Ardell & Thorn
[2023] FedCFamC1A 78
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Ardell & Thorn [2023] FedCFamC1A 78
Appeal from: Ardell & Thorn [2022] FedCFamC2F 1614 Appeal number: NAA 68 of 2023 File number: MLC 5464 of 2022 Judgment of: AUSTIN J Date of judgment: 22 May 2023 Catchwords: FAMILY LAW – APPEAL – Practice and procedure – Review of decision – Where the applicant seeks review of the dismissal of the Application in an Appeal seeking leave to appeal out of time – Where none of the proposed grounds of appeal ostensibly have any merit and have no reasonable prospects of success – Application in an Appeal dismissed – Where the respondent did not seek costs – No order as to costs. Legislation: Child Support (Assessment) Act 1989 (Cth) ss 111, 112
Evidence Act 1995 (Cth) s 58
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 132
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.03, 13.40
Cases cited: Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1
Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52
Whitmore & Whitmore [2022] FedCFamC1A 75
Number of paragraphs: 32 Date of hearing: 22 May 2023 Place: Newcastle (via Microsoft Teams) The Applicant: Litigant in person Solicitor for the Respondent: Longton Legal ORDERS
NAA 68 of 2023
MLC 5464 of 2022FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ARDELL
Applicant
AND: MR THORN
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
22 May 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 11 May 2023 is dismissed.
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 a pseudonym Ardell & Thorn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Before the Court for determination is an application for leave to review, out of time, a decision made by the appeal registrar on 14 April 2023, refusing the applicant’s earlier application for leave to bring an appeal out of time.
The application should be dismissed because, upon review by way of original hearing, the same orders as were made by the appeal registrar would ensue.
Background
The applicant and respondent are the parents of an adult daughter, born in 2004 and now 19 years of age, who has apparently been estranged from the respondent for the last 10 years.
The respondent was formerly bound by a child support assessment in respect of the daughter under the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). It is apparently uncontroversial that the respondent met his obligations under the assessment and there are no arrears. The liability to pay child support ceased in 2022 when the daughter attained her majority.
In late 2021, about six months before the daughter attained her majority, the applicant applied to the Child Support Registrar (“the CSR”) to retrospectively vary the assessment on grounds that the respondent had an increased financial capacity to pay more child support. Her variation application was dismissed by the CSR in April 2022. Relevantly, the CSR found:
I do not find [the respondent’s] current financial resources, income and property is significantly different [from when the assessment was last made] and I am not satisfied the child support assessment is unfair….As a result, no changes will be made to the assessment.
The applicant promptly objected to the decision in April 2022, but shortly afterwards voluntarily withdrew the objection.
Then, in May 2022, several weeks after withdrawing the objection, the applicant filed in the Federal Circuit and Family Court of Australia (Division 2) an application seeking leave to apply to vary the child support assessment for the period of seven years between November 2014 and November 2021. Leave is required to prosecute an application to vary a child support assessment covering any period more than 18 months (but less than seven years) before the variation application is made (ss 111(1) and 112 of the Assessment Act). The application for such leave was heard and dismissed by the primary judge on 10 November 2022.
Essentially, her Honour dismissed the application because the evidence adduced by the applicant lacked probative value and was incapable of demonstrating she had a prima facie case to prosecute (at [20] and [28]). The respondent claims to suffer from an injury and so receives welfare payments. The applicant had contended he “exaggerated his medical condition and faked [his] eligibility to [financial] benefits” for the purpose of minimising his income and, hence, minimising the child support assessment (at [21]–[22]), but the primary judge found the evidence, taken at its highest, was not capable of substantiating that contention (at [23]). Nor did the evidence establish the applicant would experience hardship if denied leave to apply out of time, at least when compared with the potential hardship claimed by the respondent (at [31]–[32]). While the primary judge was satisfied the applicant was not long out of time in relation to the tail end of the period during which she sought to vary the child support assessment, there was no good explanation for the delay extending back to the beginning of that period in 2014 (at [33]).
