Bania & Bania - [2008] FamCAFC 88

FAMILY COURT OF AUSTRALIA

BANIA & BANIA

[2008] FamCAFC 88

FAMILY LAW – APPEAL FROM FEDERAL MAGISTRATES COURT – CHILD SUPPORT – Not established that Federal Magistrate erred in refusing to grant mortgage offset claim

FAMILY LAW - CHILD SUPPORT – Not established that provisions of s 58(2) not complied with

FAMILY LAW - EVIDENCE – Not established that Federal Magistrate denied the husband natural justice by failing to allow evidence in chief by telephone

FAMILY LAW - EVIDENCE – Application to adduce fresh evidence – Not established that to accept further evidence identified in the application to adduce further evidence would show Federal Magistrate to have been in error. CDJ v VAJ (1998) 197 CLR 172 cited.

Family Law Act 1975 (Cth)

Child Support Assessment Act 1989 (Cth) s 58(2), Part 6A of Division 4

CDJ v VAJ (1998) 197 CLR 172

APPELLANT:

MR BANIA

RESPONDENT:

MRS BANIA

FILE NUMBER:

PAM

3659

2001

APPEAL NUMBER:

EAA

130

2007

DATE DELIVERED:

27 June 2008

PLACE DELIVERED:

PARRAMATTA

JUDGMENT OF:

Coleman J

HEARING DATE:

18 June 2008

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

27 September 2007

LOWER COURT MNC:

[2007] FMCAfam813

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Self-represented

COUNSEL FOR THE RESPONDENT:

Ms Sloane

SOLICITOR FOR RESPONDENT:

Marsdens Law Group

SOLICITOR FOR CHILD SUPPORT AGENCY:

Mr McWhinnie

Australian Government Solicitor

Orders

That the appeal and application for leave to adduce further evidence be dismissed.
That within three months the husband pay the sum of $1000 by way of contribution to the wife’s costs of the appeal.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 130 of 2007
File Number: PAM 3659 of 2001

MR BANIA

Appellant

And

MRS BANIA

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal filed 22 February 2008 Mr Bania (“the husband”) appealed against orders made by Federal Magistrate Housego on 27 September 2007 in child support proceedings between the husband and Mrs Bania (“the wife”).
The orders made by the learned Federal Magistrate provided for sums of $165 and $33 457.32 to be off set against the husband’s liability for child support but otherwise dismissed the application of the husband of 23 May 2005 for other off-sets and/or departure orders.
In lieu of those orders the husband sought the 23 orders set out as an annexure to his Amended Notice of Appeal, the effect of which appears for practical purposes to be to extinguish by one means or another the entirety of the husband’s current child support indebtedness.
The wife resisted the husband’s appeal and sought to maintain the orders made by the learned Federal Magistrate. Counsel for the Child Support Registrar, who generously appeared to assist the Court, also sought to maintain her Honour’s orders.

Background Facts

The parties were previously married to each other.
On 21 December 2001 a child support departure application was administratively determined. A review of that determination was dismissed on 1 February 2002. That decision was not the subject of further challenge.
On 25 October 2002 Purdy J made orders for settlement of property after a six-day trial of parenting and financial issues. His Honour’s decision was not the subject of appeal and did not involve proceedings pursuant to the child support legislation.
On 23 May 2005 the husband made an application to off-set against his liability for child support mortgage payments made by him with respect to a property at S, as well as payments made by him with respect to a motor vehicle which was used by the wife.
A further off-set, ultimately conceded, of $165 with respect to sporting fees of the children of the parties, was also sought by the husband. The application also sought departure orders for the period from 12 December 2001 until 30 November 2004.
The husband is a bankrupt third year law student whose sole source of income is from social security.

