CADOGAN & CHILD SUPPORT REGISTRAR
[2011] FamCAFC 75
•22 March 2011
FAMILY COURT OF AUSTRALIA
| CADOGAN & CHILD SUPPORT REGISTRAR | [2011] FamCAFC 75 |
| FAMILY LAW - APPEAL – Application to reinstate an appeal – Where the appeal was abandoned by the applicant’s failure to file the appeal books – Where the applicant paid moneys directly to the children’s mother – Where the applicant was said to be unaware of the objection process – Where it was established the applicant was informed of his rights to review the decision of the Child Support Registrar – Where the delay in filing an application for reinstatement of the appeal is not adequately explained – Where there is limited merit in the appeal – Where the applicant failed to provide any arguments demonstrating that the indulgence he seeks should be granted – Application dismissed. FAMILY LAW - COSTS – Where the application was brought about by the failure of the applicant to file the appeal books – Where the application for reinstatement was wholly unsuccessful – Where there has been unnecessary expense to the public purse – Where an order for costs is resisted by the applicant due to his financial circumstances – Applicant ordered to pay $1000 to the Child Support Registrar by way of costs. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 r 22.20(2); r 22.21 |
| Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175 Bemert & Swallow [2010] FamCAFC 100 Gallo & Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Cadogan |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 10301 | of | 2009 |
| APPEAL NUMBER: | NA | 46 | of | 2010 |
| DATE DELIVERED: | 22 March 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 22 March 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 29 January 2011 |
| LOWER COURT MNC: | [2010] FMCAfam 406 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Ms Brasch |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The application to reinstate an appeal be dismissed.
The applicant pay to the Child Support Registrar costs fixed in the sum of $1000.
IT IS NOTED that publication of this judgment under the pseudonym Cadogan & Child Support Registrar 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 46 of 2010
File Number: BRC 10301 of 2009
| Mr Cadogan |
Applicant
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 94AAA(3) of the Family Law Act 1975 (Cth) (“the Act”).
This is an application filed 28 February 2011 to reinstate an appeal.
On 29 January 2010 Federal Magistrate Slack made orders in relation to the enforcement of a child support assessment debt. It is from those orders the applicant wishes to appeal.
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 comprised $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.
Mr Cadogan was out of time in filing his notice of appeal. On 17 March 2010 he made an application for an extension of time.
On 29 April 2010 I made an order granting him leave to file a notice of appeal out of time against the orders of Federal Magistrate Slack.
The applicant filed his notice of appeal on 29 April 2010. A draft appeal index was subsequently filed on 27 May 2010.
On 14 July 2010 a procedural hearing was conducted by Registrar Spink. It was ordered by the Registrar that the applicant be responsible for the preparation of the appeal books and that he prepare the appeal books in accordance with the settled appeal index. Four copies of the appeal books, together with a certificate pursuant to Rule 22.20(2) of the Family Law Rules 2004, were to be filed on or before 4pm on Friday 20 August 2010.
Order 4 of the orders made by Registrar Spink provided:
That pursuant to Rule 22.21 the appeal will be taken to be abandoned if the appellant fails to file the appeal books by the due date.
The applicant did not file the appeal books by this date and consequently his appeal was taken to be abandoned on 20 August 2010.
The applicant did not file an application in an appeal until 28 February 2011 seeking that his appeal be reinstated. The application is opposed by the Child Support Registrar.
The application
In support of his application the applicant filed an accompanying affidavit.
In the affidavit it is explained that “[a]n extension of time is sort in which to complete Appeal books as [he was in the process of seeking public office]”. He said that he indicated that there was a possibility that this would interfere with the appeal at the meeting to discuss the content of the appeal books.
The applicant explains in addition to the preparation for his application for public office there was “business down turn, closure of leave and relocation of business”. These factors in combination are said to have contributed to the applicant having insufficient time to complete the appeal books. The applicant also states that due to financial pressure he did not have the funds to complete the appeal books, and that he was “overloaded” in preparation for other court proceedings.
The applicant also said in the affidavit that during the relocation of his business he had a tenant vacate premises which he self manages. This is said to have caused the applicant to make “a hurried trip to Victoria to inspect damage by the tenant to property and repair and relet”.
In his affidavit the applicant states that he has received advice and that the appeal books will be completed prior to this hearing. I am informed by the applicant that he has now prepared the appeal books, but is unable to obtain the transcript by reason of the cost.
In oral submissions, Mr Cadogan explained that he had paid moneys directly to his former wife for the children’s benefit pursuant to an agreement. Counsel for the Child Support Registrar provided a copy of the agreement (Exhibit 1). This document provides that the agreement commenced on 16 September 2004 and ended on 16 September 2005. It is not suggested that Mr Cadogan did not meet his obligations pursuant to that agreement.
The moneys outstanding for child support relate to periods before and after that agreement.
Exhibit 2 is a document from the child Support Agency dated 28 January 2010. This document, I am told, was before the Federal Magistrate when he heard these proceedings. It was prepared a day before the hearing. This document contains the calculations relied on by the Child Support Registrar that the sum owing was $16,526.81.
