Calafiore and Netia
[2019] FamCAFC 132
•2 August 2019
FAMILY COURT OF AUSTRALIA
| CALAFIORE & NETIA | [2019] FamCAFC 132 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – Where the father seeks leave to appeal from a declaration made pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) – Where the mother, after the child’s birth, made an application to the Child Support Agency for an assessment for the father to pay child support – Where the father did not believe he was the father and no assessment was made – Where the mother took no further action for over four years – Where the father consented to a paternity test which confirmed his paternity – Where the mother sought a declaration that the father pay child support from the child’s birth – Where the trial judge found such a determination was to be made by the Child Support Agency – Where the central question on this appeal is whether the trial judge misapprehended the effect of the making of a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) – Where the trial judge’s conclusion that it would be a matter for the Child Support Agency to determine the date upon which the assessment would commence was an error of law – Where the trial judge failed to consider adequately the question of an extension of time for the mother’s application –– Where the trial judge failed to consider a relevant consideration, namely, that if the s 106A application was dismissed it would remain open to the mother to apply to for an administrative assessment of child support supported by an unchallenged declaration of paternity – Where the requirements for a grant of leave to appeal are satisfied – Appeal allowed – Where there is no order as to costs. |
| Child Support (Assessment) Act 1989 (Cth) Pt. 7 Div 3, ss 7A, 29, 30, 31, 33, 98B, 106A Family Law Regulations 1984 (Cth), reg. 15A |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 Calafiore & Netia [2018] FamCAFC 220 CDJ v VAJ (1998) 197 CLR 172; [1998] HCA76 Jess & Jess (2014) FLC 93-620; [2014] FamCAFC 227 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68 |
| APPELLANT: | Mr Calafiore |
| RESPONDENT: | Ms Netia |
| FILE NUMBER: | BRC | 9596 | of | 2017 |
| APPEAL NUMBER: | NOA | 77 | of | 2018 |
| DATE DELIVERED: | 2 August 2019 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent, Tree & Hogan JJ |
| HEARING DATE: | 2 August 2019 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3430 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE RESPONDENT: | In person |
Orders
The appellant have leave to appeal from the declaration made in these proceedings in the Federal Circuit Court of Australia on 13 December 2017.
The respondent’s Application in an Appeal filed on 17 July 2019 be dismissed.
The appeal be allowed and the subject declaration be set aside.
The proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the trial judge.
There be no order as to costs of the appeal.
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 Calafiore & Netia 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 FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 77 of 2018
File Number: BRC 9596 of 2017
| Mr Calafiore |
Appellant
And
| Ms Netia |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
KENT J
This is an appeal from a declaration made by a trial judge in the Federal Circuit Court of Australia (“the FCC”) on 13 December 2017 in the following terms:
1.UPON THE COURT BEING SATISFIED that the respondent is a parent of the subject child IT IS DECLARED under section 106A of the Child Support (Assessment) Act 1989 that [MS NETIA] is entitled to an administrative assessment of child support for [K] born [April 2013] payable by [MR CALAFIORE].
The central question on this appeal is whether the trial judge misapprehended the effect of the making of such a declaration such that her Honour’s discretion in determining to make that declaration miscarried.
As these reasons seek to demonstrate, that question must be answered in the affirmative, with the consequence that the appeal must be allowed, the subject declaration set aside and the proceedings remitted to be reheard in the FCC by a judge other than the trial judge.
Background
The subject declaration was made against the following background.
The parties’ relationship commenced in or around January 2010. Ms Netia (“the mother”) fell pregnant in August 2012, informed Mr Calafiore (“the father”) in September 2012 and the father terminated the relationship in October 2012. [K] (“the child”) was born in April 2013. The father was not recorded on the Birth Certificate. On 2 May 2013, the mother made an application to the Child Support Agency (“CSA”) for an assessment to be paid child support by the father. The father informed the CSA that he was not the father and so the CSA refused the mother’s application.
The mother took no further action for more than four years, until 12 September 2017 when she filed an Application in the FCC seeking a declaration of paternity, an order that child support be payable from the child’s birth and a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (“the CSAA”). Section 106A of the CSAA provides:
Declaration that a person should be assessed in respect of the costs of the child
(1) This section applies if:
(a) the Registrar refuses to accept from an applicant an application for administrative assessment of child support for a child under subsection 30(2); and
(b) one of the reasons for the Registrar so refusing was that the Registrar was not satisfied under section 29 that a person who was to be assessed in respect of the costs of the child is a parent of the child.