Reasons for Judgment of the Federal Magistrate

Having identified, correctly there is no doubt, the competing applications before her, the learned Federal Magistrate dealt with the first matter in issue before her, that being “the off-setting of the mortgage payments”.
As the husband confirmed before this Court, his case in relation to the mortgage off set claim relied upon a passage in the Reasons for Judgment of Purdy J of 25 October 2002. His Honour’s judgment was clearly before the learned Federal Magistrate.
In the relevant passage in his judgment, Purdy J said:
52.The question of A Pty Limited was the subject of some contest. A is of interest in a number of ways. Its significance in once sense is that it provides a ready method for the husband to have a lower assessment for child support than he would have were he simply to assess his income in the way of those who don’t feed income through a family company as he does. Once again, and this question of child support was the subject of some egregious exaggeration by the wife, her affidavit said that he paid no child support. In fact he pays considerable child support, including paying the mortgages and making payments on the cars. He almost certainly does not pay as much as he would if he did not have A because the method is quite plain, A pays him a salary and A pays its own company tax and the husband is assessed on the salary that A pays him, and any profits that A may make are not the subject of any assessment by the child support agency.
In the proceedings which give rise to this appeal, the learned Federal Magistrate acknowledged, as was apparently not in contest, that the husband had in fact made the mortgage payments. The real issue was described as whether the mortgage payments should be “attributed to him in respect of both child support and also as contributions to property”.
Her Honour further said:
9.The usual position in relation to an application for property settlement - and there is nothing before me that suggests this was not the case when the matter was before Purdy J - is that the Court would have regard to the various financial contributions of each of the parties to the date of hearing when assessing the just and equitable manner in which property interests are to be adjusted. The reasons provided by his Honour do not make it clear that that in fact took place in this case. However, there is nothing to suggest that this did not occur and so I find that the appropriate response to the husband's application in relation to this issue is to reject it. I do so for two reasons.
Referring to the particular sentence in the paragraphs of Purdy J’s judgment cited above, the learned Federal Magistrate said:
11.It would appear that it is that statement which has suggested to Mr [Bania] that mortgage payments ought be offset against his child support assessment. However, there has been no appeal from the order displacing his Honour's reasoning and it seems to me that a proper construction of the task undertaken by his Honour was that those payments were taken into account when assessing the respective contributions of the parties.
Her Honour ultimately concluded:
12.In Mr [Bania's] own affidavit material, his complaint in relation to the non-crediting of these payments against the assessment appears to derive from his argument that, had he not made those payments, then the house would have been repossessed and no asset would have been there to meet the ultimate payment to the mother. This argument does not, in my view, have any merit. The obligations in relation to payments, transfer of property interests and sale all form part of the determination of the property proceedings. The payments made by Mr [Bania] in respect of the property were part of the contributions which have already been taken into account in the property settlement and that there is no evidence before me which displaces that conclusion. Accordingly, I dismiss the first ground of Mr [Bania's] application.
For reasons which are not immediately of relevance, but assume significance in the context of one of the three issues raised by the husband’s appeal, the learned Federal Magistrate concluded that $33 457.32 paid by the husband with respect to a motor vehicle utilised by the wife in the post-separation period should be off set against the husband’s liability, in reliance upon the sentence in Purdy J’s judgment of 25 October 2002 to which her Honour earlier referred in the context of the mortgage off set claim.
