Calafiore and Netia
[2018] FamCAFC 220
•15 November 2018
FAMILY COURT OF AUSTRALIA
| CALAFIORE & NETIA | [2018] FamCAFC 220 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Extension of time to file a Notice of Appeal – Where the primary judge made a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) that the father be assessed for child support – Where the Child Support Agency backdated the assessment to when the application for assessment was initially made by the mother – Where the father was assessed by the Child Support Agency as having to pay back a significant child support liability – Whether the primary judge erred in failing to make an order granting the mother an extension of time to file an application pursuant to s 106A – Whether the primary judge failed to consider the respective prejudice to each of the parties of extending time to file an application pursuant to s 106A – Where there was a substantial issue to be raised on appeal – Where there was an adequate explanation for delay – Application allowed. |
| Child Support (Assessment) Act 1989 (Cth) ss 7A, 30, 33, 34, 106A Family Law Act 1975 (Cth) Federal Circuit Court Rules 2001 (Cth) rr 3.05, 16.05, 25A.06 |
| Bant & Clayton [2014] FamCAFC 108 Deputy Commissioner of Taxation v Jaskola [2011] FMCA 67 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344; [1984] FCA 176 Joshua v Joshua (1997) FLC 92-767; [1997] FamCA 31 Sims v RM Capital Pty Ltd (No 2) [2015] FCCA 149 |
| APPLICANT: | Mr Calafiore |
| RESPONDENT: | Ms Netia |
| FILE NUMBER: | BRC | 9596 | of | 2017 |
| APPEAL NUMBER: | NOA | 77 | of | 2018 |
| DATE DELIVERED: | 15 November 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 15 November 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 December 2017 |
| LOWER COURT MNC: | [2017] FCCA 3430 |
REPRESENTATION
| FOR THE APPLICANT: | Unrepresented |
| FOR THE RESPONDENT: | Unrepresented |
Orders
The Application in an Appeal for extension of time filed by the father on 30 August 2018 be allowed.
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.
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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NOA 77 of 2018
File Number: BRC 9596 of 2017
| Mr Calafiore |
Applicant
And
| Ms Netia |
Respondent
EX TEMPORE REASONS FOR JUDGMENT[1]
[1] As was said would occur upon the oral delivery of these reasons, footnoted citations and references have been added to the settled reasons as have headings and sub-headings.
The father filed an application for extension of time so as to file a Notice of Appeal against orders made by Judge Spelleken on 13 December 2017. His draft Notice of Appeal is exhibited to an affidavit by him filed 30 August 2018.
Her Honour delivered reasons ex tempore. Despite that, the reasons were not published until September this year. I say that only to highlight the fact that that time frame forms part of the delay that must be explained by the father and to also highlight the fact that the parties (who represented themselves before her Honour and who represent themselves before me), used those reasons so as to engage in correspondence and discussions subsequently with the Child Support Agency. Those discussions have relevance to the application before me today.
The mother filed an application for final orders on 12 September 2017 seeking a declaration pursuant to s 106A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) for the father to be assessed for child support, and further, that the assessment be “backdated” to the date of the child’s birth. I will shortly refer to the use of the expression “backdated”, which has the potential to cause confusion.
Interim orders were also sought by the mother for DNA testing of the father. The DNA test was administered following a hearing before her Honour in October 2017. The results confirmed that the father was the biological father of the eligible child, K who was born in 2013. Paternity has not been in dispute since the results of that test were made known. As a consequence, the father accepts that he is a person liable to pay child support for K who is now about five years old.
The orders made by her Honour on 13 December 2017 are as follows:
(1) UPON THE COURT BEING SATISFIED that the [father] 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 … 2013 payable by [Mr Calafiore].
(2)Pursuant to section 69VA of the Family Law Act 1975 IT IS DECLARED that [Mr Calafiore] is the father of [K] born … 2013.
(3) All outstanding applications be dismissed.