Applications for declarations
(2) An application may be made to a court having jurisdiction under this Act for a declaration that:
(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--a person should be assessed in respect of the costs of the child because the person is a parent of the child; and
(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because a person who was to be assessed in respect of the costs of the child is a parent of the child.
(3) The application must be made within:
(a) the time prescribed by the applicable Rules of Court; or
(b) such further time as is allowed under the applicable Rules of Court.
...
Declarations
(5) The court may grant the declaration if the court is satisfied that:
(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the person should be assessed in respect of the costs of the child because the person is a parent of the child; or
(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar should reconsider the application under Division 2 of Part 4 because the person who was to be assessed in respect of the costs of the child is a parent of the child.
(6) If the court grants the declaration:
(a) if the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing to accept the application--the Registrar is taken to have accepted the application for administrative assessment of child support; and
(b) if the reason referred to in paragraph (1)(b) was one of the reasons for the Registrar refusing to accept the application--the Registrar must reconsider the application under Division 2 of Part 4.
Rule 25A.06 of the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) mandates that an application pursuant to s 106A must be brought within 56 days of a refusal by the CSA to assess child support.
The father agreed to undertake a paternity test on the first return date on 18 October 2017. The trial judge made orders for same on that day. On the next occasion, 13 December 2017, the trial judge was informed that the paternity test confirmed the father’s paternity. The father did not dispute that he is liable to pay child support (Transcript 13 December 2017, p.3 line 33) but disputed the “backdating” of his liability. Essentially, though the father did not word his dispute in this manner, the father objected to the trial judge extending time pursuant to r 3.05 of the FCC Rules to enable the mother to proceed with her s 106A application.
The trial judge gave an ex tempore judgment on 13 December 2017 and made the declaration as sought by the mother with regard to paternity and the s 106A declaration, but her Honour declined to make the order that child support be payable from the child’s birth as her Honour considered it to be the CSA’s decision as to when the father pays child support from.
On 15 November 2018, Murphy J granted the father’s application for an extension of time to appeal from the subject determination. Within his Honour’s reasons for judgment, he noted that the trial judge omitted an order which granted the mother an extension of time with respect to her application, but observed it was obvious from her Honour’s reasons that she intended to make such an order. As such, Murphy J premised his orders on the parties seeking an amended order pursuant to the “slip rule” from the trial judge. His Honour ordered that:
(2)The father file his Notice of Appeal, including any Amended Notice of Appeal which in turn seeks leave to appeal, within twenty-one (21) days from the date upon which the order by Judge Spelleken, amended pursuant to the slip rule, issues from her Honour.
However, as is clear from the filing date, the father did not wait for an amended order to issue from the trial judge and filed his Notice of Appeal on the same day as Murphy J made the orders granting his extension. Subsequently, on 3 December 2018, the trial judge amended the orders her Honour made on 18 October 2017, pursuant to r 16.05(2)(e) of the FCC Rules, to include an order that the mother be granted an extension of time to file her application.
However, that amendment was erroneous and on 29 July 2019, her Honour removed the amendment from the October 2017 orders and amended the 13 December 2017 orders, as stated by Murphy J. This amendment is supported by the fact that, in her Honour’s ex tempore reasons and the orders her Honour subsequently made on 13 December 2017, her Honour clearly intended to grant such an extension.
Leave to Appeal
Given the granting of an extension of time to file an application is an interlocutory order and, in this case, is not in relation to a child welfare matter, the father requires leave to appeal (Family Law Act1975 (Cth) (“the Act”), s 94AA; Family Law Regulations 1984 (Cth), reg. 15A).
Whilst the discretion to grant leave is expressed in unfettered terms, the usual test applicable in most cases is whether it appears an error has been made and is productive of substantial injustice (see, Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Rutherford and Rutherford (1991) FLC 92-255; Jess & Jess (2014) FLC 93-620) and Medlow & Medlow (2016) FLC 93-692).
Application in an Appeal – adduce further evidence
On 17 July 2019, the mother filed an Application in an Appeal to adduce further evidence. I note that r 22.39 of the Family Law Rules 2004 (Cth) (“the Rules”) requires an application such as this to be filed at least 14 days prior to the commencement of the sittings in which the appeal is listed for hearing. Here, the sittings commenced on 29 July 2019 meaning the mother has filed her application out of time. As such, the mother requires leave pursuant to r 1.14 of the Rules to extend time to file her application to adduce further evidence. I note the mother does not seek such an order in her application.