The learned Federal Magistrate then considered the husband’s departure application. The basis of that claim was considered to be the husband’s assertion that “his income was so changed, that a departure from the administrative assessment ought be granted”.
Her Honour recorded that the husband bore the burden of proof in relation to the application which application fell within s 117(c) of the Child Support (Assessment Act) 1989 (Cth) legislation, neither of those observations being controversial in this appeal.
The ground upon which the appellant relied was considered to require him “to prove that his income, property and financial resources were such that the assessment resulted in an unjust and inequitable determination of the level of financial support”.
The learned Federal Magistrate found that there was “no evidence before me to support a finding as to what Mr [Bania’s] financial circumstances actually are or have been since 12 December 2001”.
Her Honour recorded that the husband “was given the opportunity to remedy the situation in relation to the evidence that he called. Most relevantly, his partner, Ms [G], was invited to participate in the proceedings and did not” that being considered a “significant difficulty” in the husband’s case, for reasons which her Honour then outlined..
The learned Federal Magistrate’s consideration of the husband’s request to have Ms G give evidence gives rise to the second matter raised by the husband in this appeal.
The learned Federal Magistrate said of the relationship of the appellant and Ms G:
16.Ms [G] and Mr [Bania] have been together at least since the date of the property orders that Purdy J made. Whilst there is evidence that their relationship may have changed and that currently they are not cohabiting exclusively, the evidence Mr [Bania] gave is that they still spend most weekends together and a few other nights.
Her Honour concluded:
17.Even though he asserted that there had been a diminution in their relationship, it is clear from the evidence that Mr [Bania] gave that there is a considerable amount of financial intermingling between the two which continues. It is that intermingling which makes it impossible for me to determine what the financial position of Mr [Bania] actually is.
The learned Federal Magistrate then referred to details of transactions revealed by “company records” relating to a corporation in which the husband and Ms G had some involvement.
Her Honour further recorded the concession of the husband “in the course of his cross-examination that his finances were intermingled with Ms [G’s], at least for part, if not all, of the period in relation to which he seeks to have the child support departed from”. Her Honour found that “the period of time during which the intermingling has occurred is not clear from Mr [Bania’s] evidence”.
Having again referred to the “transaction” involving the corporation, her Honour observed that there had been “no explanation as to how that money came to be given by Ms [G] to the company or on what terms the money was advanced”.
Reference was also made to advances by the husband of $154 887.27 and a further advance “such that the loan account in Mr [Bania’s] name became $171 157.09”.
Those transactions occurred during the financial years ending 30 June 2004 and 30 June 2005. The first of those years was one of the years with respect to which the husband sought a departure order.
Having discussed those matters, the learned Federal Magistrate referred to the absence of “evidence in relation to the detail of that development”. Her Honour found herself being “very much left in the dark in trying to assess what Mr [Bania’s] actual financial position is”.
Her Honour ultimately concluded:
23.Given that Mr [Bania] was given the opportunity to rectify the deficiencies in his evidence, that no explanation was given as to why Ms [G], who could, it would appear, have cast considerable light on the circumstances of her intermingled finances with Mr [Bania], and the silence in the evidence as to where monies are coming from for Mr [Bania’s] self-support, I have no alternative but to dismiss Mr [Bania's] applications for departure.