From that judgment, an appeal lies to the Federal Circuit and Family Court of Australia (Division 1), subject to the grant of leave to appeal (ss 26(1)(c), 28(1)(a)(i) and 132(1)(d)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
The time for filing the application for leave to appeal lapsed on 8 December 2022 (r 13.03(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). On 7 December 2022, the applicant attempted to file a Notice of Appeal, but it was rejected by the appeal registrar for incompetence. It is not now contended the rejection decision was wrong. The appeal registrar sent the applicant an email on 9 December 2022 explaining the deficiencies of the Notice of Appeal, but the applicant did not promptly rectify the defects and return the Notice of Appeal for filing.
More than another three months elapsed before the applicant filed an Application in an Appeal on 21 March 2023 seeking leave to file the Notice of Appeal out of time, supported by her affidavit filed on the same date. The appeal registrar dismissed that interlocutory application on 14 April 2023, finding the grounds of appeal which the applicant wants to prosecute have no ostensible prospects of success and so the applicant failed to demonstrate there is a substantial issue to be raised in the prospective appeal (at [55]–[74]). Nor was the appeal registrar satisfied the evidence adduced by the applicant adequately explained her delay of three months in agitating the proposed appeal (at [75]–[76]).
The time for filing an application to review the appeal registrar’s decision lapsed 21 days later on 5 May 2023 (r 13.40(2) of the Rules). The applicant also failed to meet that time limitation, thereby losing her unconditional right to the de novo review of the registrar’s decision. She now first needs leave to prosecute the review application.
By her Application in an Appeal filed on 11 May 2023, the applicant seeks an extension of time within which to review the appeal registrar’s decision on 14 April 2023 rejecting her application for an extension of time within which to seek leave to appeal. In support of her application, she relied upon her affidavits filed on 11 and 19 May 2023.
Discussion
The grant of permission to review the appeal registrar’s decision of 14 April 2023 out of time depends, in turn, upon the strength of her application for leave to bring the appeal out of time, which depends, in turn, upon the ostensible merit of the grounds of appeal the applicant seeks to advance to impugn the judgment of the primary judge on 10 November 2022.
The question of whether the applicant has a substantial issue to raise in the proposed appeal is not the only discretionary factor which influences the decision at hand (Gallo v Dawson (1990) 93 ALR 479; Jackamarra v Krakouer (1998) 195 CLR 516; Whitmore & Whitmore [2022] FedCFamC1A 75), but it is a good place to start.
The Notice of Appeal which the applicant wants to file is annexed to her affidavit filed on 11 May 2023 in support of her proposed review application. The proposed appeal comprises six grounds of appeal, which are pleaded in these terms:
1.Applying an inconsistent interpretation as to relevance for the law according to the Australian judicial officers oath; by misquoting almost the entirety of the Appellants submissions contributing to systemic inequalities in the Ex Tempore Reasons for Judgment see Michel v. Graydon, [2020] SCC 24 (CanLII)
2.Instructing the Appellant to address the criteria as a Registrar (applicant) to make a determination under s 111 (4) of the Child Support (Assessment) Act 1989 by refusing to accept the Appellants application (filed 31 May 2022) under s111 (1) (b) of the Act.
3.Failing to afford procedural fairness by refusing the Appellant leave to rely upon evidence (on file) of the Respondent voluntarily reducing his greater capacity to earn provided by CSA, that supports their submission as to the agency's limited power to test evidence and address highly complex matters in the case see Bauer & Becker [2009] FMCAfam 480 (22 May 2009)
4.Failing to apply s58 (1) of the Evidence Act 2008 by refusing to hear the Appellants submissions in full; as to hidden funds the Respondent refuses to itemize (Family Law Rule 2021 r 6.06 filed 15 July 2022) continuing to deceive the Commonwealth of additional funds of $360,000.