The failure to order an extension of time
Section 106A(3)(a) provides that an application for a declaration “must be made within … the time prescribed by the applicable Rules of Court”.
Rule 25A.06 of the Federal Circuit Rules (“the Rules”) provides that:
A person must file an application for a declaration under subsection 106A(2) or 107(1) of the Assessment Act within 56 days of the service on the applicant of a notice given under section 33 or 34 of that Act.
Note 1:An appeal by a person under section 44AAA of the AAT Act from a decision of the Tribunal in a child support first review proceeding must be filed within 28 days after the person receives a written statement of reasons for the decision under section 95P of the Registration Act: see subsection 44(2A) of the AAT Act (as applied by paragraph 44AAA(2)(a) of that Act).
Note 2:The Court may extend or shorten the time fixed by this rule: see rule 3.05.
Order (1) could not be made unless her Honour first made an order extending time to allow the mother to make the s 106A application. Her Honour made no such order.
However, her Honour’s reasons make it abundantly clear that her Honour was aware of the relevant statutory provisions and the consequent need for an order to extend time as a precondition to the making of Order (1). The father accepts before me that is so as does the mother.
I sought to explain to each of the self-represented parties that, in those circumstances, the order could be cured by application of the “slip rule”.[2] Ultimately, I am well satisfied that each of the parties understood that the error could be so corrected. I will shortly refer to those parts of her Honour’ reasons that make it abundantly plain that her Honour intended such an order and that, as a consequence, it can be cured as a “slip”. Each indicated that they intended to communicate with her Honour with a view to having the relevant order included in the orders accordingly.[3]
[2] Federal Circuit Court Rules 2001 (Cth) r 16.05(2)(e) or (h).
[3] The Court can do so of its own motion: Federal Circuit Court Rules 2001 (Cth) r 16.05.
The circumstances leading to the current application
Since the making of the orders, the father deposes to having “received a child support account statement” stating he “owed $35,348.63 in child support for the period from 02 May 2013 – 31 January 2018”. It will be appreciated that the first of those dates is shortly after K was born and is the day when the mother first applied to the Child Support Agency for an assessment.
Before me today, the father gave evidence from the bar table, with which the mother agrees, to the effect that he has received an assessment in respect of periodic child support that takes account of the fact, among other things, that he has two children of a different relationship and, I gather, his financial and other circumstances more generally. As a consequence he pays, he tells me, a periodic sum in respect of K’s support of approximately $190 per fortnight.
He also tells me that an agreement has been reached with the Child Support Agency in respect of what was said to be the outstanding amount to which I have just referred, such that he is repaying that – inclusive of penalties and interest, I gather – in an amount of $650 per fortnight. As at 22 September 2018 the amount outstanding in respect of what can conveniently be called “arrears” is $25,744.29. The mother also agrees with each of those assertions.
The essence of the appeal sought to be brought by the father, if his application to extend time is granted, is that he is unable, due to his financial and other circumstances, to meet the $25,744.29, and that her Honour ought not to have made an order the effect of which was to accrue what I will call “arrears” of child support dating from when the mother first made an application in 2013.
Whilst, understandably enough, the father’s application and proposed appeal in that respect seeks to attack directly what he calls the “backdating” of his child support liability, as will emerge the position arising by reason of the Assessment Act is somewhat more complicated than that simple statement might indicate.
The father deposes that when he raised the issue of the “arrears” with the Child Support Agency, “[t]hey said that as far as they were concerned the court order allowed for the back dating of child support back to when the mother first applied in May 2013”.[4] A letter was drafted on the father’s behalf with assistance from Legal Aid Queensland requesting the agency to review their decision to “backdate” the child support.
[4] Father’s affidavit filed 30 August 2018 at paragraphs 5 – 6.