The Grounds of Appeal

The grounds appearing in the husband’s Amended Notice of Appeal, save in one respect, give little clue as to the matters of which he complains in the learned Federal Magistrate’s judgment. The same is true of a studiously compiled 29-page document which the husband filed by way of outline of his submissions.
A further outline of submissions tendered during the hearing of the appeal reveals the matters of which the husband really complains. They fall within three broad areas, being:
(1)The learned Federal Magistrate’s alleged erroneous refusal to grant the mortgage off set claim;
(2)The learned Federal Magistrate’s failure to afford the husband natural justice by refusing to allow Ms G to give evidence by telephone; and
(3)The learned Federal Magistrate’s failure to comply with the requirements of s 58(2) of the Child Support (Assessment) Act 1989 (Cth).

The mortgage off set claim

The issue raised before the learned Federal Magistrate, and before this Court, in relation to the mortgage off set claim was quite simple.
Understandably, the husband relied substantially, if not entirely, upon the finding in Purdy J’s Judgment in 2002 that the husband was at that time paying “considerable child support, including paying the mortgages and making payments on cars”.
In essence the husband submitted that Purdy J having accepted that the mortgage payments were part of the provision of child support, they should be off set against the liability to pay child support. With respect to the husband, nothing put by him to this Court demonstrates any error on the part of the learned Federal Magistrate in relation to this topic.
Read in the context of paragraph 52 of Purdy J’s judgment, and of the totality of his Honour’s judgment, it is reasonably clear that he was considering a claim made on behalf of the wife for a greater contribution entitlement by virtue of the husband paying “a lower assessment for child support than he would have were he simply to assess his income in the way of those who don’t feed income through a family company as he does” would have.
The context in which Purdy J made his observations related to the husband’s corporation A Pty Limited. It is reasonably clear that his Honour rejected the wife’s claim with respect to contributions in reliance upon the level of child support paid by the husband on the basis that the husband in fact paid “considerable child support” and other monies.
It is significant that, immediately after so finding, Purdy J also said that the husband “almost certainly does not pay as much as he would if he did not have [A] because the method is quite plain, [A] pays his salary and [A] pays its own company tax and the husband is assessed on the salary that [A] pays him, and any profits that [A] may make are not the subject of any assessment by the Child Support Agency”.
It is not in contest that, at all times subsequent to the parties’ separation the property to which the mortgage payments related was not occupied by the wife and/or the children of the parties but was in fact occupied by the husband. Purdy J found (paragraph 16) in those terms, recording that “at separation the husband eventually reoccupied the newly completed home at [S]”.
Having made that finding, and being clearly aware, as Purdy J’s Reasons for Judgment reveal that he was, that the wife and children were not in occupation of or deriving other benefits from the property, to which the mortgage related, it is inconceivable that Purdy J would have intended, to the extent that his judgment could have any bearing on the matter, that the mortgage payments could alleviate the husband’s child support obligations. No part of the proceedings before Purdy J involved applications pursuant to the child support legislation.
In context, it is plain, as the learned Federal Magistrate recognised, that the husband received credit in the assessment of his contributions in property settlement proceedings for making the mortgage payments. To have credited the husband’s child support liability with the payment of mortgage instalments on a property from which he alone was deriving use and occupation would be both illogical and unjust.
Reference was earlier made to the successful claim to off set car payments. It is common ground that the car in question was one of the cars referred to by Purdy J in the passage of his judgment which has become focal in the Federal Magistrates Court and in this Court. It is common ground that, unlike the property in respect of which mortgage payments were made, the wife did benefit from the car payments which her Honour, correctly in this Court’s view, off set against the husband’s liability of child support.
The husband’s challenge to the learned Federal Magistrate’s refusal to off set mortgage payments accordingly fails.

The denial of natural justice

In essence, the husband contends that the learned Federal Magistrate denied him natural justice in not allowing him to have Ms G give evidence in chief by telephone. It was submitted by the husband that he was:
…effectively shut down and unable to even attempt to sway her honour into considering the possibility of Ms [G] attending by phone and why that may well be the only option available to me to present her evidence. As it transpired Ms [G] was unable to arrange for a fill in person to allow her the trip into the city to attend court to give evidence on cross examination of her affidavit evidence if so required by Ms Sloan. This has, in the wash up, been highly prejudicial to my very valid case before the lower court. I agree with Housego FM – AB C2 on page 60 at line 1-10 – in the observations that Ms [G] may have been prejudicial to either case, however Ms [G] was a willing participant then and continues to be so today. Unfortunately due to her work and the courts unwillingness to take evidence from Ms [G] by phone we are unable to validate the veracity and honesty of these statements of claim. I do not foresee any problem with Ms [G] attending by phone in these honourable proceedings although I do anticipate an objection from my friends at the bar table to her putting on some evidence for this honourable court.
The proceedings heard by the learned Federal Magistrate in May and August 2007 and decided on 27 September 2007 were commenced by an application filed or amended, at its latest, in October 2005. As is apparent from the Appeal Book prepared by the husband, there were a number of affidavits filed in the Federal Magistrate’s Court. The affidavits did not include any affidavit by Ms G. This Court has not been referred to, or discovered for itself, any affidavit evidence of the husband in the Federal Magistrate’s Court proceedings disclosing the details of financial arrangements between himself and Ms G, who, the husband informed this Court, is his present landlady.
To better appreciate this complaint, it is necessary, and instructive, to have regard to the transcript of the proceedings. The husband referred the Court to the exchanges between himself and the learned Federal Magistrate in relation to this topic on the second day of the trial.

