CANE & PAYTON
[2016] FamCAFC 197
•12 October 2016
FAMILY COURT OF AUSTRALIA
| CANE & PAYTON | [2016] FamCAFC 197 |
| FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the appellant has provided no basis for leave to be granted – Where no error of principle and/or substantial injustice has been demonstrated – Where it was open to the trial judge to make the orders that he did –– Where this is not a case where leave to appeal should be granted. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Further Amended Notice of Appeal – Where s 96AA of the Family Law Act 1975 (Cth) is the relevant section –– Where none of the grounds of appeal have any reasonable chance of success – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks an order for costs based on the success of the application for summary dismissal – Where the order was opposed by the appellant on the basis that pursuant to s 117 of the Family Law Act 1975(Cth) each party should bear their own costs – Where the appellant’s financial circumstances are not such that they provide a basis for there being no order for costs being made against her – Where there are circumstances which justify an order for costs being made – Costs order made in favour of the respondent. |
| Child Support (Assessment) Act 1989 (Cth) – ss 102A, 116 and Part 7 Division 5 Family Law Rules 2004 (Cth) – r 10.12 |
| Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 Rutherford v Rutherford (1991) FLC 92-255 |
| APPELLANT: | Ms Cane |
| RESPONDENT: | Mr Payton |
| FILE NUMBER: | MLC | 4645 | of | 2015 |
| APPEAL NUMBER: | SOA | 61 | of | 2015 |
| DATE DELIVERED: | 12 October 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 12 February 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 August 2015 |
| LOWER COURT MNC: | [2015] FCCA 2718 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bacon |
| SOLICITOR FOR THE APPELLANT: | Manby & Scott Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Williams |
| SOLICITOR FOR THE RESPONDENT: | Carew Counsel Solicitors |
Orders of 12 February 2016
The Further Amended Notice of Appeal filed on 15 January 2016 be dismissed.
Judgment be reserved in relation to the application for costs made on behalf of the applicant.
Order of 12 October 2016
The appellant pay the respondent’s costs of and incidental to the application in an appeal filed on 8 February 2016, with such costs to be assessed in default of agreement.
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 Cane & Payton 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).
|
Appeal Number: SOA 61 of 2015
File Number: MLC 4645 of 2015
| Ms Cane |
Appellant
And
| Mr Payton |
Respondent
REASONS FOR JUDGMENT
Introduction
On 15 January 2016 Ms Cane (“the appellant”) filed a Further Amended Notice of Appeal seeking leave to appeal the order made by Judge Riethmuller on 10 August 2015 dismissing the appellant’s application for lump sum child support filed on 25 February 2015, and if leave is granted, to appeal that order.
Mr Payton (“the respondent”) was the respondent to that Further Amended Notice of Appeal, and on 8 February 2016 he filed an application in an appeal seeking that that Further Amended Notice of Appeal be summarily dismissed. The appellant opposed that application, but on 12 February 2016 I dismissed the Further Amended Notice of Appeal and reserved the application for costs made by the respondent. These are the reasons for the dismissal, and the reasons for the order for costs that I now make.
Background
The parties were in a de facto relationship from 1 May 2011 until 15 November 2012, and they have a child, [A] (“the child”) born in 2013. That child lives with the appellant.
The respondent had been assessed to pay child support for the child commencing on 8 July 2013, and at the time of the hearing before the trial judge the weekly rate of child support was $369.
There were arrears of child support that accumulated in 2014, but by the time of the commencement of the proceedings on 25 February 2015, those arrears had been paid, and since then all payments of child support have been made by the respondent in accordance with the assessment.
On 25 February 2015 the appellant filed an Initiating Application in the Melbourne Magistrates Court seeking parenting orders and the following orders by way of child support:
…
3.The respondent pay capitalised lump sum child sum (sic) in the sum of $20,000 within 28 days.
4.The respondent continue to pay periodic child support as administratively assessed on time.
5.The court quantify [the child’s] future private school fees and, thereafter, pursuant to Part 7 Division 5 Child Support Assessment Act (sic) the respondent pay all of those future private school fees and other associated costs up front to either a school as agreed upon by the parties or one as determined by the court.
…
On 7 May 2015 that application was transferred to the Federal Circuit Court of Australia, and it was listed before the trial judge on 10 August 2015.
