Cadogan and Child Support Registrar (No 2)
[2011] FamCAFC 188
•14 September 2011
FAMILY COURT OF AUSTRALIA
| CADOGAN & CHILD SUPPORT REGISTRAR (NO 2) | [2011] FamCAFC 188 |
| FAMILY LAW – APPEAL – Application for leave to appeal – Where the Federal Magistrate ordered that all outstanding applications be dismissed – Where there was no application that remained unheard prior to the order appealed being made – Where there are no proper grounds of appeal – Application dismissed – Appeal dismissed. FAMILY LAW – COSTS – Where there are no circumstances justifying an order for costs – No order as to costs. |
| Child Support (Regulation and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) |
| APPELLANT: | Mr Cadogan |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 10301 | of | 2009 |
| APPEAL NUMBER: | NA | 49 | of | 2011 |
| DATE DELIVERED: | 14 September 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 14 September 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 25 May 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Dr Brasch |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The application for leave to appeal is dismissed.
The appeal NA 49 of 2011 is dismissed.
No order as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Cadogan & Child Support Registrar (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICATION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 49 of 2011
File Number: BRC 10301 of 2009
| Mr Cadogan |
Appellant
And
| Child Support Registrar |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
This appeal was heard by me as a single Judge by direction of the Chief Justice pursuant to s 107A(2) of the Child Support (Regulation and Collection) Act 1988 (Cth).
On 22 June 2011 Mr Cadogan filed a notice of appeal against the orders made by Federal Magistrate Jarrett on 25 May 2011. The only order made by the Federal Magistrate on that day provided that “[a]ll outstanding applications be dismissed.”
At the time that order was made there were no applications before the court by either party. The only provision allowing further mention of the matter was contained in order 19 of the orders made 29 January 2010 by Federal Magistrate Slack. That order provided as follows:
19.That both the Applicant and the Respondent be at liberty to apply herein with respect to the terms and conditions and execution of the sale and the implementation of these orders generally.
The grounds of appeal and basis for leave to appeal, as articulated by the applicant in summary appear to be:
1. His Honour erred on 25 May 2011 by ordering and dismissing all Applications without a review of previous orders by FM Slack.
2. Federal Magistrate erred by not including payments, including school fees and medical bills for the appellant’s children.
3. The Magistrate failed in his duty to include payments that previously were being credited to the CSA and the Magistrate herd (sic) both the original claim and the enforcement hearings.
4. A denial of procedural fairness.
The appellant seeks that the order made dismissing all outstanding applications be set aside. Costs are also sought against the Child Support Registrar.
It is to be noted at the outset that the appellant requires leave to appeal pursuant to s 107A of the Child Support (Registration and Collection) Act 1989 (Cth). The Child Support Registrar neither opposes nor consents to leave being granted.
To determine the question of leave it is necessary to examine the merits of the appeal.
Background
A useful summary of the background to these proceedings has been provided in the written submissions of the Child Support Registrar:
8.The Child Support Registrar commenced proceedings in the Federal Magistrates Court, Brisbane Registry seeking the recovery of child support arrears and late payment penalties together with costs. The matter came before the Court on 9 December 2009 but was adjourned to 29 January 2010. On that date, Slack FM ordered:
In summary, the orders of the Federal Magistrate provided that the applicant pay the sum of $23,336.55 to the Child Support Registrar on or before 1 March 2010. The sum compromised $16,526.61 arrears of child support, $4,269.44 late payment penalties, together with costs of $2,540.50. In default the applicant’s property in Victoria was to be sold to satisfy the debt. The Official Receiver for the Bankruptcy District of the State of Queensland was appointed statutory trustee. In addition, a Warrant for the Seizure and Sale of Personal Property was issued, to lie in the Registry, pending notification of default. In particular, it was ordered that the Marshal may seize and realise two motor cycles.
9.The [appellant] appealed those enforcement orders. His appeal was out of time, but he was appropriately granted leave to appeal out of time. However, the [appellant] did not take the steps required of him and the appeal was taken to be abandoned on 20 August 2010. The [appellant] did not file an application in an appeal until 28 February 2011 seeking that his appeal be reinstated.
10.The application to reinstate the appeal was dismissed by May J on 22 March 2011, with much of that hearing (as is evident from May J’s reasons) concerning the [appellant’s] contentions re NAPs.
11.Consequently, the Child Support Registrar continued with the enforcement of the orders made in the Federal Magistrates Court in January 2010.
12.At the request of the Respondent Registrar pursuant to Order 19 (liberty to apply) of the enforcement orders of 29 January 2010, the matter was re-listed on 7 February 2011 and ultimately on 11 March 2011 the Court ordered that [the appellant] provide the Child Support Registrar and the Australian Government Solicitor written notice of the precise location of an … Motorcycle.
13.Pursuant to the “liberty to apply” order with respect to enforcement, the Respondent Registrar moved the Court to mention the matter again on 8 April 2011 and again on 5 May 2011.
14.The matter was then adjourned until 25 May 2011. It was on that day that the Respondent sought that all outstanding matters be dismissed.
(footnotes omitted)
It can be seen that on 25 May 2011 the appellant had no applications before the court, all previous applications having been finally disposed of by orders.
The proceedings before the Federal Magistrate
There were proceedings heard on various dates for enforcement of the orders made by Federal Magistrate Slack. The matter was adjourned to 25 May 2011 and was listed for hearing before Federal Magistrate Jarrett.
The proceedings before his Honour, according to the transcript, lasted for three minutes. During this time the Federal Magistrate gave his reasons for judgment. The reasons have not otherwise been provided in writing.