At that time, the husband had been cross examined by learned Counsel for the respondent. Such cross examination revealed numerous financial transactions involving the appellant and Ms G, some of them involving assertions by the appellant that substantial sums of money e.g. $90,398.25 had been provided by Ms G.
It is apparent from the transcript of the second day that the proceedings required a further hearing date before their completion. The transcript suggests that the matter resumed on 23 May 2007 in part to accommodate the husband’s university commitments.
Early in the discussion with respect to the resumed hearing of the proceedings the learned Federal Magistrate, having heard the appellant’s evidence in relation to financial dealings between himself and Ms G said, very properly in this Court’s view:
FEDERAL MAGISTRATE: But I’m troubled by the lack of evidence from Ms [G]. I would have thought that we could be assisted by some evidence from her, even though that might go against your client’s interests, because we might well find that she gives evidence that she’s been the sole supporter of Mr [Bania] for many a year, and that he has been tyring to work and unable to bet work and she’s been funding him. Or we might find that really, what he’s got with her is a, you know, goose laying golden eggs and money there to be had that is shared around, and as you’ve suggested in your cross-examination, perhaps moneys that have come in from her are really masquerading as that to hide.
So what would be the prejudice to you in asking for some evidence, apart from perhaps an inference? I mean, I’m not going to compel her but I’d just like to make sure that everybody knows that I’m seeing that as a whole and I don’t want Mr [Bania] feeling unjustly aggrieved, or feeling like he can be unjustly aggrieved, at the end of the hearing when he hasn’t had the opportunity to call evidence that properly I need to have.
Mr [Bania], in the normal course of events and I’ll just cut you off for a minute, Ms Sloan, while you’re thinking about this. (Transcript 17 May 2007, page 60 line 1 –20).
Quite properly the learned Counsel for the respondent did not raise any objection to the matters which thus fell to her Honour.
Addressing the husband, her Honour then said:
FEDERAL MAGISTRATE: In the normal course of events, you know, you run your case, it’s for you to make out. What I’m really doing is giving you an opportunity to strike out what I see as a hole in it. (Transcript 17 May 2007, page 60, lines 24, 25 , 26).
To which she added:
FEDERAL MAGISTRATE: That’s going to cause Ms Sloan’s side at the Bar table more detriment than you, but I still think – unless there’s a very vocal argument from either or both of you that I don’t need it, I think that I should raise that as a question mark with you both at this stage. (Transcript 17 May 2007, page 60, lines 31 –33).
Her Honour then said:
“It may be that Mr [Bania] doesn’t want to call Mr (sic) [G].”
(Transcript 17 May 2007, page 61, line 10 & 11).
After further discussion as to when the trial would resume, some pages before the discussion as to when the trial could resume, the husband raised the question of Ms G giving evidence. Rather than paraphrase what was then said, it is appropriate to reproduce the entirety of that exchange:
MR [BANIA]: Just on the – if I do put some evidence on from Ms [G], some latitude on time, I have a lecture first thing Monday morning and it finishes at 1 o’clock. So if I could have to say three to get the documents to Marsdens. Your Honour said lunch time.
FEDERAL MAGISTRATE: Yes, I did. I think you can file by fax.
MR [BANIA]: If I can just do some evidence now, it will be filed tomorrow, so.
FEDERAL MAGISTRATE: If you’ve got evidence and I think what you can probably do is send an unfiled copy to Marsdens by first thing Monday morning and if that’s the case, then you can file it at say 3 o’clock. But I’d like Ms [Bania] to have the opportunity to have a look, or her legal representatives with some time, because it does take a little bit of tie to prepare and I’ve thrown a bit of a – well I’ve been unhelpful, put it this way, by raising this issue at this stage.
But if she’s going to on affidavit, she needs to be available to come in and give evidence personally. Mightn’t be required, but if she is, she’s got to be there or I disallow the affidavit.