At the hearing on 10 August 2015, the parenting orders were made by consent, and the application for lump sum child support (in effect comprising paragraphs 3 and 5 of the application) was summarily dismissed.
On 21 August 2015 the appellant filed a Notice of Appeal against the order for summary dismissal. Then, on 2 September 2015 she filed an Amended Notice of Appeal, this time seeking leave to appeal as is required under s 102A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
On 4 December 2015 the matter came before this court for directions. I indicated to the appellant that there was no sufficient basis identified for leave to appeal to be granted, and the grounds of appeal were not competent. As a result, the appellant sought an adjournment to further amend her Notice of Appeal, and that application was granted over the objection of the respondent.
As referred to above, on 15 January 2016, the appellant filed her Further Amended Notice of Appeal, and that came before this court on 12 February 2016, as well as the application in an appeal filed by the respondent on 8 February 2016.
The relevant legal principles
The application by the respondent is for dismissal pursuant to r 10.12 of the Family Law Rules 2004 (Cth) (“the Rules”), but that rule does not apply to appeals, and instead the application needs to be considered under s 96AA of the Family Law Act 1975 (Cth) (“the Act”). That section provides as follows:
APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1) If:
(a) an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2)This section does not limit any powers that the court has apart from this section.
In terms of any relevant authority in relation to summary dismissal, the leading case continues to be Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251. There, Kirby J set out six principles to be applied in applications for summary relief (at page 256). Not all of those principles are relevant to this matter, but for completeness I set them all out hereunder:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6.The guiding principle is, as stated in O26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted)
For the purposes of the application here, I highlight the first, the second, the third and the sixth principle.
Discussion
It is necessary to first consider the application for leave to appeal, and in that regard the facts relied on to establish an error of principle and/or a substantial injustice (Rutherford v Rutherford (1991) FLC 92-255) are as follows:
1.The evidence in the case was that the respondent failed to pay child support and owed a considerable child support debt before the appeallant (sic) issued enforcement proceedings. The indications were that the respondent would not voluntarily pay his assessed child support into the future. The appeallant (sic) is a man who can afford to pay lump sum child support as sought. The appeallant (sic) had also disposed of at least one porperty (sic) owned by him. The judge incorrectly found that “there is no evidence before the court to suggest a history of difficulty in obtaining child support….” (paragraph 7 of his honour’s reasons). The appeallant’s (sic) affidavit adequately demonstrated that the respondent had had considerable child support arrears. In these circumstances the appeallant’s (sic) case should not have been summarily dismissed. The appeallant’s (sic) case did not lack reasonable prospect of success in all the circumstances.
2.The evidence in the case was that the respondent and appeallant (sic) agreed that the child […] should have a private school education. The evidence was also that the respondent can afford to contribute to [the child’s] private school education and that he would not so pay if he was not required to by court order. Decisions need to be made now about [the child’s] education even though he is still young. One of the more important of those decisions is who should pay for that education. In these circumstances the appeallant’s (sic) case should not have been summarily dismissed. The appeallant’s (sic) case did not lack a reasonable prospect of success in all the circumstances.
3.If there had been a lack of evidential material before the court as to any of the matters in the above 2 paragraphs that failing could and should have been cured by his Honour adjourning the case and allowing the appeallant (sic) to file further material. The affidavit filed in the case was not a trial affidavit and it did not contain all of the evidential material which would come out at trial.
4.In all the circumstances of the case and, in particular “less restrictive approach” which is said to apply to the granting of leave to appeal in child support cases, a substantial injustice would occur if leave were not granted.
The first set of facts would appear to go to the application for payment of a lump sum of $20,000.
His Honour found that the appellant did not have “an arguable case” with respect to this claim.
The bases of the appellant’s case were that there had been arrears of child support and that indicated the respondent may not pay child support into the future, that he could afford to pay a lump sum amount, and there was a risk that the respondent would “flee the jurisdiction”.
I pause to observe that there was no attempt by the appellant to bring the application for a lump sum payment within Part 7 Division 5 of the Assessment Act. That Division provides for orders for the provision of child support otherwise than in the form of periodic amounts paid to the carer, and in this instance s 124 of the Assessment Act was the relevant provision, given that the lump sum was not to be credited against the amount payable under the liability pursuant to the relevant administrative assessment. Putting that aside though, and the fact that that alone was probably fatal to the success of the application, the issue for his Honour was whether any of the stated bases provided a reasonable prospect of success (s 17A Federal Circuit Court of Australia Act 1999 (Cth)).