The father deposes to a telephone conversation with the agency to the effect that they had taken the declaration made by her Honour to represent the Court granting an “extension of time for the mother to file her application from when she made her original application, as no specific orders were made indicating otherwise”.[5]
[5] Father’s affidavit filed 30 August 2018 at paragraph 8.
The father says he cannot afford to pay the debt which requires monthly payments totalling approximately $650 per fortnight. He says doing so will cause him significant financial hardship.[6] The father deposes to Legal Aid Queensland sending an email on his behalf to the Child Support Agency on 22 March 2018 in relation to “what specific court orders they would accept to allow them to cancel the back dating of the child support”.[7]
[6] Father’s affidavit filed 30 August 2018 at paragraphs 10 – 11.
[7] Father’s affidavit filed 30 August 2018 at paragraph 13.
The father also deposes to not having received a reply to that correspondence. However, attached to an affidavit of the mother is a letter received from the Registrar addressed to the father dated 20 June 2018. That letter contains the following relevant “observations” concerning an application filed by the father on 10 April 2018 in the Federal Circuit Court of Australia:
·“The Registrar is of the view that the Court does not have power to elect the date from which a declaration under that section is made.”
·“[I]t is apparent the Court intended to: Declare the parentage of the child in question; and [d]eclare that the mother was entitled to an administrative assessment of child support from the father.”
·“As a judgment was entered by Her Honour Judge Spelleken, it can be accepted that the Court extended the time for the filing of the section 106A application.”
It will be appreciated that the last of those matters is the matter which I raised with each of the parties this morning. I repeat that it seems to me abundantly clear that her Honour did intend to extend the time for the filing of the s 106A application by the mother and its omission from the orders was a slip.
The court record shows that there are now pending proceedings in the Federal Circuit Court:
a)the father filed an application on 10 April 2018 seeking, among other things, an amendment to Order (1) of her Honour’s orders to the effect that the child support is not backdated; and
b)the mother filed an application for enforcement of the whole child support debt on 30 April 2018.
Those applications to which I have just referred are to return before Judge Spelleken on 3 December 2018.
In the letter dated 20 June 2018, the Registrar states that the Child Support Agency intended “to seek leave to appear at the next hearing date in respect of [the father’s] application as amicus curiae to assist the Court.” The Registrar does not appear before me today.
The father’s mooted appeal
The father’s mooted grounds of appeal contained in his draft Notice of Appeal are essentially submissions. He contends that:
a)her Honour “did not intend to omit the making of an order relating to the prescribed time outside of the 56 days”. With respect, he is wrong about that as I took him to concede before me today;
b)“at the time [her Honour] did not have any evidence from [the mother] that 1769 days was a reasonable time frame to pursue any application for parentage testing”; and
c)“the debt does not exist IF [her Honour made] an order dismissing [the mother’s] application for being unreasonably outside the 56 day time limit”.
Those mooted grounds reflect an essential concern that her Honour erred by failing to make a formal order relating to the extension of time to file the mother’s application pursuant to s 106A.
My explanation to the father this morning referenced r 25A.06 of the Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) which requires that the s 106A application be made within 56 days of being notified as to the success or not of the application for assessment pursuant to Division 1, Part 4 of the Assessment Act (“assessment application”).
As I have sought to make clear, both with each of the parties orally this morning and earlier in these reasons, it is abundantly clear from her Honour’s reasons that her Honour intended to grant leave to the mother to bring her application out of time (that is to say, some four and a half years out of time). With respect, I consider that her Honour should have made a formal order to that effect. Crucially, it is a mooted appeal from an order to that effect which is central to the father’s application and leave to appeal that order is a necessary precursor to appealing Order (1) of her Honour’s orders as made.
Within that context, and although not articulated as such, the father’s argument is plainly to the effect that her Honour’s discretion miscarried in her extending time to file the s 106A application pursuant to r 3.05 of the FCC Rules.