MR [BANIA]: That’s fine ma’am, and that would be the only sticking point is her being able to get the time to ---
FEDERAL MAGISTRATE: Well, it’s a do or die thing.
MR [BANIA]: Yes, I know.
FEDERAL MAGISTRATE: That’s it. I’m not going to inconvenience or prejudice anybody any further than that.
MR [BANIA]: The other thing, she – would it serve if she was available by phone?
FEDERAL MAGISTRATE: No, definitely not.
MR. [BANIA]: Okay. (Indistinct).
FEDERAL MAGISTRATE: No, no. No, Mr [Bania], because there are matters in this that are quite significant. I assume that’s your position, Ms Sloan. I don’t think, from my point of view, that I’d be happy with her evidence by phone. What do you say?
MS SLOAN: No, we’d require Ms [G] ---
FEDERAL MAGISTRATE: I think in person. Now, just leaving that matter to one side, this contravention; subsequent to the problem that has been complained about in January and which your client may or may not be pleading either reasonable excuse or whatever, and I won’t prejudice the position there, Ms Sloan. But since then, has the father’s time with the children been happening as it’s supposed to, with the two children? (Transcript 17 May 2007, page 66 & 67).
The trial resumed on 23 May 2007. As the husband fairly conceded, at that time he did not renew his application to the learned Federal Magistrate for leave to have Ms G give evidence in chief by telephone. Nor had he provided an affidavit of any evidence which he sought to have Ms G adduce.
Having read the totality of the transcript of the proceedings, a number of inferences can be drawn. It is evident from the transcript that the learned Federal Magistrate, rather than simply draw inferences adverse to the husband by reason of his failure to have Ms G give evidence with respect to matters in which, on the husband’s own evidence, Ms G was involved, raised that matter squarely with the husband and made clear why she was doing so. Given the husband’s own evidence with respect to Ms G, it was entirely reasonable of Counsel for the wife to insist that Ms G be present to give evidence and for her Honour to uphold that stance. It is clear from the cross examination of the husband that any cross examination of Ms G would necessarily have involved the presentation of documentation.
It is reasonably apparent from the cross examination of the husband that, without Ms G giving evidence in person, her Honour would not have been able to afford any controversial evidence given by Ms G any significant weight. In the circumstances of this case, as the evidence had developed to that stage, to have acceded to the husband’s request, and to attach any weight to Ms G’s evidence, would have been to deny the wife natural justice.
Other than the husband’s assertions in the Federal Magistrate’s Court and in this Court that Ms G was unable to attend Court, no evidence of that inability was presented. Were it necessary to do so, a number of inferences adverse to the husband could be drawn from the circumstances surrounding the failure to have Ms G attend Court to give evidence in person or provide any admissible evidence in support of her alleged inability to do so.
In this Court’s view, the learned Federal Magistrate very properly raised the question of Ms G giving evidence with the husband and indicated clearly to him the possible consequences of her failing to do so. In fairness, the husband does not suggest that he misunderstood in any way the effect of the matters raised by her Honour.
The husband’s contentions also conveniently overlook the reality that, in circumstances where he bore the onus of proof, on his own evidence in cross examination, Ms G should have sworn an affidavit in the proceedings at some point during the more than two years between the filing of the husband’s application and the trial before the learned Federal Magistrate.
There is no suggestion by the husband that Ms G was at any time a reluctant witness in his case. It can be inferred from the transcript that the appellant preferred not to have Ms G give evidence at all but that, when faced with the possible adverse consequences of not having her give evidence, the husband sought to do so in a way which precluded effective cross examination of Ms G. This challenge fails.

