C & M

[2006] FamCA 1370

FAMILY COURT OF AUSTRALIA

C & M

[2006] FamCA 1370

APPEAL – APPLICATION TO EXTEND TIME TO APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – REASONS FOR DELAY – Orders were made in the Federal Magistrates Court in August 2001 (in the father’s absence) providing for the father to pay periodic child maintenance to the mother in the amount of $100 per week for each of their two children – The father wished to challenge the orders on the basis that they should not have been made because the Child Support (Assessment) Act 1989 applied, as separation of the parties took place in 1990 – The father could not offer an explanation as to why he did not attend at the hearing of the mother’s child maintenance application in 2001 – In respect of subsequent proceedings, he raised doubts that he received court documents as he might or should have – As to the delay in bringing the application, the father deposed that he was unaware until some time in 2003-2004 of the significance of the date of separation to the basis upon which he might be called upon to pay child maintenance – He then tried unsuccessfully twice in the Federal Magistrates Court to have the maintenance orders discharged or set aside – The father’s arguments in repsect of delay were fairly weak, particularly as a reasonable inference could be drawn that the father was not greatly perturbed by the orders until 2004.

Federal Magistrates Court Rules 2001, r 16.05(2)(a), (b)
Family Law Act 1975 (Cth), ss 66E, 66G
Child Support (Assessment) Act 1989, s 20(1)

APPLICANT: C

RESPONDENT: M

FILE NUMBER: BRM 3840 of 2001

APPEAL NUMBER: NA 84 L of 2006

DATE DELIVERED: 19 DECEMBER 2006

PLACE DELIVERED: Brisbane

JUDGMENT OF: WARNICK J

HEARING DATE: 16 NOVEMBER 2006

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 14 August 2001

LOWER COURT MNC: [2001] FMCAfam 135

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms McMILLAN

SOLICITOR FOR THE APPLICANT: Manby and Scott

COUNSEL FOR THE RESPONDENT: Mr THIELE

SOLICITOR FOR THE RESPONDENT: Ritchie Solicitors

Order

1. That the application of the father filed 11 October 2006 be dismissed.

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 84 L of 2006
File Number: BRM 3840  of 2001

C

Applicant

And

M

Respondent

REASONS FOR JUDGMENT

1. Over five years ago, on 14 August 2001, Federal Magistrate Rimmer ordered that the father pay periodic child maintenance to the mother, of $100 per week for each of their two children.  The orders were made in the absence of the father.  The application to which these reasons relate is that of the father filed over five years later in October 2006, in which he seeks an extension of time within which to appeal the decision of Rimmer FM.

2. The proposed ground of appeal is simply:

   “The learned magistrate erred in making child maintenance orders under the Family Law Act when the provisions of s66E of that Act precluded the making of such orders – given the parties separated in 1990.”

3. The mother filed an application seeking that, in the event that time within which the father could appeal was extended, the father provide security.  I stood that application over until the determination of the issue of extension of time.

4. The application raises a number of issues:

   (i)     The explanation for delay in seeking an extension;

   (ii)    The character of various proceedings, and the judicial determinations of them, between the order of Rimmer FM in August 2001 and the filing of the instant application;

   (iii)     The prospect of success on the appeal; and

   (iv)   The extent of injustice to each of the parties resulting from a decision one way or the other.

5. The above questions are not necessarily entirely discreet the one from the other, but each is a significant issue.

6. I will discuss them after a short background.

Background

1. The two children of the relationship are “D” born September 1986 (so now over 20 years of age) and “S” born February 1989 (18 years in early 2007).

2. The text of the father’s affidavit in support of his application is comprised of only about nine sentences.  He provided relevant history by annexing to his affidavit copies of an earlier affidavit that he had sworn in relation to proceedings determined by a judgment of Jarrett FM on 25 August 2006, together with a copy of that judgment.  Though it thus appears that the father relies upon the content of the judgment to establish facts, I have endeavoured not to have regard to the reasons for judgment of Jarrett FM or of Rimmer FM for the purpose of the proof of necessary facts before me, but rather as bearing upon the prospects of success of the father on appeal and to demonstrate the character of and disposition of the proceedings determined and other proceedings discussed by the Federal Magistrate.

