will be dismissed.
LEGISLATIVE SCHEME
Section 17(2) of the Registration Act provides that a liability for child support pursuant to a child support assessment, is a “registrable maintenance liability”. Section 30(1) of the Registration Act provides that upon registration, a registerable maintenance liability is a debt due and payable to the Commonwealth. Section 113 of the Registration Act provides that the debt is payable to and recoverable by the Child Support Registrar. Production of a document under s 116(1) and a certificate under s 116(2) of the Registration Act is prima facie evidence of the existence and particulars of a child support debt owed by a person to the Commonwealth.
Rule 25B.09 of the Federal Circuit Court Rules (now r 11.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)) prescribes that prior to an enforcement application, the person seeking to enforce payment of a child support liability must first obtain an order for payment of the amount by filing both an application and a supporting affidavit (r 25B.09(2)(a)), and if the payee is the Child Support Registrar, or is seeking to recover a liability under s 113A of the Registration Act, a certificate under s 116 of the Registration Act (r 25B.09(2)(b)).
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.
In the Notice of Appeal under the heading “Leave to Appeal” the applicant has sought leave to appeal on the basis of purported advice that his appeal may not be processed by the court within the requisite 28 day period after the making of the appealed Orders, because of the Christmas shutdown.
As the Orders which are the subject of the proposed appeal were made on 10 December 2020 and the Notice of Appeal was filed on 6 January 2021, the applicant is not required to apply for an extension of time. As has been mentioned however, he does require leave to appeal.
On 13 August 2021, Orders were made by an Appeal Registrar, subject to any order of the Full Court, that the proposed appeal be argued with the application for leave to appeal. We agree that the application for leave to appeal should be heard concurrently with the appeal argument, even though the Notice of Appeal does not address any facts relied upon in support of the application for leave to appeal.
The test to be applied in applications for leave to appeal is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the appellate court, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 (“Medlow”)). In Eames & Eames (2018) FLC 93-866, at [81]–[82] the Full Court affirmed Medlow as the appropriate test to be applied in child support matters noting that it “has the flexibility to take into account, where necessary, any particular matters arising out of the fact that the proceedings concern child support”.
PROPOSED GROUNDS OF APPEAL
In the Notice of Appeal, the applicant sets out six purported grounds of appeal, although some of these grounds are in fact submissions and argument. Adopting the applicant’s terminology, the grounds of appeal are that the primary judge failed properly to consider the evidence, was plainly wrong, failed to accord procedural fairness, denied natural justice, failed to provide adequate reasons and was biased.
Although the intended appeal is from the Orders made by the primary judge on 10 December 2020, none of the Orders are under any challenge. The grounds of appeal do not attack either the primary Order which quantifies the child support debt in accordance with the s 116(2) certificate (Order 1), the Order which quantifies the Registrar’s legal costs (Order 2), the Order directing the applicant’s payment of the child support debt and legal costs within 90 days (Order 3), the Order discharging formal orders (Order 4), the Order made to secure payment of the child support debt and costs (Order 5), or the default Order requiring immediate payment in the face of non-compliance (Order 6). Rather, aside from challenges to the fairness of the hearing, the proposed appeal is directed to the asserted incorrect admission into evidence of an expert report valuing the applicant’s real property, which property was used to secure the child support debt and legal costs. Since the valuation evidence had no bearing at all upon the substance of the subject orders, the grounds which challenge the admission of such evidence are misconceived. Nevertheless, as some grounds separately challenge the procedural fairness of the hearing and the primary judge’s impartiality, we intend to briefly discuss the grounds of appeal which have been advanced to demonstrate their lack of merit.
Ground 6 – Bias
We deal firstly with the issue of bias because a finding of either apprehended or actual bias, and by extension procedural unfairness, must result in a retrial, irrespective of the outcome of the findings on other issues: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 at 611–612 (Kirby and Crennan JJ). See also Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128 at [9] (Basten JA).
This ground of appeal did not seek to distinguish between actual and apprehended bias and the written submissions entirely failed directly to address bias of any kind. Given that claims of judicial bias should usually be confined only to apprehended bias and there is no suggestion of actual bias, we consider this ground on the basis that it contends only that there was apprehension that the primary judge was biased: see R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 258.
In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 (“Ebner”) at 344–345, the High Court of Australia confirmed that the relevant test to be applied to determine whether there was apprehended bias was whether a “fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question” to be decided. An applicant must first identify the precise conduct it is alleged might lead the judge to decide the case other than on its legal and factual merits and secondly, articulate the connection between the identified conduct and the reasonably apprehended deviation from the duty of impartiality. See also Charisteas v Charisteas [2021] HCA 29.
In Johnson v Johnson (2000) 201 CLR 488 at 493 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) stated:
At the same time, two things need to be remembered: the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
(Citation omitted)
It is clear from the applicant’s grounds of appeal that his contention of bias (in whatever form it takes) arises from three matters. First, the primary judge’s reliance on a valuation report tendered by the Registrar, with which he disagreed because of various asserted errors, secondly, the applicant’s misapprehension that the primary judge had failed to permit an inspection of the property (when the judge quite properly, had no involvement with providing instructions for the valuation), and thirdly, the primary judge’s failure to respond to questions from the applicant about his options and the legal process.
The bare assertions of the applicant about deficiencies in a valuation report, and his misunderstanding of the instructions for the valuation, fails to identify or articulate the logical connection between the matters identified by him and the deviation from deciding the case on its merits. It is no demonstration of apprehended bias that the applicant dislikes or disagrees with one of the valuations before the primary judge or asserts the primary judge relied on a disputed valuation.