Section 58(2) complaint

Although it would be reasonable to assume that the husband’s submissions with respect to s 58(2) of the Child Support (Assessment) Act would assert appealable error on the part of the learned Federal Magistrate whose decision in September 2007 gives rise to the present appeal, the lengthy submissions of the husband in relation to the section suggest a different intention.
To the extent however that the husband asserts appealable error by the learned Federal Magistrate by virtue of the provisions of s 58(2), no such error has been demonstrated.
It is perhaps useful at this point to set out s 58(2) of the Child Support Assessment Act 1989 (Cth), the sub section provides:
(2)      If:
(a)      the Registrar has made an administrative assessment applying subsection (1) or (1A); and
(b)      the Registrar subsequently ascertains the person's taxable income under that Act for the year of income (whether or not the Commissioner has made an assessment under that Act of the person's taxable income for the year of income and of the tax payable on that taxable income) and the person's supplementary amount under this Act for the year of income;
the Registrar must immediately amend the administrative assessment on the basis that the person's taxable income for the year of income is, and has always been, the subsequently ascertained taxable income and that the person's supplementary amount for the year of income is, and always has been, the subsequently ascertained supplementary amount, or both (as the case may be).
As was submitted by Counsel for the respondent and for the Child Support Registrar, s 58(2) had no relevance to the proceedings before the learned Federal Magistrate. A reading of the section should make obvious why that is so, but in case there be doubt, her Honour was exercising jurisdiction as a court and not as a registrar. The jurisdiction which her Honour was exercising, it is not in doubt, was that conferred by Part 6 of Division 4 which relates to “orders for departure from administrative assessment in special circumstances (departure orders)” and not the making of an administrative assessment.
Although not a matter which could lead to success in this appeal, the husband’s submissions seem to suggest that the Child Support Registrar, in assessing child support in December 2001, and the reviewing officer, in rejecting the husband’s objection to such assessment in February 2002 failed to comply with the provisions of s 58(2) of the assessment legislation.
It is not without significance that departure applications determined by a Registrar pursuant to Part 6A Division 2, which governs departure applications determined by Child Support registrars does not import, or in any way render relevant the provisions of s 58(2). If, contrary to the Court’s construction of the provisions of Part 6A Division 4, the Registrar should or could have regard to the provisions of s 58(2), but failed to do so, that would have been a basis for further review. That avenue was apparently not pursued. Doing to now is not an option realistically open to the husband.
As the terms of the husband’s amended application filed 12 October 2005 make clear, the various orders then sought by him were predicated on the December 2001 and February 2002 determinations being valid. The husband has thus, in the period of more than 3½ years which followed the February 2002 decision, failed to pursue any course by which the determination might be further reviewed.
The learned Federal Magistrate could not be criticised for failing to deal with an application which was not before her. In fairness, in his written submissions the husband suggests that “by implication” his application sought was “asking for s 58(2) to be enforced”.
The terms of paragraphs 5, 6 and 7 of the application does not in this Court’s view give rise to such an implication, particularly given the terms of Order 4 there sought. The application clearly sought departure from the previous determination of the husband’s liability for child support and, consequent thereupon, a determination of his liability in the terms set out in the various other paragraphs of his application.
To the extent that in a broad sense the proceedings before the learned Federal Magistrate might in some way have traversed the provisions of s 58(2), nothing to which the appellant has referred this Court suggests that either her Honour’s failure to do so, or the asserted failure of Child Support Registrars to do so constitutes a basis for appellate intervention by this Court.
Although the husband appears not to acknowledge it, the reality is that if a Child Support Registrar acted in the way the husband suggests that he or she would be obliged to under s 58(2), all that would result would be either an application to a Court to review that decision having regard to the means of the liable parent, or a departure application.
Having regard to Purdy J’s findings of fact, upon which the husband places considerable and repeated reliance, howsoever approached, it is highly improbable that in 2002 the husband’s capacity to pay child support would have been determined by reference to his taxable income. Some of the relevant passages of Purdy J’s October 2002 judgment which are relevant in that regard have earlier been cited. Purdy J found that the appellant “almost certainly does not pay as much as he would if he did not have [A] because the method is quite plain, [A] pays him a salary and [A] pays its own company tax and the husband is assessed on the salary that [A] pays him, and any profits that [A] may make are not the subject of any assessment by the Child Support Agency. This is just a routine situation”.
His Honour also later recorded that “the Court would have had more information if the husband had called his accountant” the husband having failed to provide accounts for the financial year ended 30 June 2002, and the Court’s knowledge of those matters arising “only from Counsel for the wife’s strenuous attempts to get some information before the Court”. It could not thus be assumed, that, however it occurred, the husband’s taxable income would have been other than prima facie evidence of his capacity to pay child support.
Purdy J ultimately concluded that he was unable to:
56.…assess what the annual profit of [A] would actually be for the year ending 30 June 2002. I cannot accept that the figures were really not available to the husband in such a small organisation, but I’m stuck with the situation. I can only say that I suspect when [A’s] taxation return is completed for the year ending 30 June 2002, it will show a vastly increased profit over that of 30 June 2001 and on the balance of probability I would think the profit would at least double.
In the context of determining an appropriate adjustment pursuant to s 75(2) of the Family Law Act 1975 (Cth), Purdy J made a “finding that there is a massive imbalance” in the earning capacities of the parties, such imbalance favouring the husband. In the face of that finding, it is difficult to see how s 58(2) could have assumed any real significance in any child support proceedings.
Nothing to which the husband has referred this Court establishes appealable error by the learned Federal Magistrate by virtue of the provisions of s 58(2) of the Assessment legislation.