As to the first issue, it was the case that there had been arrears of child support, but it was not the case that there had been enforcement proceedings. Further, there were no arrears at the time of the commencement of the proceedings, or at the time of the hearing. Thus, it was clearly open to the trial judge to find that the fact of there having been arrears in the past did not provide a basis for a lump sum payment to be required.
I note that reference is made to what his Honour said in [7] of his reasons, but not all of what his Honour said is quoted, and that provides an unfortunate distortion of what his Honour did say. The entire paragraph reads as follows:
7.The child support payments are presently up to date. There is no evidence before the Court to suggest a history of difficulty in obtaining child support or other circumstances which indicate an attempt by the Respondent to avoid collection or payment of child support such as to arguably justify a lump sum order.
His Honour is there saying that there is no evidence to suggest a history sufficient to justify a lump sum order. Again, that finding was plainly open to his Honour on the evidence before him.
Next, it can be no justification to order a lump sum payment simply because a party is able to afford a lump sum. It can also take it no further to assert that that party’s “real income” is higher than his taxable income. That is an entirely separate issue for which there is quite a different process, namely an application for a departure order.
As to the third basis for the claim, there was absolutely no evidence before his Honour which demonstrated that the respondent was a flight risk. Indeed, as his Honour found, the evidence that was before him pointed the other way (at [6]).
The second set of facts goes to the application for the payment of future school fees. His Honour found (at [4]) that this was “a premature application and not one that could possibly succeed at this time on the material before the court”.
Again, the issue before his Honour was whether the evidence demonstrated a reasonable chance of success, and as his Honour was obliged to do in considering an application for summary dismissal, his Honour took the appellant’s evidence at its highest. On the basis of that evidence his Honour concluded as follows:
2.The child in this case is only two years of age and no school has been chosen as yet. No school is proposed in the Applicant’s material. No evidence of school fees is before the Court. The evidence before me does not indicate that there was any particular agreement about the expectations of the parents with respect to the education of the child.
3.There is no evidence before me that the child has any particular educational needs that are causing additional expense at this young age. Conceivably, as the child gets closer to school age, there may possibly be a need for tuition around English language skills given that the child is living in a household that primarily speaks another language, although this is mere conjecture at this point.
4.In the circumstances I am not persuaded that there is any basis for making an order that money be paid in an unascertained amount to an unascertained school with respect to a child who is four years from attending school. This is a premature application and not one that can possibly succeed at this time on the material before the Court.
I can find no error here by the trial judge, and it was plainly open to his Honour to treat this as an ill-founded application that had no prospects of success.
In relation to the third set of facts, the simple answer is that there was no application by the appellant to adjourn the proceedings, and there is no basis to suggest that a trial judge should adjourn proceedings such as these of his own motion if the applicant has failed to provide sufficient evidence to support the application.
In any event, the respondent also correctly points out that following the filing of the application by the respondent seeking summary dismissal, and the affidavit in support thereof, the appellant filed a further affidavit in support of her initial application. Thus, she had ample opportunity to put before the court all of the evidence on which she wished to rely.
This claim by the appellant provides no basis whatsoever for leave to be granted.
Finally, there is the fourth set of “facts”, but as can be seen that is nothing more than a vague, non-specific, general assertion which cannot found an application for leave.
Conclusion as to the application for leave to appeal
No error of principle and/or substantial injustice has been demonstrated such that leave to appeal should be granted. However, for completeness, and out of abundant caution, I will address the grounds of appeal which would have come into focus if leave was to be granted.
The grounds of appeal
Ground 1
His Honour, the trial judge’s findings that the appeallant’s (sic) case had no reasonable prospect of success such as to allow him to summarily dismiss the case were not reasonably open to him.
This is not a proper ground of appeal. It is nothing more than a general assertion and provides no basis for discussion. Not only does it have no reasonable chance of success, it has no chance at all. However, for the purposes of the argument, given what I have found in relation to the application for leave to appeal, the findings of the trial judge that the appellant’s case had no reasonable prospect of success was well open to his Honour.
