Balzano and Balzano - [2009] FamCAFC 243

FAMILY COURT OF AUSTRALIA

BALZANO & BALZANO

[2009] FamCAFC 243

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal – Child support issue – Lack of clarity as to how the matter ought be categorised – Prospects of success on appeal encourages the granting of the extension – Issue of delay not entirely explained – Application granted

Child Support Assessment Act, s 136

APPLICANT:

Mr BALZANO

RESPONDENT:

Ms BALZANO

APPEAL NUMBER:

122

2009

FILE NUMBER:

SYC

3973

2008

DATE DELIVERED:

16 December 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

16 December 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 August 2008

LOWER COURT MNC:

[2008] FMCAfam 1530

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Bassant

SOLICITORS FOR THE APPLICANT:

Legal Aid Commission NSW

RESPONDENT:

In person

Orders

That the time within which the applicant may file the Notice of Appeal against the orders of Federal Magistrate Jarrett made 19 August 2008 be extended to 4.00pm on 18 December 2009.

IT IS NOTED that publication of this judgment under the pseudonym Balzano and Balzano is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: EA 122 of 2009
FILE NUMBER: SYC3973 of 2008

Mr BALZANO

Applicant

And

Ms BALZANO

Respondent

EXTEMPORE REASONS FOR JUDGMENT

Mr and Ms Balzano have two children, B, born in August 1995, and L, born in August 1997. The parties entered into a child support agreement. Subsequently, between 27 June 2003 and 26 December 2008, the father was in prison. On 19 August 2008, an application by the father made in the Federal Magistrates Court came before Jarrett FM sitting in Sydney. The father was represented by a Mr Cohen, but there was no appearance for the mother.
The transcript of the proceedings indicates that the Federal Magistrate was dealing with a list of matters in which the child support registrar appeared, but amongst them was the father’s application just described. When it was called, there was no appearance, and the Federal Magistrate dismissed the application. Shortly after, Mr Cohen announced his appearance for the father.
It is not abundantly clear from the transcript that the magistrates’ previous dismissal of the father’s application was then set aside, or that in some other way the application was reactivated, but for present purposes, I will assume it was. There was then discussion between the Federal Magistrate and the father’s solicitor, in the course of which the application of the father was categorised as a departure order. It appears to me at least doubtful, that that was the correct categorisation of the application.
In any event, the learned magistrate moved to dismiss the application, essentially on the basis that, treating it as a departure application, prerequisites to such an application being dealt with by a court, had not been met.
The setting aside of agreements is dealt with under section 136 of the Child Support Assessment Act. In reasons later published, and by that, I mean considerably later, the learned magistrate does make reference to section 136.
There is then some lack of clarity as to whether the reasons for the dismissal of the father’s application ought be seen as because of the terms of section 136, or at least after the consideration of that section, or whether treating the father’s application as a departure application, the reasons were those bases that were indicated in the transcript. The end result, in short, of these observations, is that, I think there is a real concern that the proceedings have miscarried.
The mother says today, with some validity, I think, that the father’s legal representation, when the matter was before the federal magistrate, did not particularly assist the prosecution of the father’s application, and that if the father has a remedy, he ought look to the matter of the quality of his legal representation, and any redress he might have, if it fell short.
However, while that may be an avenue, the court, particularly an appellate court, reviewing the conduct of matters in courts below, remains concerned about the integrity and correctness of the court process and its decisions, and the fact that an applicant such as the father here, may have some alternative redress, is not, by any means, a bar to granting an extension of time, such as is sought here, so that the court may, if necessary, correct errors in the court’s processes. What I have said of the prospects of success on appeal, of course, encourages the granting of an extension of time.
The mother does not, in a sense, say that she is disadvantaged by a grant of time within which to appeal, at least in the sense that she has, somehow, changed her financial circumstances in the expectation that these moneys are payable, that is, the arrears of child support that accrued while the father was in gaol. She says that, in effect, it has been a hardship for her to support the children without assistance. If leave is granted to appeal, and the appeal fails, and the debt stands, then the mother will be in no worse a position. If the appeal succeeds, and the debt is extinguished, then, in a sense, the mother will still be in no worse position, because she does not have the funds in hand, and I do not know what the prospects of her ever receiving the funds by way of recovery proceedings, are.
Of course, it is a disadvantage to the mother if she now has to meet an appeal, but that is a disadvantage that always follows from the filing of an appeal, and/or the grant of an extension of time within which to do so.
The matter of delay by the father, however, needs to be considered. I think, taking his explanation at its highest, that he is to be criticised for allowing so much time to pass. Though he was in prison for some five months or so after the decision, that does not mean that he was not capable of taking action, or asking his solicitor to take action. There seems to have been some consideration of the matter of appeal, but really, no detail as to how that consideration proceeded, or why it took so long, and what conclusions were reached. Again, once the father was out of prison, he took some steps towards challenging the decision, or in some other way, dealing with the issue of the child support agreement, but they seem to have been perfunctory, and not diligently pursued. Indeed, he was advised in January that he needed to get a copy of the reasons for judgment for the orders made 19 August 2008, and yet he himself deposes that, nearly six months later, in June, he was reminded that he needed to obtain a copy of the reasons for judgment. The question of delay, of course, works against the father’s case for an extension of time.
If I do not grant an extension of time, what may be an unsatisfactory legal process, governs the standing between the parties. Again, I do not know that if I dismiss the extension of time, it means that the mother has any increased chance of recovering anything of the debt that is owing for child support. And it may be that the circumstances of the father’s imprisonment might be a factor which affects a court’s discretion as to whether to enforce the arrears or not, if a recovery action is put before the court.
In the end, notwithstanding the delay of the father, I think it better for the parties, both the parties, if a solid legal foundation, one way or the other, is given to their position in terms of whether child support is payable or not payable. And for those reasons, I conclude that I ought grant the extension of time.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate:

Date: 13 January 2010