Leave to appeal
As I have said, the central challenge by the father is that her Honour erred in granting the mother an extension of time within which to bring her application for a s 106A declaration. If, as is likely, her Honour’s order is amended pursuant to the slip rule so as to include that order, the proposed appeal will be an appeal from that order. That order is interlocutory and the father needs leave to appeal.[8]
[8]Family Law Act 1974 (Cth) s94AA; Family Law Regulations 1984 (Cth) reg 15A.
In the ordinary course, leave to appeal is not readily granted in respect of appeals from interlocutory or procedural decisions. However, in this case that grant of leave is in turn central to the order made by her Honour in respect of the s 106A application. The granting or refusing of an extension of time is significant in financial terms as a consequence.
My references in these reasons to the prospective merits of the appeal, while using that language, are made cognizant of the prospective need to establish leave and the need to establish sufficient doubt and substantial injustice.
Ultimately, for the reasons which I am about to give, I am of the view that the father’s application to extend time to file a Notice of Appeal should be allowed.
Principles applicable to extending time
It is well established that the principles governing an application for extension of time to file a Notice of Appeal derive from what was said by McHugh J in Gallo v Dawson.[9]
[9] (1990) 93 ALR 479 at 480.
In Joshua v Joshua[10] Lindenmayer J stated that, when considering such an application:
…the first and most important question to be determined … is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant’s delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation…
(Bold emphasis added)
[10] (1997) FLC 92-767 at 84,440; See also, Bant & Clayton [2014] FamCAFC 108 at [10] – [11].
Nevertheless, as subsequent Full Courts have sought to point out, “the fundamental issue in this application is whether [granting the application will enable the court] to do justice between the parties”. Such considerations, as outlined by Lindenmayer J, are “not to be treated as legislative directions” and ultimately it is a matter for my discretion in the particular circumstances of this case.[11]
Is there a substantial issue to be raised on the appeal?
[11]Bant & Clayton [2014] FamCAFC 108 at [10] – [11]; See also, Tormsen and Tormsen (1993) FLC 92-392 at 80,017-8.
The Mother’s assessment application
The mother deposes to having “advised [the father] of this pregnancy in [mid] 2012”. She further deposes to the father “terminating our relationship” about a month later.[12] It seems the mother filed an application for assessment of child support in April 2013, although other references suggest, as indeed the child support assessment suggests, that in fact it was 2 May 2013.
[12]Mother’s affidavit filed 12 September 2017 at paragraph 2.
At that time, the father advised the Child Support Agency that he was not the father of the child. Her Honour found that “[t]he applicant would have been provided with [a] notice” pursuant to s 33 or 34 of the Assessment Act “around the time she made the application” (at [6]). This notice and the initial assessment application does not appear to be available on the court record.
The mother filed an application pursuant to s 106A of the Assessment Act more than four years after the birth of the child, in September 2017. Her Honour says at [8] that “[t]he applicant [told her Honour] that she was, for various reasons, unable to make an application prior to 2017”.
No further details of those “various reasons” appear in her Honour’s judgment. The mother told me from the bar table this morning that those “various reasons” concerned very significant health issues pertaining to both her and the child. The court record does not reveal those matters ever having been deposed to by the mother. I do not have a transcript of the proceedings before her Honour. I am unaware of whether evidence of the “various reasons” were before her Honour and, if so, in what form.
The legislative framework underpinning the issues before the primary judge
As I have earlier said, I think it is necessary, primarily because each of the parties represent themselves, but also because of the inherent complexity in the child support legislation, to refer to some of the legislative provisions that are at work in respect of the instant application and might be at work in respect of her Honour’s orders and any appeal from them.
Section 7A of the Assessment Act provides a definition for “child support period”. Relevantly, subsection (2)(a) of that section states:
(2) Each of the following times is the start of a child support period:
(a) the beginning of the day on which an application for an administrative assessment of the child support payable for a child is properly made under Part 4;
Upon the filing of an assessment application, s 30 of the Assessment Act requires the Registrar to accept the application if satisfied that the assessment application was properly made, or, if not so satisfied, refuse the assessment application. Section 31 requires the Registrar to assess the relevant persons “as quickly as possible” upon the acceptance of an application.
