Caffyn & Caffyn

Case [2021] FedCFamC1F 68

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Caffyn & Caffyn [2021] FedCFamC1F 68

File number(s): SYC 454 of 2021
PAC 3892 of 2015
Judgment of: HARPER J
Date of judgment: 22 September 2021
Catchwords:

 FAMILY LAW – CHILD SUPPORT – Application for departure – Where father seeks discharge of a final departure order – Where mother seeks enforcement of a departure order – In circumstances where both parties were self-represented – Where departure order was made by consent – Departure order for equal payment of private school fees expressed to be made under s 117 of the Child Support (Assessment) Act – Where there are two sets of proceedings – Where parties have engaged extensively with the Child Support Agency and their review processes –Where there is an outstanding appeal to the Administrative Appeals Tribunal – Court proceedings regarding child support assessments must be exception not the rule – Where it is not in the parties’ interests for the Court to consider making a departure order – Nature of a departure order for payment of school fees considered – Divisions 4 and 5 of the Child Support (Assessment) Act considered – Whether Court order was a departure order at all – Liability to pay school fees under Court order is separate to liability arising from an administrative assessment by the Child Support Agency – Father’s application dismissed – Order for enforcement made

FAMILY LAW – PARENTING – Application for variation of final parenting orders made by consent – In circumstances where both parties were self-represented – Where no submissions were made in respect of Rice & Asplund – Parenting issue not determined on an interim basis

FAMILY LAW – EVIDENCE – Evidence Act 1995 – Definition of an “Australian court” – Status of the Child Support Agency – Where the mother seeks to admit decisions of the Child Support Agency as evidence – Where the nature of the Child Support Agency is less adversarial – Where the Court may receive evidence of a public document – Definition of a “public document” – Definition of “an Australian proceeding” – Registrar of the Child Support Agency held to meet the definition of an Australian court – Assessments by the Registrar of the Child Support Agency held to meet the definition of a proceeding – Evidence admissible for a limited purpose.

Legislation:

Bankruptcy Act 1966 (Cth) s 81

Child Support (Assessment) Act 1989 ss 29, 66D, 79, 98H, 114(3), 116(1), 117, 124, 129, 141(1)

Child Support (Registration and Collection) Act 1988 ss 4, 10, 17, 17A, 18, 18A, 19, 23, 111B, 113, 113A, 117

Corporations Act 2001 (Cth) s 596B

Evidence Act1995 (Cth) ss 157, 91(1),

Family Law Act 1975 (Cth) s 69ZT(1), 69ZM, 80

Federal Circuit and Family Court of Australia Act2021 (Cth) s 37

Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act2021 (Cth) s 55

Family Law Rules 2004 (Cth)

Family Law Repeal Rules 2021, Schedule 1

Federal Circuit and Family…

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AGLC
Caffyn & Caffyn [2021] FedCFamC1F 68
Case
[2021] FedCFamC1F 68
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the parties were self-represented in a dispute involving child support and parenting arrangements. The father sought to discharge a final departure order regarding equal payment of private school fees, while the mother sought enforcement of the same order. The case also involved claims for variation of final consent parenting orders. The father and mother had engaged extensively with the Child Support Agency and its review processes, and there was an outstanding appeal to the Administrative Appeals Tribunal.

The court had to decide whether to grant the father's application for discharge of the departure order, considering the nature of such orders and the statutory framework under the Child Support (Assessment) Act. The court also had to determine the admissibility of evidence from the Child Support Agency and assess the claims for variation of parenting orders. The court found that the departure order was not appropriately discharged as it was not in the parties’ interests for the court to intervene, and the nature of the order was considered. The court also ruled that evidence from the Child Support Agency was admissible for a limited purpose.

The court dismissed the father's application to discharge the departure order and ordered enforcement of the order, directing that the father pay the amount owed to the mother. The court referred the matter to a Senior Judicial Registrar or Judicial Registrar to determine the payment schedule. The claims for variation of parenting orders were dismissed. The balance of the proceedings was listed before the appropriate Registrar for further case management.

The court made orders to dispense with certain rules, declare the amount owed by the father, set a payment schedule, and dismiss specific claims. The form of the order is subject to review and variation as necessary.