In any event, it is contended by Mr Cadogan that this sum does not properly take into account moneys paid directly to the children’s mother.
It is his contention that despite numerous dealings with the Child Support Agency and the receipt of various documents, some of which he tendered to the court, he did not know that he should file an objection.
After an adjournment of the hearing for the purpose of enquiring whether Mr Cadogan had properly been informed of his rights, counsel for the Child Support Registrar was able to tender a number of documents. Exhibit 4 is a notice of decision sent to Mr Cadogan, dated 8 September 2004, in the first paragraph this is said:
This letter serves to notify you of the outcome of your objection letter, dated 11 August 2004, expressing your concerns with the income figure for 2002/2003 of $43,302.00, used by Mrs [Cadogan] in your current assessment of child support.
Your objection to the income amount used has been made invalid.
Of some relevance to Mr Cadogan claims, it is said in the fifth paragraph:
In your letter of 11 August 2004, you mention private agreements for the distribution of costs relating to the property jointly owned with [Mrs Cadogan] and expenses relating to [F’s] attendance at [S College]. These considerations cannot be addressed under the objection process, however, the incomes of both parties, the re-payment of expenses incurred within the marriage and expenses relating to schooling can be addressed through the Change of Assessment process (COA). I have enclosed a brochure on this process.
Numerous other documents were then tendered by the Child Support Registrar, including Exhibit 5 which documents commence on 7 October 2004. In the document marked with a dark yellow tag, written to Mr Cadogan at his current address, this is said:
Dear [Mr Cadogan]
We are writing to let you know that a decision has been made on the application to change your assessment. We have enclosed details of the decision. We will send a copy of this decision to [Mrs Cadogan].
…
What you can do
If you do not agree with CSA’s decision, you have rights. Please refer to the enclosed brochure or visit CSA’s website at: for information on how to exercise your rights.
I am therefore satisfied that Mr Cadogan was treated in the same way as other citizens of Australia are apparently treated by the Child Support Agency. There was regular communication with him which is apparent from the large bundle of documents. He was informed of his rights.
Mr Cadogan wanted to draw my attention to a letter written to him on 12 December 2005, where reference was made to payment by him of school fees in the amount of $5,000. He thought that this document lent support to his argument, which is that the Child Support Agency did not properly credit his account. It is understandable that he may not immediately appreciate the fine working details of the Child Support Registrar. Ms Brasch, counsel for the Child Support Registrar, had satisfactory demonstrated to me, by reference to Exhibit 2, that that credit was given.
It is perhaps unfortunate that the documents in the affidavit of Ms Costigan, a solicitor, filed by leave on 9 December 2009, appeared to be as complicated as they were, these matters are quite technical. Great trouble was no doubt gone to by those who swore affidavits from the Child Support Registrar to ensure that every detail was included. It is perhaps understandable that Mr Cadogan had some difficulty appreciating what was said in some of those affidavits. As the Federal Magistrate observed it would have been much more helpful if Mr Cadogan himself had brought some documents to the hearing.
Submissions of the Child Support Registrar
The Child Support Registrar emphasised the delay in filing this application. It is submitted that the “application to extend time was not brought in the shadow of [Mr Cadogan seeking public office] in August 2010, but delayed until February 2011”.
It is also fairly noted by the Child Support Registrar that the applicant did not apply for an extension of time to file the appeal books prior to the appeal being deemed abandoned.
It is submitted that the court should not exercise its discretion in the applicant’s favour as he does not assert that he was unaware of the time limits, but that he was “occupied with other things”.
It is submitted:
… The Applicant’s explanation for the delay to be an insufficent reason for enlarging time from five weeks provided to the Applicant under the July 2010 Order, to a period of 8 months, which would be required if this application were to succeed. (original emphasis)
Reference is also made to the merits of the appeal. With regard to the merits of a prospective appeal it is important to refer to the reasons of Federal Magistrate Slack:
6.In this matter, I have determined that I should proceed to determine the application. The position is that the respondent’s claims, with respect to the debt or the moneys that were paid with respect to child support even on his case, arise in 2006 and 2005. He puts no evidence before me of any action taken either via the Child Support Agency to object to the decision of the agency in relation to those particular amounts that were paid by him; nor, as I understand it, has there been any action or application brought in relation to the mother’s position, insofar as any agreement is concerned.
7.I should also indicate that no evidence has been filed by the respondent in relation to this particular issue today, notwithstanding that there has been an adjournment in this matter to enable him to do so.
8.In the circumstances, I am persuaded that the evidence of the certificate is the only real evidence that I have in relation to this matter. There is nothing of substance that contradicts the amount of the debt that is said to be owing.
9.Whilst it may be that there is a dispute between the respondent and the payee mother in relation to whether all of this debt ought be paid by way of child support, I am satisfied that the Child Support Registrar has, to the best of their ability, complied with the terms of the legislation in relation to the debt. The debt is now said to be owing to the Commonwealth. If the respondent has any claim with respect to the mother, then he may or may not be able to continue to pursue that claim.