Section 34 of the Assessment Act requires that the Registrar notify the applicant upon a successful assessment application; conversely, s 33 requires that the Registrar also notify an applicant upon an unsuccessful application. These are, I apprehend, the notifications to which her Honour referred in the reasons.
Sections 68 and 71 of the Assessment Act permit the Registrar to make an assessment in relation to the “whole or part of” a single child support period.
Where the Registrar provides the applicant with a notice pursuant to s 33, and where, relevantly, the reason for refusing the assessment application is because “the Registrar was not satisfied under section 29 that a person who was to be assessed … is a parent of the child”, the applicant can file a s 106A application seeking a declaration that the “person should be assessed in respect of the cost of the child because the person is a parent of the child”.
Section 106A(1) states:
(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.
Crucially, s 106A(6)(a) provides as follows:
(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 the application— the Registrar is taken to have accepted the application for administrative assessment of child support…
(Emphasis added)
Given the retrospective language contained in s 106A(6)(a), and given a child support period is defined in s 7A of the Assessment Act as “commencing the beginning of the day on which an application for an administrative assessment of the child support payable for a child is properly made under Part 4”, the effect of those provisions is to render the “liable parent”, liable from when the assessment application was first made; in this case that would appear to be 2 May 2013.
Where an extension of time is granted, and a declaration is made (ignoring for the moment the appeal pathways), the next recourse for a liable parent who takes issue with an assessment made by the Child Support Agency, is to seek that a departure order be made by the Registrar pursuant to s 98B (or in limited defined circumstances that such an order be made directly by the Court pursuant to s 116).
In considering such an application, the Registrar or the Court must be satisfied of the matters specified in s 98C and s 117, respectively; and, if so satisfied, can make any of the orders set out in s 98S and s 118, respectively.
Finally, it is also important to mention that Division 3 of Part 7 of the Assessment Act precludes the making of a departure order by either the Registrar or the Court “in respect of a day in a child support period that is more than 18 months earlier”, without first obtaining leave from the Court. The Court “must not grant leave … in respect of a day in a child support period that is more than 7 years earlier”.
The Primary Judge’s decision to extend time and the necessary order
Her Honour found at [9]–[11] of the reasons that she was “not aware of any power for the Court” to “backdate” child support as sought by the mother, and further, that “it is a matter for the Child Support Agency as to when they make the assessment of child support”.
The provisions I have set out above show that while, indeed, it is a matter for the Agency, the process and the assessment date are statutorily governed. The period in which the father is to be assessed commences from when the assessment application was first made by the mother; that is, it seems, 2 May 2013.
Her Honour’s findings in respect of the extension of time are brief. It is convenient to set them out in full:
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 [in April 2013], 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 … 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. [The father] 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.
(Bold emphasis added)
Apart from the express statement at [7] quoted above, the following reasons for granting an extension of time also emerge:
·The parties were in a relationship at the time of conception;
·The Child Support Agency contacted the father asking him to sign the child’s birth certificate;
·The mother said that for various reasons she was unable to make an application prior to 2017;
·There would be no prejudice to the father; and
·There would be prejudice to the mother and the child if there was a failure to make the declaration.
The father says that her Honour did not have before her “any evidence” that 1,769 days was a reasonable time frame to pursue any application. By that I take him to mean that the mother offered no substantive reasons for failing to bring the application within time, or, conversely, explaining why it took over four years to do so. The father does not offer any evidence that her Honour should or should not have taken into account but the time period bound the mother and it was her obligation to bring any such evidence before her Honour.
Her Honour was clearly aware of the significant period between the filing of the assessment application, and the s 106A application but did not at all specify the “various reasons” why the mother was “unable to make an application prior to 2017”.
