Beetham and Clear
[2018] FamCAFC 5
•16 January 2018
FAMILY COURT OF AUSTRALIA
| BEETHAM & CLEAR | [2018] FamCAFC |
| FAMILY LAW – FURTHER AMENDED NOTICE OF APPEAL – LEAVE TO APPEAL – Where the applicant seeks leave to appeal the decision of the trial judge refusing her leave to pursue a departure application – Where the applicant seeks to rely on a number of documents as comprising further evidence – Where the necessary leave has not been sought, nor has the relevant sub-rule or the practice direction been complied with – Where the documents cannot be received and the applicant’s oral application will be dismissed – Where the decision of the trial judge is not attended by any doubt, or even sufficient doubt, to warrant it being reconsidered – Where the trial judge properly considered all relevant matters, made no mistake as to the essential facts and acted on the correct principles – Leave to appeal refused. |
| Child Support (Assessment) Act 1989 (Cth) ss 102, 111 and 112 Family Law Rules 2004 (Cth) r 22.39(1) |
| CDJ v VAJ (1998) 197 CLR 172 House v The King (1936) 55 CLR 499 |
| APPELLANT: | Ms Beetham |
| RESPONDENT: | Mr Clear |
| FILE NUMBER: | ADC | 58 | of | 2016 |
| APPEAL NUMBER: | SOA | 85 | of | 2016 |
| DATE DELIVERED: | 16 January 2018 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 22 May 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 31 August 2016 |
| LOWER COURT MNC: | [2016] FCCA 2583 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
Orders
The oral application by the applicant mother for leave to adduce further evidence be dismissed.
The application for leave to appeal contained in the Further Amended Notice of Appeal filed on 10 January 2017 by the applicant mother be dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Beetham & Clear has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SOA 85 of 2016
File Number: ADC 58 of 2016
| Ms Beetham |
Appellant
And
| Mr Clear |
Respondent
REASONS FOR JUDGMENT
Introduction
By Further Amended Notice of Appeal filed on 10 January 2017 Ms Beetham (“the mother”) seeks leave to appeal, and if leave is granted, to appeal against an order made by Judge Kelly on 31 August 2016 dismissing the mother’s application for leave to amend a child support assessment.
The application for leave and the appeal if leave is granted, are opposed by Mr Clear (“the father”).
On 9 May 2017 the mother filed an affidavit referring to a number of documents which she sought be received as further evidence. However, there was no application in an appeal filed by the mother seeking the necessary leave, and in any event sub-rule 22.39(1) of the Family Law Rules 2004 (Cth) (“the Rules”) provides for such an application to be filed at least 14 days before the date of commencement of the sittings in which the appeal is listed for hearing, and that rule had not been complied with. Further, there was no compliance at all with paragraph 6 of Practice Direction no. 1 of 2017. Despite this, at the hearing I indicated to the mother that I would rule on whether I would receive the further evidence depending on what came out of the application for leave to appeal.
Having now heard the application I am not persuaded that applying the principles laid out by the High Court in CDJ v VAJ (1998) 197 CLR 172, the documents can be received. It is an attempt by the mother to re-run her case as presented in the court below, and in any event much of the further “evidence” is inadmissible. Accordingly I will dismiss the mother’s oral application for leave to adduce that further evidence.
Background
On 2 January 2015 the mother filed an application with the Child Support Registrar, seeking to depart from the administrative assessment of child support for the one child of the relationship. She sought to vary the assessment from the commencement of the child support obligation on 2 September 2010. However, the Child Support Registrar is not able to vary a determination for a child support period more than 18 months prior to the date of the application without leave of the court (s 98S(3B) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”)).
The application before the trial judge was the mother’s application pursuant to ss 111 and 112 of the Assessment Act for that leave. She sought to proceed with her departure application for the period 2 September 2010 to 3 July 2013.
The reasons for judgment of the trial judge
In determining whether to grant leave the court is required to consider the reason for the delay, the hardship that would be caused to the relevant party if leave is not granted or if it is granted (s 112(4)). Further, there is a catch-all provision that allows a court to have regard to any other relevant matter (s 112(5)).
Her Honour was satisfied that the mother gave an adequate explanation for the delay in bringing the application. The mother placed a great deal of evidence before the court as to her personal circumstances during the period 2010 to 2013, and her Honour accepted that evidence.
In relation to the issue of hardship, her Honour found that the mother had “incurred significant expenses, particularly in relation to school fees, but also in relation to [the child’s] orthodontic and other healthcare costs” (at [7]). Her Honour continued at [8]:
… While the [mother] may not succeed in relation to each expense claimed as a ground for departure, I accept that she is in a difficult financial situation and has struggled financially to provide for her own support and [the child’s] support across the years …
For the father’s part, her Honour recorded the father’s claim “that he will be faced with significant hardship and he may be confronted with an even larger child support debt which he is unable to repay” (at [9]).
Her Honour then found as follows:
11.There is no doubt that both parties are struggling financially and one or the other will experience hardship, depending upon the Court’s decision. The [father] is currently not working and is supported by his partner, who is effectively covering his financial outlays at present. He has significant debts outstanding and is close to declaring himself bankrupt, albeit his child support debt will obviously remain.
12.The [mother] also carries a significant debt burden, much of which arises from [the child’s] school fees. She is struggling to manage on her income at the present time.
Turning to s 112(5) of the Assessment Act, at [15] her Honour considered one relevant matter to take into account was:
… the realistic outcome that may follow from any departure application if leave was granted to proceed. Even if the [mother] was successful in both this application and her departure application, the best outcome she would achieve is an increase in the arrears of child support owed by the [father]. The likelihood of the [father] ever being in a position to discharge these arrears seems virtually non-existent, in light of previous difficulties in that regard and in light of the [father’s] present financial circumstances.