In any event, the mother’s affidavit filed in support of the application on 17 July 2019 annexes three documents which the mother states show the father is a “man of means”. They are:
a)An email received by the mother on 10 October 2018 from the Department of Human Services to the father;
b)A screenshot purporting to show the latest outstanding debt owing to the mother in the amount of $12,250.86; and
c)A letter from a real estate agent dated 9 July 2019 stating that the value of the property at P Street, Suburb L is $850,000 - $900,000.
It is unclear how the mother contends any of those documents show that the father is a “man of means”.
The law relevant to an application to adduce further evidence on appeal pursuant to s 93A(2) of the Act is well known (CDJ v VAJ (1998) 197 CLR 172 per McHugh, Gummow and Callinan JJ). I note that the email sought to be adduced was received by the mother two months before the relevant orders under appeal were made.
I am not satisfied that the further evidence sought to be adduced bears any relevance to the central question of error to be considered on this appeal as earlier identified. The mother’s application ought be dismissed.
Grounds of appeal
The father’s Notice of Appeal filed on 15 November 2018 is perhaps more accurately described as submissions, however, it appears the father’s sole ground of appeal is:
a)The trial judge erred in the exercise of her Honour’s discretion and erred at law when granting the mother an extension of time to file her s 106A application.
Overview of the Child Support legislation
Upon an applicant filing a proper assessment application and that application being accepted pursuant to s 30 of the CSAA, the registrar is required to either inform the applicant of the success (s 31) or otherwise (s 33) of that application as soon as possible. If successful, an assessment is to be conducted for the days in the “child support period”.
Relevantly, the beginning of the day on which an assessment application is made is the commencement of the “child support period” under s 7A.
Following the making of an assessment application, if the registrar refuses the application on the grounds that the registrar “was not satisfied under section 29 that a person who was to be assessed … is a parent of the child”, the applicant may apply to the Court under s 106A of the CSAA seeking a declaration that the “person should be assessed in respect of the cost of the child because the person is a parent”.
Then, as occurred here, if the Court grants that declaration, s 106A(6)(a) provides:
(a)If the reason referred to in paragraph (1)(b) was the only reason for the Registrar refusing the application – the Registrar is taken to have accepted the application for administrative assessment of child support
(Emphasis added)
It follows, then, that the declaration granted by the trial judge on 13 December 2017 operated retrospectively, pursuant to s 106A, to render the father liable for child support from the commencement of the “child support period” being the day the mother made her application on 2 May 2013.
Further, the avenue open for a person who wishes to object to such a declaration, other than an appeal, is to seek a departure order pursuant to s 98B. However, given the child support period for which the father would seek a departure order is more than 18 months old, Division 3 of Part 7 of the CSAA precludes the making of such a departure order without leave of the Court.
Ground 1 – Granting the extension of time
With respect to the granting of an extension of time, the trial judge said this:
4.The matter is back today, pursuant to my order, and the respondent has raised with me, again, a concern that the child support assessment or the assessment for him to pay child support might be backdated to when the original application for child support was made by the applicant. I note paragraph 2 of the final orders sought by the applicant is that the Court stipulate child support provision for [K] by the respondent is to be backdated in accordance with the original child support application made on 21 April 2013, [post-birth], under section 106A of the Act.
5.Again, concerned that the court would make that order, the respondent relies on rule 25A.06 of the Federal Circuit Court Rules 2001 which state that:
A person must file an application for a declaration under subsection 106A(2) …
which is this application –
… within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.
6.The applicant would have been provided with that notice somewhere around the time she made the application for the assessment which, as I said before, was [post-birth], so some time around April/May, maybe even June 2013, but clearly outside the 56 day time limit for making the application for a declaration.
7.I am not critical at all of the respondent in this regard, but it seems we may have been at cross-purposes, because it is the respondent’s case firstly that he accepts, he is the child’s biological father. He accepts he is a person liable to pay child support for the child. He does not oppose the declaration being made pursuant to section 106A of the Act. He does not press me to make a finding that the applicant is out of time to make the application and, in any event, if I was pressed to do so, I would give leave to extend the time given the circumstances of this matter, where it is clear that the respondent is the child’s father.