Orders

Orders of the court

SYC 454 of 2021

PAC 3892 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR CAFFYN

Applicant

AND:

MS CAFFYN

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

22 SEPTEMBER 2021

THE COURT ORDERS THAT:

1. The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) be dispensed with to the extent necessary to enable the operation of these orders.

2. Pursuant to r 11.07(a), it is declared that the father owes the Respondent Mother (“the mother”) the amount of $28,016, pursuant to Order 18 made on 24 April 2018 in proceedings PAC3892/2015.

3. Pursuant to r 11.07(b), the total amount owing, declared in Order 3, must be paid to the mother.

4. The matter be referred to a Senior Judicial Registrar or Judicial Registrar to determine, pursuant to Part 11.1 of the Rules, the issues of the time by which the father shall make payment of the amount declared to be owing in Order 3, and whether such payment shall be made by instalments.

5. The Application in a Case filed by the mother on 5 May 2021 be otherwise dismissed.

6. In respect of the specific claims for relief made by the father in his Amended Initiating Application filed on 21 June 2021 in proceedings SYC454/2021, specifically final Order 1 in respect of Order 18 dated 24 April 2018 in proceedings PAC3892/2015, and final Order 6:

(a) pursuant to rr 1.06 and 10.10 such claims be determined as separate issues; and

(b) pursuant to r 10.11, such claims be dismissed.

7. The balance of proceedings SYC454/2021 be listed before the appropriate Registrar for further Case Management, in accordance with the Rules and the Central Practice Direction.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

In the context of the extant Court applications, it is then necessary to record some of the history of the parties’ engagement with the administrative processes of the Agency, and associated review procedures undertaken after April 2018. Deciphering in full the details of exactly what took place is not easy on the basis of the evidence provided. Evidence relied upon From what I could gather, the father relied on the following documents(1)Amended Initiating Application filed 21 June 2021;(2)Affidavit filed 13 July 2021; and(3)Amended Financial Statement filed 16 February 2021. The mother relied on the following documents:(1)Application in a Case filed 5 May 2021;(2)Sworn Evidence Annexures in the Affidavit of Ms Caffyn filed 5 May 2021;(3)Affidavit filed 12 July 2021;(4)Affidavit filed 21 July 2021;(5)Financial Statement filed 12 July 2021; and(6)School Fees Paid by Ms Caffyn to C School and B School. Neither party provided a Case Outline.Evidentiary issues I will read the evidence in each proceeding as evidence in the other proceedings. However, there are a number of evidentiary issues that require specific discussion. Section 69ZT(1) in Division 12A of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that numerous parts of the Evidence Act1995 (Cth) (“the Evidence Act”) do not apply to child related proceedings. Section 69ZM provides that proceedings are “child related proceedings” to the extent they are brought under Part VII of the Family Law Act. The father’s claims to vary the final consent parenting orders of April 2018, apart from Order 18, are child related proceedings. If proceedings partly include claims to relief which are not brought under Part VII, that part of the proceedings is not governed by Division 12A and the Evidence Act provisions apply in full, unless the parties consent to Division 12A applying to the whole proceedings. There is no such consent here. The competing claims for enforcement or discharge of Order 18 are not brought under Part VII of the Family Law Act. Consequently, the Evidence Act provisions apply in full. The mother annexed to her evidence a number of notices of assessment and decisions of the Agency, or more accurately, delegates of the Registrar. These raise some complex issues about their status as evidence. It is necessary for me to express a view about their admissibility and what they actually prove for the purposes of this judgment. As self-represented litigants, the parties of course made no submissions about these questions. Under the Evidence Act, it seems to me that the Registrar meets paragraph (e) of the definition of an “Australian Court” in the Dictionary to that Act, being “a person or body authorised by an Australian law, or by consent of the parties, to hear, receive and examine evidence”. The Child Support Registrar is established by s 10 of the Collection Act. Section 29 of the Assessment Act empowers the Registrar to make decisions on the basis of documentary material supplied by the parties. Parties can also make submissions orally to the Registrar or delegated decision makers. The Registrar thus appears to be a person authorised by the Assessment Act to hear, receive, and examine evidence.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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