It is useful, I think, to also set out the first two paragraphs of her Honour’s reasons:
1. In this matter, an application was made on 12 September 2017 for a declaration that, pursuant to s.106A of the Child Support (Assessment) Act 1989 (“the Act”), that the respondent was a person liable to pay child support for the child because he is the father of the child [born 2013]. That application came before me on 18 October 2017, when the applicant and respondent appeared on their own behalf. [Ms Netia] has a transcript of the hearing on that day. At that time, I asked the respondent if he had any objection to an order for testing. His response was:
No, your Honour, but I would like to have an adjournment to allow that to occur. I was served the papers on 4 October. I have attempted to do DNA testing in the past, which [Ms Netia] has declined. She is requesting that I pay the complete amount. I am asking if that could be a shared cost, and rather than it occur in [G City] at the address, if it could be done on the [F City] or through our general practitioner, and I’ve made – I phoned the organisation, and they said that that is possible.. I’m also asking, your Honour, that [Ms Netia] is in – has a letter which she signed a number of years ago indicating that if she was to have a child that she would accept complete responsibility for the child in the future. And that I’m – and I’m also asking that the child support provision not be backdated to the child’s birth; rather, the application that is ---
2. And then I indicated:
I don’t think it would be backdated to the child’s birth; it would go from when the DNA test results come out. …
Further, after determining to refuse the making of any order relating to the “backdating” of child support, her Honour said:
10.It seems to me from a reading of [s 106A] 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.
The FCC Rules do not specify any criteria for a Court to consider in determining whether to extend time. Whether to do so or not involves the exercise of a broad discretion. The father’s mooted appeal, in that respect, is against the exercise of that broad discretion.
The exercise of discretion pursuant to r 3.05 appears to be unfettered.[13] However, Wilcox J in Hunter Valley Developments Pty Ltd v Cohen[14] 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”.
[13] See, 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].
[14] (1984) 3 FCR 344 at 348 – 349.
It is of course important that I not seek to prejudge any decision by an appeal court once time is extended and the relevant Notice of Appeal filed. That said, it is necessary for me to take into account the potential merits of any such appeal (and application for leave to appeal) as an important consideration in respect of the grant of an extension of time.
I note in that respect that her Honour concluded at [10] 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”. Leaving aside what might be said of the literal interpretation of that statement, it is a statement made, with great respect, without reference to the relevant statutory provisions, some at least of which I have set out above.
Those statutory provisions make it clear that the Child Support Agency is to make an assessment for child support from the date on which an assessment application is made. There may be other remedies of the type to which I have earlier referred that might otherwise impact upon that assessment, but that is not the issue to which her Honour addressed her comments.
In short, the date from which any assessment for child support commences is statutorily prescribed. As I have earlier sought to point out, in this case, that date is 2 May 2013. Again, other provisions of the Act relate to other remedies that might be available to either party, but that is not the issue with which her Honour was concerned.
Further, and again being cautious not to seek to prejudge any decision by an appeal court ultimately, it seems to me that the father has a strongly arguable case that neither the consequences, nor a comparison of the potential prejudice to each party (and the child) was considered by her Honour.
Her Honour made a finding that there would be “no prejudice” to the father if an extension of time was granted. However, it is arguably significant that her Honour’s finding failed to take into account the consequences to the father of giving the mother leave to file her s 106A application over four years out of time. It can be argued that any such prejudice is amplified in circumstances where it might be argued that her Honour may have made an error of law in concluding that the date upon which the assessment would commence was a matter for the Child Support Agency to decide as it might think fit.
Once the Child Support Agency assessed the father as being a liable parent from the date of the mother’s assessment application, it would be necessary for him to avail the provisions of the Assessment Act pertaining to departure. Further, his ability to seek a departure order in respect of the child support period extending beyond 18 months ago, is restricted by the requirement for him to first obtain leave of the Court pursuant to Division 3 of Part 7 of the Assessment Act. It can I think be argued that these are important matters in assessing prejudice to the father which were not considered in the exercise of her Honour’s discretion.