8.It is clear that they were in a relationship at the time of the conception of the child. It is clear on the respondent’s own case that the Child Support Agency contacted the respondent asking him to sign the birth certificate for the child. There was no agreement with regard to the parentage of the child or whether he was liable to pay child support at the time. There is an issue as to whether he was asked to agree to testing within the time limit, but that is probably not particularly relevant. The applicant tells me that she was, for various reasons, unable to make an application prior to 2017. There would be no prejudice, in my view, to the respondent to make the declaration, and there would certainly be some prejudice to the applicant, but more importantly the child, if I fail to make the declaration today.
(Emphasis added)
The law relating to extensions of time
Rule 3.05 of the FCC Rules permits a judge to extend time which is otherwise fixed by those FCC Rules. That discretion appears to be unfettered.
The principles surrounding an extension of time pursuant to r 3.05 were comprehensively discussed by Murphy J in his reasons for granting the father an extension of time to appeal (Calafiore & Netia [2018] FamCAFC 220). There, his Honour said:
61.The exercise of discretion pursuant to r 3.05 appears to be unfettered [Deputy Commissioner of Taxation v Jaskola [2011] FMCA 67 at [18]; Sims v RM Capital Pty Ltd (No 2) [2015] FCCA 149 at [4]-[12]].However, Wilcox J in Hunter Valley Developments Pty Ltd v Cohen [(1984) 3 FCR 344 at 348 – 349] set out a number of “principles to guide, not in any exhaustive manner, the exercise of the court’s discretion”. In summary, they include the following:
·“Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper to do so”;
·The applicant for extension should “show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time”;
·“Action taken by the applicant … is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished”;
·“Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension”;
·“The mere absence of prejudice is not enough to justify the grant of an extension”;
·“The merits of the substantial application”; and
·“Considerations of fairness as between the applications and other persons otherwise in a like position are relevant”.
The first matter which presents itself is the explanation of the significant delay in the mother bringing her s 106A application. As the father points out in his material, and indeed pointed out to the trial judge on several occasions, the mother’s application was due to be filed by 27 June 2013. She filed it on 12 September 2017; four years and two months late.
The trial judge’s only reference to an explanation for that delay is that the mother had “various reasons” for same at [8]. The trial judge does not elucidate on that comment. In the transcript before her Honour on 13 December 2017, there is a little more detail; the mother said (Transcript 13 December 2017, p.5 lines 35-38):
[MS NETIA]: I’ve had some special health problems and, also, I sought legal advice through agencies [in F City] that I could not get any because the respondent had already been to all of those agencies, and I couldn’t get any advice. And I was also working full-time with a baby.
That is the entirety of the mother’s explanation for delay as recorded by the trial judge. No further evidence or explanation is available in her affidavit material. Beyond the mother’s “various reasons”, her Honour’s reasons, though not expressly dealing with an extension of time, indicate that her Honour considered the following factors to be in support of such an extension:
1. There would be no prejudice to the father (reasons at [8]);
2.The CSA asked the father to sign the child’s birth certificate (reasons at [8]);
3.The parties were in a relationship at the time the child was conceived (reasons at [8]), albeit the mother deposes to serious difficulty in falling pregnant; and
4.There would be prejudice to the mother and, by extension, the child if such a declaration was not made (reasons at [8]).
It will be a matter for a trial judge rehearing the proceedings to consider the discretionary factor of explanation for delay. All I would observe is that the reasons of the trial judge do not appear to me to establish that the trial judge adequately engaged with this consideration.
Errors of law
A fundamental problem evident in the trial judge’s reasons is her Honour’s interpretation of the relevant legislative framework as identified above.
The following passage of transcript from 13 December 2017 is relevant (Transcript 13 December 2017, p.4 line 25 to p.5 line 2):
HER HONOUR: That would include did you have any knowledge of the type of application you would need to file; did you make any contact with the respondent to see if you could get an agreement about that for him to sign the birth certificate; the prejudice to you in not making the declaration; the prejudice to the respondent by making the declaration. So you would file an affidavit about all that. I would consider that affidavit and either extend the time or not extend the time. All right?
So we’re kind of at an impasse. You’re quite prepared, quite rightly so, for me to make the declaration, but you’re concerned about it being backdated. All right. But the other thing is – about all of that, [Ms Netia], is that it’s still a matter for the child support agency as to whether or not they backdate it.
[MS NETIA]: Yes.