3. In his annexed affidavit, the father deposed to matters which led him to say that final separation was in December 1990, albeit he acknowledged periods of separation were a feature of the relationship.  He also asserted that there was a period of resumption of cohabitation for one to two months in 1991; at the time of the primary orders he was in receipt of a disability pension and owned some real estate; the pension was his sole source of income; that he remains on the disability support pension; he has no assets except his furniture and house; and to the best of his knowledge the children have been away from the mother and financially self sufficient since they turned 16 years of age.

4. The father said that he became aware of the mother’s initial application for child maintenance before the hearing date of it, but could not recall exactly why he did not attend the hearing.  In his reasons, Jarrett FM records that Rimmer FM had expressed satisfaction that the father had been given proper notice of the hearing.

5. In February 2002, orders were made that contemplated the filing by the father of an application for variation of the primary child maintenance orders.  This the father did not do.  Subsequently, there were enforcement proceedings and in mid-2002, an order was made appointing the sheriff to seize and sell the father’s residential property. 

6. However, said the father, in 2002 he was unaware of most of the court proceedings that took place and he raised doubts that he received court documents as he might or should have.  He was also distracted by serious questions relating to the care of a child of himself and a “Ms Y”.  Further, he recounted circumstances which led him to a belief in 2002/2003 that “the Respondent’s maintenance application would be dismissed.”

7. In 2004, the father brought proceedings described by Jarrett FM in his 2006 reasons, by quoting from his 2004 reasons, as follows:

   “2.…

   “14.The present proceedings were commenced, as I said at the outset, by an application filed on 2 April 2004. The application is not brought on the basis of Rule 16.05 of the Federal Magistrates Court Rules 2001, nor is it pursued on the basis of the court’s inherent power to set aside orders made in the absence of a party (see Taylor v Taylor (1979) 143 CLR 1). Rather, the [father’s] application is made pursuant to s 66S of the Family Law Act 1975.”

   3.I dismissed the application.  Although commenced, no appeal against my judgment was prosecuted by the applicant.”

8. The subsequent application before Jarrett FM in 2006 was described by the learned Magistrate in his reasons as seeking:

   “1.That pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rule 2001 the decision of Rimmer FM made 14 August 2001 be set aside.

   2.That the Application in Form 12 for Child Maintenance filed 4 December, 2000 and Amended Application in Form 12 filed 14 December 2000 be dismissed.

   3.Such orders as to costs as the Honourable Court deems meet.”

9. In explanation for the course he now follows, the father suggests that Jarrett FM, in his judgment in August 2006, indicated that an appeal against the 2001 maintenance orders was the appropriate process for resolving the father’s dilemma.

10. What the Federal Magistrate said was:

    “60.The applicant contends that on the basis of her Honour's reasons for judgment, the orders that she made were without jurisdiction.  That is a matter of dispute, and having regard to the evidence before her Honour, may be explained by there being an error in her reasons.  As McGill DCJ suggests in AMH v Higgs that controversy is better left to a court of appeal "which has undoubted jurisdiction to determine the matter authoritatively".  I am aware, of course, that the applicant would have to secure an extension of time within which to appeal from the Full Court.”

11. The father has not made any payment pursuant to the orders.

1. The explanation for delay in seeking an extension

1. As to delay, the father deposes that he was unaware of the significance of the date of separation to the basis upon which he might be called upon to pay child maintenance, until some time in 2003-2004.  In his affidavit for the proceedings before Jarrett FM in 2006, he said:

   “6.The significance of the date of separation was brought to my attention by my legal representatives for the residence and contact proceedings between myself and my then new partner [Ms Y], in relation to our son [J] born [in] 2001.  I believe that their attention was drawn to the relevance of these proceedings and subsequently the date of separation specifically because of [Ms Y’s] assertions that I was unable to care for my son due to the impending sale of my home in accordance with Orders made 30 October 2003.”