It is also arguable on appeal that her Honour failed to consider in the exercise of her discretion the ramifications pursuant to the legislation of not extending the time for the filing of the application by the mother. If that occurred, and the s 106A application was not permitted, it would nevertheless remain open to the mother to apply for an assessment based on the (unchallenged) declaration of paternity. In that event the assessment would commence from the date of that application.
Again, it is not for me to determine error in that respect, but it seems to me that the failure to consider that particular circumstance in balancing the respective prejudice to each of the parties is a matter that suggests potential substance in the appeal.
Further, matters relevant to the determination of the prejudice to the respective parties must also take into account the mother’s reasons for the delay in bringing the application and any prejudice to her if an extension of time was not granted. On the face of her Honour’s reasons, I am unable to determine what explanation the mother provided for failing to bring a s 106A application until September 2017.
It may well be that the matters raised from the bar table by the mother before me this morning provide an adequate explanation and indeed, an entirely adequate explanation. However, none of those matters are referred to in her Honour’s reasons. They seem to me to be plainly important to a consideration of the application by the mother to extend time, and again, without seeking to prejudge that issue, are matters which, it seems to me, provide arguable merit in the appeal.
As a consequence of the matters to which I have just referred I conclude that there is an arguable case for sufficient doubt attending her Honour’s decision and arguable substantial injustice. I consider that, notwithstanding the interlocutory order to which a central part of the proposed appeal would be directed, there is an arguable case for leave to appeal being granted and for success in the appeal thereafter.
Is there an adequate reason for delay by the father?
The period of delay arises from the expiration of the 28 day appeal period, consequent to her Honour’s order, on 10 January 2018.
Her Honour’s orders and reasons were delivered on 13 December 2017. As I have earlier referred to, the written reasons were not published until September 2018. That, it seems to me, is an important matter in calculating the relevant period of delay and in assessing the reasons for that delay.
The application made by the father was in fact filed prior to the reasons for her Honour’s decision being delivered.
It is also important as it seems to me that the assessment from the Child Support Agency issued on 20 January 2018, and the father deposed to taking a number of steps to address the child support assessment, including contacting the Child Support Agency, sending them a letter requesting that they reconsider their decision, and apparently seeking advice and assistance from Legal Aid Queensland.
It should be observed, I think, that the general thrust of the child support legislation is that challenges to assessments and the like are to be made in the first instance administratively, and it is understandable that this route would be pursued (formally or informally) by a party, particularly a largely self‑represented party, rather than pursuing a court remedy which might otherwise seem to be the obvious course in cases outside the child support regime.
In all the particular circumstances of this case, it seems to me that the delay in this case has been explained adequately by the father.
Conclusion
For all of those reasons, I am satisfied that time should be extended to file a Notice of Appeal.
It will, I think, be clear from what I have said that the formal terms of the orders will be somewhat unusual because the appeal and possible amended Notice of Appeal contemplate what seems to me to be the very real prospect that the orders made by her Honour would be amended pursuant to the slip rule.
If, as contemplated, the orders are amended according to the slip rule, it is equally plain from all of the material filed by the father on the application to extend time before me that it is intended by him to appeal the order extending time made by her Honour. That is an interlocutory order and it will be necessary for the father to file an amended Notice of Appeal which, within it, seeks leave to appeal that order.
Bearing those unusual circumstances in mind, I will order:
1.The Application in an Appeal for extension of time filed by the father on 30 August 2018 be allowed.
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.
Costs
Both parties represent themselves, as I have said. Each have indicated that they have not incurred any legal costs. I will formally make an order that there be no order as to costs.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy delivered on 15 November 2018.
Associate:
Date: 30 November 2018
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