As to the assertion that the primary judge failed to provide an appropriate response to questions about the legal process, plainly a primary judge is not required to and should not, provide legal advice to a litigant. A failure to do so, cannot possibly be regarded as giving rise to a reasonable apprehension of bias.
Nor did the applicant make any application for the primary judge to disqualify himself on either of the four hearing days, a failure which raises real difficulties for the applicant in terms of a waiver of his right to raise bias objection in an appeal (Vakauta v Kelly (1989) 167 CLR 568).
For these reasons, there is no merit in the applicant’s bias ground of appeal.
Ground 3 – Failure to accord procedural fairness
The applicant also complains that he was denied procedural fairness because he “asked the judge to seek a proper inspection valuation due to the gross errors contained in the report”.
Even if it is assumed the valuation report to which the applicant took objection was beset by errors, there was still other valuation evidence validly before the primary judge upon which his Honour was entitled to rely. The Registrar had adduced, earlier in the proceedings and without objection, expert opinion evidence of the applicant’s property being worth $1 million more than the valuation report to which he did unsuccessfully object. Had his objection to the allegedly flawed report been successful, he was still faced with evidence that his property was worth nearly three times the amount for which he contended. This complaint is therefore completely groundless.
Ground 4 – Denial of natural justice
As to the asserted denial of natural justice, the applicant contends that he was denied natural justice because the valuer was provided misleading information and instructions by the Child Support Registrar, prior to carrying out the valuation of 14 February 2019.
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.
The applicant does not dispute that he owed a child support debt due to the Commonwealth under s 30 of the Registration Act. He does not now seek to challenge the certificate produced pursuant to s 116(2) of the Registration Act (Ms L’s affidavit filed 9 December 2020, Annexure C) which was prima facie evidence of his debt. In circumstances where there was no dispute about the applicant’s liability, it was entirely proper for the Court to make an order for payment of the outstanding amount pursuant to the relevant rules and the Registration Act. The differing valuations provided by each of the applicant and the respondent do not have any bearing on that primary issue and indeed there is no provision in the Registration Act which enables the Court to relieve a debtor of the debt owed under the Act.
The respondent submits, and we accept, that the valuations are only relevant in so far as they demonstrate the applicant’s capacity to pay his child support liability at some stage in the future. The valuations also may have some limited relevance to the charging orders, which were originally made in 2018, and which are not referred to in the grounds of appeal.
We accept the submissions of the respondent that the applicant has not demonstrated that the primary judge erred by failing to exercise any discretion to decline to make orders for payment of the child support liability having regard to accepted principles governing the challenge to discretionary decisions: see House v The King (1936) 55 CLR 499 at 504–505 (Dixon, Evatt, McTiernan JJ).
That is particularly so in circumstances where the applicant was aware of his child support obligations given his long history of challenging child support assessments (Abani & Abani & Anor (SSAT Appeal) [2015] FCCA 3617, Abani & Abani & Anor (SSAT Appeal) (No. 2) [2016] FCCA 1804, Abani & Abani & Anor (SSAT Appeal) [2016] FCCA 2054), he did not adduce evidence disputing the s 116(2) certificate, and the proceedings were commenced in January 2018 and concluded in December 2020. The several adjournments afforded the applicant ample opportunity to pursue challenges to underlying assessments and arrange his financial affairs to enable him to meet his child support obligations as well as adduce proper evidence of the current valuation of his property. In all the circumstances, it was open to the primary judge to be satisfied that there was sufficient equity in the property to enable the applicant to meet his outstanding child support debt.
There is no merit in this ground of appeal.
Ground 2 – Plainly wrong
The applicant asserts that the primary judge was “plainly wrong” because the evidence before his Honour demonstrated that there was no capacity for him to pay the child support debt, that the orders made are detrimental to the children and that the children will lose their income capacity from the farm where they spend over 43 per cent of their time.
The complaint again misunderstands the issue before the primary judge, which was the applicant’s liability to pay child support. This was uncontroversial having regard to the uncontested s 116(2) certificate.
The primary judge was clearly satisfied (at [3]), irrespective of whether or not the subject valuation was correct, that the admissible evidence tended to identify overall that there was sufficient equity in the property for the applicant to meet the obligations for the child support liability. On the evidence before him, he was entitled to form that conclusion.
There is no merit in this ground of appeal.
Ground 5 – Inadequate reasons
The applicant’s complaint in this respect is that the primary judge did not provide reasons why he was satisfied there was sufficient equity in the property based on a “kerbside” assessment when the improvements on the property were not “livable” and there was a contrary valuation.
The obligation of a trial judge is to provide adequate reasons, but adequacy depends on the circumstances of the case and brief reasons are not necessarily inadequate. What is necessary is that the essential grounds upon which the decision rests should be articulated and the path of reasoning be disclosed. Failure to do so will constitute an error of law: DL v The Queen (2018) 266 CLR 1 at 12–13 (Kiefel CJ, Keane and Edelman JJ) and 43–44 (Nettle J).
Whilst brief, the reasons for judgment deal, at [1], with the child support certificate (s 116(2)), which was prima facie evidence of the applicant’s liability. The primary judge considered, at [3], that there was equity in the property to meet the outstanding liability. In the circumstances his Honour’s reasons are sufficiently clear to provide a basis for the orders made.
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).
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, Baumann & Williams. Associate:
Dated: 5 November 2021
0
14
0