10.In this matter I am persuaded, because there is no evidence to the contrary, that the certificate is prima facie evidence of the debt and that I should accept the amount of the debt owing. I also am not persuaded that, even though I may have a discretion to not enforce the entire debt, that I should exercise that discretion.
11.My reasons for that are, that although I accept that it appears on the face of the documents, and this seems to be accepted by the Agency, that moneys were paid by the respondent by way of child support direct to the mother, they were not credited against his liability.
12.Nevertheless, it seems to me that there has been plenty of opportunity for the respondent since 2005 to take some action in relation to that particular matter and there is no evidence of any action taken insofar as I am aware, to rectify the situation. In those circumstances, I am not persuaded that I should exercise my discretion.
The central submissions of the Child Support Registrar in this respect are those contained in their written submissions and are as follows:
7.The Applicant’s main contention with regards to the Appeal is that he has made some non-agency payments (“NAPS”) and these have not been credited to him at 100% ‘value’. However, failing the mutual intent of both the payee and payer that the NAPS be in lieu of child support, the relevant provisions of the Child Support (Registration & Collection) Act do not provide for 100% crediting of proscribed NAPS. This is more so when a payer is in arrears – as is the case here.
8.Pursuant to s.71(C) of the R&C Act, NAPS can be credited to a person’s child support liability. “Prescribed NAPS” is defined by Regulation 5D of the R&C Regulations 1988 and allows for school fees to be credited as NAPS. However, there is a maximum amount that can be credited. This amount is calculated on a percentage basis by reference to the amount of child support required to be paid that is 75% of the liabilities to be paid in order for 25% of the NAPS to be credited. However, from 1 July 2008 (by legislative change) the calculation percentage changed and from this date 70% of the liability is to be paid in order for 30% of the NAPS to be credited.
9.The Applicant maintains that 100% of the prescribed NAPS (in this case school fees) should be credited. The basis for his position appears to stem from a Child Support Agreement (which the Applicant has not put before the Court) that allows 100% of certain payments including school fees to be credited. However, the Agreement came to an end on 16 September 2005. As a result, failing mutual intent of both the payer and payee, any NAPS made after this date would need to be credited in accordance with the Child support (Registration & Collection) Act: Section 71C.
10.Simply put, the applicant’s contention for a 100% credit of NAPS is contrary to s.71C of the R&C Act. Accordingly, his contention in that regard must fail, and his Appeal devoid of merit.
Application of principles to this case
Pursuant to rule 22.44 of the Rules “[a] party may apply to have an appeal taken to be abandoned under this Chapter reinstated”. The rule does not provide any test or specify the matters to be considered in the exercise of discretion in determining whether to reinstate an appeal.
It is not necessary to restate the principles in relation to such applications at any length other than to refer to Bemert & Swallow [2010] FamCAFC 100, commencing at paragraph 113. In those reasons we referred to the well known passage from Gallo & Dawson (1990) 93 ALR 479 at 480 and Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175.
The matters to be considered in this case are the delay in bringing the application together with the merits of the appeal. In addition, I should have regard to whether or not a failure to reinstate will cause an injustice to the applicant and whether there is any prejudice likely to be suffered by the Child Support Registrar which may not be remedied by an order for costs should reinstatement be allowed.
Conclusion
The delay after August is not adequately explained. That factor on its own, in this case would not be decisive. The real difficulty is the absence of merit in the appeal as explained in the written submissions of the Child Support Registrar. If there is no merit it can hardly be said that there is a substantial injustice to the applicant, in not being able to pursue the appeal.
Even if it could be said that the appeal is not wholly devoid of merit, the delay occasioned by the hearing of an appeal, the imposition and cost to the other party to the appeal is of considerable significance.
Apart from asserting that there is no prejudice to the respondents should he be allowed to reinstate the appeal, Mr Cadogan has failed to provide any argument demonstrating that the indulgence he seeks should be granted.
Costs
At the end of these proceedings an application was made on behalf of the Child Support Registrar for costs.
It was submitted that I should be particularly moved to make such an order because, as the judgment records the origin of this application was because the applicant failed to file his appeal books on time. He has been wholly unsuccessful in his application, and of course, quite rightly, attention was drawn to the expense of the public purse, of not just this application, but in fact the whole of the litigation surrounding the appeal.
Modestly it is asked that the applicant pay the sum fixed at $2013.90.
Mr Cadogan resists an order for costs. He draws my attention to the fact that he is unemployed and he said, and I am inclined to accept, that he has a genuine belief, that he has not been credited for the $12,000 that he had paid to the mother. Perhaps, as a result of these proceedings today he is a little bit better informed.
In any event this has been an expensive, and as it has been proved, unnecessary exercise. All that can be said is that it has avoided the expense to the Child Support Registrar of the appeal itself.
However in my view, Mr Cadogan should make some contribution to the costs of the Child Support Registrar in resisting the appeal. I will order that he pay the sum of $1000 to Child Support Registrar by way of costs.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 22 March 2011.
Associate:
Date: 6 April 2011
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