5.Causing a significant Jurisdictional error by intentionally miscategorising the Respondents funds of $360,000 (subtracted from $440,000 additional financial resources) as house proceeds exempt from CGT; despite evidence adduced by both parties as to the Respondents house proceeds of $960,000 sold 23 October 2021, settled 6 December 2021. see Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 (24 October 1995)
6.Having dismissed the case causing an improper exercise of power, by failing to apply Chapter 2 of the Criminal Code for offences against the Child Support Assessment Act 1989; given that the Appellants evidence was taken at its highest as to the Respondents refusal to disclose funds of $80,000 to the Commonwealth (CSA). see Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597; 187 ALR 117; 76 ALJR 598 (14 March 2002) at 53.
(As per the original)
Ground 1 is unintelligible and unhelpfully refers to a Canadian case. The complaint about the primary judge “misquoting almost the entirety of the [applicant’s] submissions” is not borne out by perusal of the transcript of the hearing, which is adduced in evidence as an annexure to the applicant’s affidavit of 11 May 2023. Comparison of the transcript with the reasons for judgment does not reveal any material misquote or misunderstanding by her Honour. Ground 1 seems hopelessly misconceived.
Ground 2 is also difficult to interpret. The assertion of the “refus[al] to accept” the applicant’s Application is false because it was filed on 31 May 2022 and then heard on 10 November 2022. It was indeed dismissed, but dismissal does not of itself illuminate any appealable error because applications must either be granted or dismissed. Not all can succeed. The transcript of the hearing reveals the primary judge mistakenly referred to s 111(4) of the Assessment Act during the hearing, as her Honour was initially uncertain of the applicable provisions, but s 111(4) was not engaged by the applicant’s application. Rather, s 112(4) of the Assessment Act was relevant, as it prescribes the discretionary factors the primary judge had to consider when determining the application. In the reasons for judgment, her Honour correctly referred to that provision and the factors it prescribes. It was entirely proper for the primary judge to invite the applicant’s submissions in relation to those pertinent factors. Ground 2 has no reasonable prospects of success.
Ground 3 complains of the denial of procedural fairness, but on a false premise. The applicant was allowed to rely upon the evidence she saw fit to proffer, which was the affidavit she filed on 27 October 2022. The primary judge found the applicant’s evidence to be insufficient, but that finding is not self-evidently wrong and, more importantly, is not a manifestation of the denial of procedural fairness. The finding followed from due consideration of the applicant’s evidence. Ground 3 has no reasonable prospects of success.
Ground 4 is presumably meant to call to aid s 58(1) of the Evidence Act 1995 (Cth), but it is of no assistance to the applicant. That statutory provision simply enables a federal court to draw inferences about the authenticity or identity of a contentious document or thing. The remainder of the ground, which complains of the refusal to hear the totality of the applicant’s submissions about the respondent’s alleged perfidy is baseless. The applicant did not identify any point in the transcript at which the primary judge refused to hear her submissions. Her Honour heard the applicant’s submissions in full, asked questions of the applicant to ensure her understanding of the applicant’s case, and granted her the chance to make submissions in reply to those made for the respondent. Ground 4 has no reasonable prospects of success.
Ground 5 alleges “significant jurisdictional error”, but there was none. The applicant’s reference to Craig v South Australia (1995) 184 CLR 163 is inapposite. There, the High Court confirmed an inferior court falls into jurisdictional error only if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist, but not if it otherwise simply makes an evidentiary, legal, factual or discretionary error (at [177]–[180]). The High Court has since endorsed and amplified those observations (Kirk v Industrial Court of NSW (2010) 239 CLR 531 at 571 to 575)
Here, the applicant wanted her application under the Assessment Act heard and determined by the primary judge, as it indeed was. There was no dispute about the existence of jurisdiction or the ambit of power available to the primary judge under the Assessment Act. In determining the cause, the primary judge did not accept the applicant’s submissions about the respondent’s financial capacity to pay more child support, but the rejection of her submissions entailed neither jurisdictional error nor the intentional misrepresentation of the evidence she adduced. Ground 5 has no reasonable prospects of success.