2. The father deposes:

   “28.I have always felt overwhelmed by these proceedings especially at times when they coincided with proceedings in relation to residence and contact for my other children.  I have tried to seek legal assistance to present my case but have more often than not been unsuccessful  in this quest.  I can also state that my ongoing depression has impacted on my ability to represent myself.  I am not able to present court documents or other material in such a complex matter on my own.  I do not have any formal qualifications and completed high school in Form 4.”

3. The father’s arguments in respect of delay are fairly weak.  It is relevant in my view that he cannot say why he did not appear at the proceeding when the substantive orders were made.

4. From his inaction from then until 2004, one might reasonable infer that he was not greatly perturbed by the orders, notwithstanding what he says of his preoccupation with other matters, the possibility that he did not receive all relevant documents and some apprehension that the orders would be in some way cancelled.

5. Then, from the time at which he learned of the significance of the date of separation, there is an uncertain period before proceedings were commenced in the Federal Magistrates Court, but in that regard, he has now tried twice to have the orders set aside by processes other than appeal and failed on each occasion.

1. The character of various proceedings, and the judicial determinations of them, between the order of Rimmer FM in August 2001 and the filing of the instant application

1. A primary question arising in respect of earlier proceedings is whether the father has already pursued an application to set aside the primary orders on the same basis upon which he now wishes to appeal.

2. The father himself described the application before Jarrett FM in 2006 in these terms:

   “3.I have made an Amended Application to have the Orders of Her Honour Federal Magistrate Rimmer set aside and for the mother’s Application for child maintenance reheard on the basis that this matter involved a stage 2 child support assessment rather than a stage 1 child maintenance order as decided by this Honourable Court.”

3. The learned Magistrate described the application before him in 2006 as, that pursuant to Rule 16.05(2)(a) of the Federal Magistrates Court Rules 2001, the decision of Rimmer FM made 14 August 2001 be set aside.

4. He then said:

   “6.Apart from the express application under r 16.05(2)(a) of the Federal Magistrates Court Rules 2001 (“FMCR”) another two bases were identified in argument as supporting the setting aside of the maintenance orders. The first was that the maintenance orders were made without jurisdiction and should be set aside for that reason alone. The second, perhaps more implicit than explicit, was that the orders had been obtained by fraud or false evidence on the part of the applicant and therefore liable to be set aside pursuant to FMCR 16.06(2)(b).”

5. The learned Magistrate then considered the rule relied upon by the father, which provided that the court could vary or set aside its judgment or order after it had been entered in certain circumstances, importantly the absence of a party or obtained by fraud.  In addressing the father’s case based upon the rule, after a review of authority, the learned Magistrate said that in respect of such applications:

   “34…

   a)…

   b) There are three criteria, each of which should usually be demonstrated before a judgment or order is set aside under FMCR16.05(2)(a), namely:

   i)     a reasonable explanation for the applicant's absence at the trial or hearing;

   ii)   material arguments available to the applicant that might reasonably lead to the making of an order different to that sought to be set aside; and

   iii)  prejudice to the party with the benefit of the orders sought to be set aside that is not able to be adequately addressed by the Court.

   c) Matters relevant to the three criteria set out above will include, but will not necessarily be limited to:

   i)     Whether a party with notice of proceedings disregarded the opportunity of appearing at and participating in the trial;

   ii)   Delay, if any, in bringing the application to set aside and whether, if during the period of delay the successful party has acted on the judgment, or third parties have acquired rights by reference to it;

   iii)  the conduct of the applicant since the judgment or order sought to be set aside was made.”

6. Speaking of the proceedings he determined in 2004, Jarrett FM said:

   “37.…His variation/discharge application was prosecuted to judgment before me.  The applicant had legal representation at the trial of that application before me.  The present issue about the date of separation was not raised, and it seems to me that it ought to have been.

   38.The applicant alleges that the significance of the date of separation was never brought to his attention by his legal advisors, nor was it realised by him.  As I have set out below, however, because he was demonstrated to have sworn that the date of separation was 1989, I cannot accept his evidence that the date of separation was a serious issue that he would have raised had his legal advisors made him aware of its significance.  Indeed, at the time he commenced his variation/discharge application, he had the respondent's material that led to the making of the maintenance orders, he knew those orders had been made, yet in his own supporting material swore that the date of separation was in 1989. (emphasis added)

   39.There is simply no explanation, reasonable or otherwise, for the applicant's failure to attend the hearing on 14 August, 2001.