HER HONOUR: Now, you will, no doubt, very well argue, [Mr Netia], that – sorry, [Mr Calafiore] that they shouldn’t backdate it because the first you knew about this or [Ms Netia] going to the child support agency was when you were served with this application, but it’s – but I don’t decide whether or not the child support agency backdates it because the section 106A of the Child Support Assessment Act basically just says if I make the declaration, if the court grants a declaration and the reason that the registrar rejected the application was because they couldn’t be satisfied the child– that you were a person who should pay child support, then the registrar is taken to have accepted the application for a ..... of child support. That doesn’t say that they backdate it to that date, and I would think that’s still a matter for the child support agency.
(Emphasis added)
Her Honour indicates, correctly, that she does not have the power to order when the father pays child support from. However, her Honour also states that it is a matter for the CSA as to when to assess the child support payable by the father. However, as is established above, the statutory framework is determinative of that issue; there is no discretion on the part of the CSA to do anything other than take the assessment application as granted from the date that it was made (here, that is 2 May 2013).
Indeed, her Honour’s misunderstanding of the legislative framework is evidenced in her ex tempore reasons where her Honour said:
10.It seems to me from a reading of that section that it is still a matter for the Child Support Agency as to when they make their assessment of child support and the date from which they make that assessment of child support. It would be a matter, in my view, for both the applicant to raise with the Child Support Agency and the respondent to raise with the Child Support Agency, both relying, no doubt, on what they have told me today and, in the respondent’s case, telling the Child Support Agency that whilst he may have been contacted by them and requests made for him to sign the birth certificate or accept that he was a person liable to pay child support back in April/May/June of 2013, there was no agreement at that time and it was not until this application for a declaration was made some years later that he was aware that this issue in relation to child support had, again, been raised by the applicant. He can tell the Child Support Agency, although it is still a matter for the Child Support Agency.
11.But I would have thought, in those circumstances, he would have a reasonable case that he could make to the Child Support Agency that the assessment of child support should be from the date that this order. But, again, that is a matter for the Child Support Agency. I am not making paragraph 2. I am only making the declaration. And then, obviously, you will send that off to the Child Support Agency and they will take it from there.
(Emphasis added)
The emphasised portion of [11] then gives rise to a further consideration which entails a balance of the prejudice to the mother and child as against any explanation for the delay in bringing the s 106A application. More specifically, it appears that her Honour was under the misapprehension that the failure to make the declaration would prevent the mother being paid child support at all. However, it was entirely open to the mother, if her Honour dismissed her application, to simply re-apply for an administrative assessment with concrete evidence that the father is the child’s father. The legislation would then provide for a “child support period” payable from the date of that application and the father would be assessed to pay that child support as he acknowledged was his responsibility.
Conclusion
The trial judge’s apparent misconceptions about the operation of s 106A of the CSAA led to a failure to consider a matter of central importance to the exercise of discretion; that is, the potential prejudice to either parent and to the child of the consequence of making, or not making, the declaration.
Her Honour’s conclusion to the effect that it would be a matter for the CSA to determine the date upon which the assessment would commence was an error of law.
It seems the trial judge failed to consider a relevant consideration, namely, that if the s 106A application was dismissed, it would remain open to the mother to apply to the CSA for an administrative assessment of child support supported by an unchallenged declaration of paternity.
I am satisfied that the requirements for a grant of leave to appeal are satisfied and the appeal ought be allowed. The subject declaration must be set aside and the proceedings remitted for rehearing.
Costs
As to the question of costs of these proceedings, each party is self-represented and both confirmed that they did not seek any order with respect to costs of this appeal whatever its outcome.
Orders
I would order:
1.The appellant have leave to appeal from the declaration made in these proceedings in the Federal Circuit Court of Australia on 13 December 2017.
2.The respondent’s Application in an Appeal filed on 17 July 2019 be dismissed.
3.The appeal be allowed and the subject declaration be set aside.
4.The proceedings be remitted for rehearing in the Federal Circuit Court of Australia by a judge other than the trial judge.
5.There be no order as to costs of the appeal.
TREE J
I agree with the proposed orders and reasons of Kent J.
HOGAN J
I agree with the reasons delivered by Kent J and with the orders his Honour proposes.
I certify that the preceding forty-six (46) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Kent, Tree & Hogan JJ) delivered on 2 August 2019, edited to correct grammatical errors and some infelicity of expression.
Associate:
Date: 6 August 2019
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