The further evidence application

The husband filed an application for leave to adduce further evidence in the appeal.
It seems that the effect of the further evidence was contended to be to show that the Child Support Agency itself acknowledged the obligation to apply s 58(2) in the circumstances of this case. The Court does not accept that the evidence, in another case about which this Court knows nothing, has the effect for which the husband contends, but even if it did, that does not bind this Court which has a clear obligation to determine for itself whether the learned Federal Magistrate was obliged to apply s 58(2) of the Assessment Legislation as the husband contends, or whether, as the wife and the Child Support Agency contend, s 58(2) was not relevant to the proceedings before her Honour.
In CDJ v VAJ (1998) 197 CLR 172 at page 201 McHugh, Gummow and Callinan JJ said:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
The further evidence upon which the husband seeks to rely, if accepted, could not render erroneous the learned Federal Magistrate’s decision.

Conclusion

No ground of appeal having been made out, the appeal will be dismissed.

Costs

The wife sought an order that the husband pay her costs in the event of the appeal being dismissed.
The husband informed the Court that he is a university law student, and an undischarged bankrupt, who receives in total $825 per fortnight by way of government benefits from which he pays $205 per week by way of rent. The husband pays his rent to Ms G. The husband denies that Ms G lives in the “investment” premises which he rents from her.
Whilst in all probability the issue is academic, there being, as the husband acknowledged, little prospect that the wife’s attorneys will get anything out of him pursuant to any order for costs which this Court might make, the Court is of the opinion that the circumstances of this case justify the making of an order for costs and will so order. The husband’s lack of success is the major factor relied upon in forming such opinion.
Rather than subject the attorneys for the wife to the cost of assessing a bill of costs which probably will not be recovered in any event, the Court assesses a contribution to the costs of the successful respondent wife in the appeal in the sum of $1000, three months being allowed in which to pay such sum. The Court acknowledges that such sum represents only a modest proportion of the expense incurred by the wife in her successful opposition to the husband’s appeal.

I certify that the preceding eighty nine (89) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman.

Associate:

Date: 27 June 2008