Her Honour rejected the argument of the mother that the father had “deliberately constructed his financial situation to avoid his child support obligation” (at [16]). There was no evidence to support that argument, just as there was no evidence that the father had “previously earnt undisclosed cash income and may be continuing to earn such income …” (at [14]).
Her Honour then concluded as follows:
19.The Court has enormous sympathy for the [mother’s] position and I well understand why she has pursued this matter and why she feels that the present circumstances are gravely unjust to her. After consideration of this matter however, I am not satisfied that the evidence justifies the Court now granting the leave sought by her. On the contrary, the evidence suggests that both parties were in very difficult financial circumstances during the relevant years, as indicated by the Affidavit material filed by them both. As the evidence presently stands, I am not satisfied and indeed, consider it unlikely that a departure application would succeed in light of the [father’s] financial situation.
Leave to appeal
Her Honour’s order was made pursuant to the Assessment Act, and leave is required to appeal that order (s 102 of the Assessment Act).
Although it has not been universally accepted, the test most commonly applied in determining leave to appeal in this Court is whether, in all of the circumstances, the decision below is attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
Discussion
The mother appeared before her Honour without legal representation, and she has done likewise in this application.
Unfortunately, the mother has been unable to grasp what is required in an application for leave, and if leave is granted, an appeal. Despite this Court’s attempts to assist her in that understanding, she has persisted in proceeding on the basis that this is an opportunity to re-run the case that she ran below.
The mother has filed a Notice of Appeal, an Amended Notice of Appeal and a Further Amended Notice of Appeal, but she has still not managed to adequately set out the factual basis for her application for leave to appeal, and she has persisted in relying on a lengthy narrative as her grounds of appeal if leave is granted. I allowed the application to proceed though because in her Further Amended Notice of Appeal she summarised her complaints making it apparent what they were. That summary is as follows:
…
1. UNREASONABLE EXERCISE of DISCRETION
2. MISCONSTRUED THE LEGISLATION
3. RELEVANT CONSIDERATIONS (Not Taken Into Account)
4. DENIED PROCEDURAL FAIRNESS
5. IRRELEVANT CONSIDERATIONS (Taken Into Account)
6. ERROR OF LAW
…
Further, given the inadequacy of the basis for leave being granted, I allowed the mother to rely on her complaints to provide that basis.
Outcome of application
Having carefully considered her Honour’s reasons for judgment, and the evidence that was before her, her Honour’s decision is not attended by any doubt let alone sufficient doubt to warrant it being reconsidered.
First, it has not been established that her Honour erred in the exercise of her discretion. This is best explained by reference to the well-known quote from House v The King (1936) 55 CLR 499 at 504 – 505:
… It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
Here it is plain that her Honour properly considered all relevant matters, made no mistake as to the essential facts, and acted on the correct principles. Further, it is readily apparent from her Honour’s reasons how she reached the result embodied in the order, and it cannot be said that that result was unreasonable or plainly unjust, given the evidence that was before the court.
Secondly, her Honour was alert to what the relevant legislation provided, and she did not misconstrue the same.
Thirdly, her Honour took into account the circumstances which were relevant. What the mother does not seem to appreciate is that it was not her Honour’s task on the application before her to determine whether there were grounds for departure. The question was whether leave should be given to the mother to pursue those grounds of departure.
Fourthly, the alleged denial of procedural fairness relates to claims by the mother that her Honour allowed the father to file his affidavit late, and she refused to adjourn the proceedings. As to the former issue, her Honour allowed the mother time to look through the father’s affidavit to see if there was anything she wanted to respond to. After a short adjournment, the mother indicated she had been able to consider the contents of the affidavit and she then proceeded to address certain issues that arose from that consideration. Importantly, at no stage did the mother seek an adjournment as a result of the late filing of this document. In any event, as is apparent from the transcript of the hearing before her Honour, many of the matters deposed to in that affidavit, and then sought to be addressed by the mother, were irrelevant to the application that was before her Honour, and her Honour was at pains to point that out to the parties. As to the latter issue, there was no application to adjourn in relation to the late filing of the affidavit, and as the mother ultimately conceded, there was in fact no application to adjourn at any time. During the hearing, when discussing the mother’s response to the material filed by the father, the mother indicated that she would be “happy to give a response in writing, if need be, but [she would] need time to go away and prepare that” (Transcript 31 August 2016, page 16, lines 1 – 6). Her Honour replied that that was not to happen because she wanted to try and conclude the hearing that day. As is apparent that cannot be described as an application to adjourn the proceedings, let alone a refusal by her Honour which amounted to a denial of procedural fairness.
Fifthly, it is not a case of her Honour taking into account irrelevant considerations when a trial judge takes into account the evidence that is before the court, and not evidence that was not before the court.
Sixthly, although the father failed to comply with the timeframe for filing documents, her Honour was able to ensure that the mother was not thereby disadvantaged by allowing her time to consider the father’s affidavit, and by confirming with the father that he had provided what he was able to.
As to the question of substantial injustice, that is premised on the basis that the decision is wrong, and this Court is not persuaded of that. As explained by her Honour, the court had “enormous sympathy for the [mother’s] position” (at [19]), but the crucial factor for her Honour was that on the evidence, there was no likelihood of the father being able to discharge the arrears that would be incurred if a departure application was allowed to proceed, and was successful. Indeed, as her Honour said, it was “unlikely that a departure application would succeed in light of the [father’s] financial situation” (at [19]).
Plainly the mother is not happy with her Honour’s decision, but that is far from being the test.
In the circumstances leave to appeal will be refused.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 16 January 2018.
Associate:
Date: 16 January 2018
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