The transcript of the proceedings before the Federal Magistrate on 25 May 2011 reveals:
…
MR ZEILINGA: Your Honour, I would be seeking that this matter be removed from the active pending list. Your Honour, just by a very brief history, and perhaps if I hand your Honour a chronology, which may assist your Honour.
HIS HONOUR: We don’t have an active pending list. You’re either in, or you’re out.
MR ZEILINGA: Well, we want to be out, your Honour. I can – what’s actually happened was there’s been an enforcement summons filed, final orders have been made, there’s – in the interim there’s been an appeal which was deemed abandoned, an application for reinstatement was then dismissed in the Family Court, so the final orders which included the depuration as to the death, the usual orders, depuration as to death, the seizure and sale of real and personal property.
HIS HONOUR: Yes.
MR ZEILINGA: There was also, within the orders, a liberty to apply with regards to the implementation.
HIS HONOUR: Yes.
MR ZEILINGA: With regards to one of the items of personal property was an … motorcycle that couldn’t be located, and on that basis the matter was asked to be relisted.
HIS HONOUR: Yes.
MR ZEILINGA: At the last occasion before the court, there was some cross-examination, at the end of the day my client had to make some decisions as to which way they were going to go, and at the end of the day they’ve decided to look at an alternative, with regards to enforcing rather the personal properties and real property and on that basis I would be asking the matter to be removed from whatever list there is.
HIS HONOUR: So any outstanding applications be dismissed?
MR ZEILINGA: Yes, your Honour.
HIS HONOUR: Yes.
MR CADOGAN: Well, your Honour, all I really wanted to talk about is that I have done my tax returns, and I’ve – I’m planning to put a change of assessment, today, under special circumstances which - - -
HIS HONOUR: Why is that relevant to me?
MR CADOGAN: It will be relevant because it will go back 18 months.
HIS HONOUR: Why is that relevant to me?
MR CADOGAN: Because my taxable assessment under the CSA has been about 43,000.
HIS HONOUR: You have no applications before the court.
MR CADOGAN: I’ve got an affidavit that I sent in last week, your Honour.
HIS HONOUR: Affidavits aren’t applications. You don’t have any applications before the court?
MR CADOGAN: No, just an affidavit that shows these - - -
HIS HONOUR: No interested. All outstanding applications will be dismissed. Thank you. Good morning.
Appellant’s submissions
The written submissions on behalf of the appellant were filed on 9 September 2011, seven days out of time. In any event the appellant is permitted to rely upon them.
The written submissions refer to ground 2 where it is said that the Federal Magistrate denied the applicant procedural fairness, was biased against him, denied the applicant a hearing and that there is an error in the debt to the Child Support Registrar.
Apart from reference to well known principles and authority the written submissions are incomprehensible and fail to relate to the hearing before the Federal Magistrate or the orders made by him on 25 May 2011.
In oral submissions Mr Cadogan demonstrated that he was entirely confused about the proceedings. He made various complaints about the process including that it was improper for one Federal Magistrate to have heard the matter continuously and that it was then given to another Federal Magistrate.
In addition, Mr Cadogan complained that there should not have been further hearings until the appeal process was completed.
While not appreciating that there were no outstanding applications to be heard, Mr Cadogan was of the misguided view that Federal Magistrate Jarrett could have in some way reheard the previous proceedings.
Respondent’s submissions
In the written submissions filed on behalf of the Child Support Registrar it is submitted:
6. In short, the [father] seeks a ‘back door’ appeal of matters which have already been the subject of an unsuccessful application to re- instate the earlier Appeal before May J with respect to NAPs on 22 March 2011.
7. To put it differently, the gravamen of the [father’s] complaint is that without any kind of application before the Court, Jarrett FM ought have operated as a de facto appeal court from May J’s Full Court decision in May 2011 and a de facto appeal court from the earlier decision of Slack FM in January 2011.
These submissions correctly describe the attempt on the part of the appellant. There being no application before the court there were no matters for the Federal Magistrate to decide.
The order made by Federal Magistrate Slack on 29 January 2010 finally determined the applications. The application by Mr Cadogan to reinstate the appeal from those orders was dismissed on 22 March 2011. The reasons for that order explain the occasions when Mr Cadogan failed to comply with court orders and directions.
Discussion
Mr Cadogan was very critical of how the appeal has been managed by the Appeals Registrar.
In the orders made by Registrar Spink on 19 August 2011 following the directions hearing (attended by the appellant) it was noted:
1. That the appeal relates to orders made by Federal Magistrate Jarrett on 25 May 2011.
2. That on 5 May 2011 Federal Magistrate Slack dismissed the appellant’s application for a stay filed by leave on 5 May 2011 and ordered that any further applications by the parties be filed and served on or before 18 May 2011.
3. No further applications were filed.
4. At the procedural hearing today, the appellant was not able to identify any application made by him that was dismissed pursuant to the orders made by Federal Magistrate Jarrett on 25 May 2011.
…
It is apparent from the oral submissions made by Mr Cadogan that he remains unable to identify any application made by him wrongly dismissed by the Federal Magistrate.
Conclusion
In view of the absence of any application remaining unheard, as Mr Cadogan’s application that his appeal be reinstated was dismissed and as there are no proper grounds of appeal, leave should not be granted.
Costs
At the end of these proceedings submissions as to costs were heard.
Although the application and appeal were wholly unsuccessful there are not otherwise circumstances which would justify an order for costs in this matter.
I certify that the preceding twenty seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 14 September 2011.
Associate:
Date: 14 September 2011
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