   40.The applicant argues that he has a good defence to the respondent's claim for child maintenance in her original application.  He asserts that those orders were made without jurisdiction.  He says that they were made without jurisdiction because:

   (a)Rimmer FM found that the parties had separated in December, 1990;

   (b)the Child Support (Assessment) Act1989 ("the Child Support Act") commenced operation on 1 October, 1989;

   (c)the parties and their children are subject to the provisions of the Child Support Act by reason of the operation of s 20 thereof;

   (d)by s.66E(1) of the Family Law Act1975 this court was prohibited from making a child maintenance order such as that sought by the respondent.

   41.The applicant urges that I should make my own finding that separation occurred in August, 1990 and thereby find that the maintenance orders were without jurisdiction.  Both parties urged me to treat this hearing as a hearing of the application to set aside the maintenance orders and the rehearing of the respondent's maintenance application if I was minded to set aside the maintenance orders.  That is to say, the parties have led all of the evidence they wish to lead on the question of the date of separation.  It is against that background that I will consider the applicant's claim to a material argument that might lead to a different order than that which he seeks to set aside.

   42.The starting point for the applicant's contention is Rimmer FM's reasons for judgment.  The applicant contends that her Honour found that the parties separated in December 1990.  What her Honour said was:

   “8.The mother in her material has established the following facts: the parties did not marry, they cohabited from 1985 to 1990.  There are two children of the relationship, namely [D] born […] September 1986 who is now almost 15 years of age, and [S] born […] February 1989 who is now aged 12½.”

   …

   43.I harbour grave doubts that the above passage constitutes a "finding" that the date of separation was in 1990. At best it could be a finding that the parties lived together (cohabited) for the stated period, but that says nothing about when they "separated" for the purposes of s 20 of the Child Support Act.

   …

   48.On the evidence before Rimmer FM, no conclusion other than that the date of separation was in 1989 or July 1989 was open.  To the extent that her Honour's reasons refer to the cessation of cohabitation in 1990 and that thereby there is a "finding" that the parties separated in 1990, the reasons are not supported by the evidence.  The evidence before her Honour about separation establishes that the date of separation was in July, 1989.  To the extent, therefore, that the applicant's case rests solely on the notion that the orders made by Rimmer FM are not available given her reasons for judgment, what is revealed is perhaps an error in her reasons, rather than an error in the orders. (emphasis added)

   49.At the hearing before me it was proved that the respondent has sworn affidavits in the past wherein she deposed that the parties separated in August, 1990.  Exhibits 1 – 5 all contain statements by her to that effect.  They are all plainly inconsistent with what she swore in the applications for maintenance to which I have earlier referred.

   50.Equally, it was proved that the applicant has sworn statements to the effect that the parties cohabited between 1985 and 1989, contrary to what he now swears.  He also stated (although it is not sworn) that the date of final separation was 1989.  On 17 February, 2004 he swore that: "The applicant mother and I were in an "on again off again" relationship from approximately 1986 to 1989.  The mother then moved from Victoria to Queensland with the children [D] and [S] in 1990…".

   51.Both parties were cross-examined before me.  Neither was an impressive witness – each having sworn previously to facts contrary to those that they now allege. 

   52.I agree that if the applicant's present version of events is to be accepted, arguably the orders of 14 August, 2001 were made without jurisdiction.  But the onus is on him to establish on the balance of probabilities that separation was at some time other than that alleged by the respondent before Rimmer FM.  On the evidence, he does not discharge that onus.  In the past, he has alleged that separation occurred in 1989.  There is no reason, in my view to accept his uncorroborated testimony over the respondent's uncorroborated testimony.  He fails to discharge the onus of proof on him.

   …

   58.For reasons that I hope I have made plain, I am not persuaded that the maintenance orders were made without jurisdiction.  In any event, if I am wrong about that, I am not persuaded that I should set them aside.”