Ground 6 is unintelligible. Suffice to say the primary judge was hearing civil, not criminal, proceedings and could not apply any statutory criminal code. Furthermore, the applicant failed to prove the respondent “failed to disclose funds of $80,000 to the Commonwealth”, in respect of which issue the primary judge said this in the reasons for judgment:
24.In relation to the second period in which the applicant seeks the assessment to be reviewed, the applicant says in her submissions that the respondent had access to $80,000 in savings, in addition to the proceeds of sale of his home. She was asked by me how she quantified that sum. She referred to a number of bank statements showing significant payments to the respondent.
25.What the applicant said to me was that she had calculated the sum of $80,000 by subtracting what she said was a total of $440,000 received by the respondent and subtracting from that amount the proceeds of sale of the respondent’s home of about $360,000, which she said then gave a surplus amount of $80,000. She said that this amount had not been taken into account by the Child Support Agency in assessing the respondent’s liability from about December 2021 onwards.
26.The difficulty with that submission is that it is not at all clear to me on what basis those figures have been calculated. The applicant relied on a number of bank statements but there is no summary in the applicant’s affidavit which allows me to see what amounts were received by the respondent before December 2021 and how that figure of $80,000 was derived.
27.I also note that proceeds of sale which did not attract a capital gains tax impost, and which related to the sale of a primary home, would not attract a child support liability. Although in some limited circumstances, financial resources can be taken into account in relation to income, there is no evidence placed before me by the applicant that indicates to me the basis on which, had that sum of $80,000 been disclosed to the Child Support Agency, it would have related in an adjustment to the assessment.
Aside from disagreement with those findings, the applicant was unable to articulate any error made therein. Ground 6 has no reasonable prospects of success.
The draft Notice of Appeal also makes an overarching complaint of error about the judgment delivered on 10 November 2022 by her Honour in these terms:
1. The primary judge erred by making an order that is plainly unreasonable and unjust, by failing to exercise discretion correctly and a substantive wrong has occurred.
This complaint seeks to invoke an implied appealable error, presuming no frank appealable error can be identified (House v The King (1936) 55 CLR 499 at [504]–[505]; Lovell v Lovell (1950) 81 CLR 513 at [519] and [533]). However, appraisal of the reasons for judgment does not admit of the conclusion that the dismissal of the applicant’s application was such an incongruent result that some form of appealable error must be inferred. This complaint has no reasonable prospects of success.
It follows that the applicant’s proposed appeal is devoid of merit, which in turn means her prospect of securing leave to appeal from the primary judgment is poor, which in turn means it would be pointless to grant her an extension of time within which to bring her application for leave to appeal, which in turn means it would be pointless to extend time for her to now review the appeal registrar’s decision to refuse her the extension of time to do so.
The lack of merit manifest in the proposed late application for leave to appeal is compounded by the lack of any persuasive explanation given for why the applicant was over three months late in bringing her application for leave to prosecute the application out of time. The applicant said she was busy attending to medical appointments with the adult daughter, but that is hardly sufficient to explain such lengthy delay, which is to say nothing of the lack of any evidence about the nature of the child’s diagnosis, condition, prognosis, or why it was necessary for the applicant to prioritise her control or supervision of the medical treatment administered to another adult over the timely prosecution of supposedly important litigation.
In addition, the prejudice to the respondent in having to incur legal costs in resisting any prospective appeal over the applicant’s belated application to increase his child support liability retrospectively for a period extending back some seven years is obvious.
The applicant’s review application was brought about a week later than it should have been, which delay she explained in her accompanying affidavit was due to the “scan to email function” failing on her computer. But the acceptance of her explanation for the modest delay in bringing the review application as being satisfactory does not of itself justify the grant of her underlying application to prosecute her application for leave to appeal well out of time. It would be futile reviewing the appeal registrar’s decision because the same result would inevitably follow.
The Application in an Appeal filed on 11 May 2023 is dismissed.
The respondent did not seek costs.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 22 May 2023
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