Ground 2
His Honour erred in finding the respondent’s demonstrated reluctance to pay child support did not warrant lump sum orders being made.
This is also a ground that has no reasonable chance of success.
It is simply not the case that his Honour found that the respondent “demonstrated reluctance to pay child support”. It was common ground that there were arrears of child support, and that those arrears were met before the commencement of any proceedings. It is instructive to again set out precisely what his Honour did in fact find, namely:
7.The child support payments are presently up to date. There is no evidence before the Court to suggest a history of difficulty in obtaining child support or other circumstances which indicate an attempt by the Respondent to avoid collection or payment of child support such as to arguably justify a lump sum order.
Again, it was well open to his Honour to make this finding, and it is plain that this ground does not have a reasonable chance of success.
Ground 3
His Honour erred in finding the respondent not be required to contribute to the child’s private school education costs.
I repeat what I have said about this issue when considering the application for leave to appeal. I also highlight that what his Honour found was that the application was premature and could not succeed at the time it was brought.
Once again, it is patently obvious that this ground not only has no reasonable chance of success, but it has no chance of success.
Ground 4
His Honour misconstrued the private school fee aspect of the case as a “departure application” when, in fact, there was no such application before the court. The relevant application before the court being an application under Part 7 Division 5 Child Support Assessmsent Act (sic).
His Honour did not “misconstrue the private school aspect of the case”. It is the appellant who has “misconstrued” what his Honour said.
After indicating that he would be dismissing the application his Honour said this:
10.To the extent this is arguably a departure application (although departure is not sought in the application, rather the contrary application for an order to continue to pay the administrative assessment), there is nothing that would support the exercise of the Court’s discretion under s.116 of the Child Support Assessment Act 1989 (‘the Act’). There is no reason the Applicant should not pursue the ordinary administrative departure process under the Act if a change to the periodic child support is sought.
Because the appellant failed to properly bring at least the application for a lump sum payment within Part 7 Division 5 of the Assessment Act, his Honour was attempting to cover all possible bases for the application.
This is another ground of appeal where I can safely say that it has no chance of success.
Ground 5
His Honour erred in finding that there were not adequate grounds under s116 Child Support Assessment Act (sic) to hear any aspect of the appeallant’s (sic) case which may have needed to be dealt with pursuant to that section.
This ground of appeal emanates from [10] of his Honour’s reasons. However, it completely overlooks the fact that in referring to s 116 of the Assessment Act, his Honour was attempting to cover all possible bases for at least the application for a lump sum payment. That stemmed from the circumstance that there was no attempt by the appellant to bring that application within Part 7 Division 5 of the Act. It seems that that though was the basis on which the application was brought, and thus it is the height of hypocrisy for the appellant to raise any complaint about what his Honour said in [10].
In any event, it was clearly open for his Honour to find that there was “nothing that would support the exercise of the Court’s discretion under s.116”. The necessary evidence simply was not there.
In these circumstances this ground of appeal has no chance of success.
Conclusion in relation to the grounds of appeal
None of the grounds of appeal have any reasonable chance of success, and thus if leave to appeal was granted the appeal would be dismissed. However, as indicated above, this is not a case where leave to appeal should be granted, and it is on that basis that I dismissed the Further Amended Notice of Appeal filed on 12 February 2016.
Costs
At the conclusion of the hearing submissions were sought from both parties in relation to the question of costs given the dismissal of the Further Amended Notice of Appeal.
The respondent sought an order for costs based on the success of the application for summary dismissal, but that order was opposed by the appellant, suggesting that s 117(1) of the Act applied, and that each party should bear their own costs. There was also an issue about the respective financial circumstances of the parties, but it readily became apparent that although the income of the appellant was substantially less than the income of the respondent, the appellant’s financial circumstances were such that they did not provide any basis for there to be no order for costs against her.
The primary position in s 117(1) is just that, and it is subject to the provisions of s 117(2) of the Act, and where there are circumstances that justify an order for costs, then an order can be made. In this case there are such circumstances, and specifically the fact that the respondent’s application has been entirely successful. Accordingly, I propose to make the order as sought by the respondent.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 October 2016.
Associate:
Date: 12 October 2016
0
2
4