1. The prospect of success on the appeal

1. In his affidavit in support of his application the father deposed:

   “2.The learned magistrate (at paragraph 8 of her judgement) recognised that the respondent and I lived together until 1990.

   3.My understanding is that in such a case, section 66E Family Law Act requires that the court not make child maintenance orders.”

2. Section 20(1) of the Child Support (Assessment) Act 1989 provides that a child is eligible for child support where the parents have cohabited and then separate “on or after the commencing day”, being 1 October 1989.

3. Subsection (2) goes further and provides:

“(2)  Subsection (1) applies in relation to the child whether or not the parents:

(a)are or were at any time legally married; or

(b)have separated on an earlier occasion; or

(c)have resumed cohabitation.”

1. Sections 66E and 66G of the Family Law Act 1975 (Cth) provide:

   “66E  Child maintenance order not to be made etc. if application for administrative assessment of child support could be made

   (1)A court having jurisdiction under this Part must not, at any time, make, revive or vary a child maintenance order in relation to a child on the application of a person (the applicant) against, or in favour of, a person (the respondent) if an application could properly be made, at that time, under the Child Support (Assessment) Act 1989 for administrative assessment of child support (within the meaning of that Act):

   (a)by the applicant seeking payment of child support for the child from the respondent; or

   (b)by the respondent seeking payment of child support for the child from the applicant.

   (2)Subsection (1) has effect whether or not an application for administrative assessment of child support for the child has in fact been made (whether by the applicant, the respondent or another person).

   (3)This section does not apply to proceedings under regulations made for the purposes of section 110 or 111A.

   66G  Court’s power to make child maintenance order

   In proceedings for a child maintenance order, the court may, subject to this Division, make such child maintenance order as it thinks proper.”

2. Both legal representatives before me made submissions asserting or accepting the proposition that if the parties had separated in 1990 then the Family Court or any court applying the Family Law Act lacked jurisdiction to make child maintenance orders in respect of the parties’ children. Although I think it not a point that has to be decided, I do not necessarily accept that proposition, as I consider the effect of s 66E to be a restriction on the capacity of the court to exercise the power contained in s 66G, rather than a withdrawal of jurisdiction.

3. The essential point, as to whether Rimmer FM at the time of making the order for child maintenance had power/jurisdiction, depends on the facts. It seems to me that it is far from a foregone conclusion that, as a matter of fact, the father could establish on appeal that s 66E of the Family Law Act had application to him at the time the primary order was made.

4. Thus, the prospects of his success on appeal are questionable and perhaps highly questionable.

1. The extent of injustice to each of the parties from a decision one way or the other

1. Counsel for the father argued that his liability for child support should have been calculated under the Child Support Assessment Act and that that would have given rise to far less a debt than that accrued under the orders of Rimmer FM, because the father has been in receipt of a disability pension throughout and the nominal payment of some $5 a week would have been the assessment.  Counsel for the mother argued that there was evidence that the father had income beyond the pension and therefore he might well have been assessed at greater than minimum payment.

2. As earlier seen, one of the children is already over the age of 18 years and the other will turn 18 in February 2007, which is in a couple of months time.  If child support ought to have been under the Child Support Assessment Act the mother has now missed the opportunity to claim. 

Conclusions

•The father does not explain why he did not appear at the August 2001 hearing;

•The father’s explanation for delay in bringing this application is weak;

•He ought have argued the point of the proposed appeal in 2004, but did not;

•He did argue it, unsuccessfully, in 2006;

•There is clear, massive prejudice to the mother if the orders of 2001 are set aside.  Prejudice to the father is an unclear and contentious question;

•The father’s prospects on appeal are poor.  Before Rimmer FM the evidence about the date of separation may well have been clear and such that no issue arose;

At the highest, the father has an argument that Rimmer FM determined the date of separation to be 1990, but as Jarrett FM observed, contrary views that she did not are available, and as noted, the father has already lost that argument before Jarrett FM.

1. In my view, the justice of this case requires that the father’s application for an extension of time be dismissed.

I certify that the preceding thirty-eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:     

Date:              19 December 2006