Child Support Registrar and Stinton and Anor
[2020] FamCAFC 160
•6 July 2020
FAMILY COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & STINTON AND ANOR | [2020] FamCAFC 160 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Where the Child Support Registrar seeks an extension of time to apply for leave to appeal and if leave is granted to appeal an order which permanently stayed the collection of overseas child support from the first respondent – Where the Child Support Registrar contends that the permanent stay was made without power – Where it is contended that leave to appeal should be granted and the Full Court decisions of Child Support Registrar & Vladimir and Anor (2017) FLC 98-073 and Dove & Tolmay and Anor [2017] FamCAFC 253 support the merits of the appeal – Where the length of delay in bringing the application is almost eight years and there is no satisfactory reason for that delay – Where the prejudice to the first respondent if the application is allowed is significant – Where the overall justice of the case lies in refusing an extension of time to appeal – Application dismissed – No orders as to costs. |
| Child Support (Registration and Collection) Act 1988 (Cth) ss 107A, 111C, 111E Federal Circuit Court of Australia Act 1999 (Cth) s 15 Child Support (Registration and Collection) Regulations 2018 (Cth) Sch 1 Family Law Regulations 1984 (Cth) regs 36, 38, 38A |
| Child Support Registrar & Higgins and Anor (2016) FLC 98-069; [2016] FamCAFC 2 Child Support Registrar & Vladimirand Anor (2017) FLC 98-073; [2017] FamCAFC 56 Dove & Tolmayand Anor [2017] FamCAFC 253 Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26 |
| APPLICANT: | Child Support Registrar |
| FIRST RESPONDENT: | Mr Stinton |
| SECOND RESPONDENT: | Ms Dowdle |
| FILE NUMBER: | BRC | 7222 | of | 2011 |
| APPEAL NUMBER: | NOA | 104 | of | 2019 |
| DATE DELIVERED: | 6 July 2020 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Brisbane (via video link) |
| JUDGMENT OF: | Strickland, Aldridge & Kent JJ |
| HEARING DATE: | 3 June 2020 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | Transcript – 31 January 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Horsley |
| SOLICITOR FOR THE APPLICANT: | Mills Oakley Lawyers |
| FIRST RESPONDENT: | In person |
| SECOND RESPONDENT: | No appearance |
Orders
Leave be given to the applicant to apply as a non-party.
The Application in an Appeal filed on 25 November 2019 be dismissed.
There be no order as to costs.
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 Child Support Registrar & Stinton and Anor 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 104 of 2019
File Number: BRC 7222 of 2011
| Child Support Registrar |
Applicant
And
| Mr Stinton |
First Respondent
And
Ms Dowdle
Second Respondent
REASONS FOR JUDGMENT
Introduction
By Application in an Appeal filed on 25 November 2019, the Child Support Registrar (“CSR”) seeks an extension of time of almost eight years to apply as a non-party to the first instance proceedings, to seek leave to appeal and if leave is granted to appeal against an order made on 31 January 2012 by a federal magistrate of the Federal Magistrates Court of Australia (as it then was). That order provided as follows:
3.The collection of child support/overseas child maintenance from the [first respondent] as registered for enforcement with and by the child support registrar on behalf of the child [Ms B] born … June 1994 be permanently stayed.
The gravamen of the CSR’s application and consequent appeal is that it is now apparent that the federal magistrate did not have the power to permanently stay the collection of the registered overseas child support assessment.
Mr Stinton (“the first respondent”) opposes the application, and although he did not file any material in the application, he appeared at the hearing and made oral submissions as to his opposition. Ms Dowdle (“the second respondent”) is not participating in the application, just as she did not participate in the first instance proceedings.
Background
The first respondent and second respondent were in a relationship and had children of that relationship. The first respondent disputes the paternity of the youngest child, Ms B, who is now 26 years of age.
The first respondent lives in Australia and the second respondent lives in New Zealand.
On 26 October 2010, the CSR registered for collection a New Zealand assessment of child support at the request of the New Zealand Inland Revenue Department, which required the first respondent to pay child support for the parties’ children.
On 19 August 2011, the first respondent filed an Initiating Application in the Federal Magistrates Court of Australia at Brisbane seeking the following orders on a final basis:
1.That depending on the results of Dna testing, the courts make such orders as are appropriate in the circumstances of the case regarding my child support obligations in respect of the child [Ms B] born … June 1994.
2.That the [second respondent] and Child Support Agency be injuncted from enforcing child support and arrears pending the realease of the Dna testing.
(As per the original)
And sought on an interim basis:
1.That the [first respondent], the [second respondent] and the child [Ms B] undergo Dna testing that has already been paid for by the [first respondent], to determine the paternity of Ms B
(As per the original)
On 18 October 2011, the primary judge made interim orders for the collection of the first respondent’s registered overseas child support liability to be stayed pending the results of paternity testing of the child, for the second respondent to cause the child to provide a sample for the paternity testing, and for the second respondent to respond to the first respondent’s application within 28 days. His Honour noted that if the second respondent did not comply with the orders, the Court would consider making a permanent stay of the collection and enforcement of the overseas maintenance order on the next occasion.
The interim order made on 18 October 2011 included provision for that order to be sent to the Child Support Agency. Curiously, the evidence relied upon by the CSR in this application did not descend to particulars about whether or not the CSR received the interim order at that time. However, in the absence of any credible evidence raising any doubt, it is reasonable to proceed on the presumption that the terms of the order were met. It would follow, relevant to the discretionary considerations to be addressed, that the CSR was likely on notice of the proceedings and of the prospect of the proposed final order that was ultimately made, in advance of its making.
The second respondent did not comply with the interim order for paternity testing and did not otherwise engage in the proceedings. As acknowledged by counsel for the CSR, the resulting available inference is that the first respondent is not the father of Ms B (s 69Z(3) of the Family Law Act 1975 (Cth) (“the Family Law Act”)).
On 31 January 2012, the primary judge made the order permanently staying the collection of the first respondent’s registered overseas child support liability. The CSR was served with that order, and subsequently, the New Zealand Inland Revenue Department withdrew the registration application and the CSR removed the first respondent’s liability from the Australian Child Support Register.
It seems that it was not until 28 May 2019, that the CSR decided to accept an application made by the New Zealand Inland Revenue Department for registration of the first respondent’s overseas child support liability in relation to Ms B.
On 13 June 2019, the CSR’s legal representatives wrote to the first respondent outlining their position that the first respondent now owed a debt to the Commonwealth of Australia of $58,321.38, consisting of $41,055.52 in arrears of child support and $17,265.86 in late payment penalties (Affidavit of Mr C filed on 25 November 2019, Annexure CB3).
As mentioned, on 25 November 2019, almost eight years after the original order was made, the CSR filed the application for an extension of time to seek leave to appeal the order.
The application by the CSR as a non-party
The application by the CSR for leave to apply as a non-party must first be determined before the application for an extension of time.
There are two bases relied upon by the CSR to support that they have standing to apply. First, it is put that s 111E of the Child Support (Registration and Collection) Act 1988 (Cth) (“the CSRC Act”) confers upon the Registrar a statutory right to intervene in, and contest, any question in a proceeding arising under the CSRC Act. As submitted by the CSR, the appealed order of the primary judge was purportedly made under s 111C of the CSRC Act and is thus a proceeding under that Act.
For reasons which will be further explained, we accept the submission of the CSR that it is accurate to characterise the subject order as one purportedly made under s 111C of the CSRC Act. The order plainly was not expressed in terms conforming with the requirements for an order made under the relevant Family Law Regulations 1984 (Cth) (“the Family Law Regulations”) and therefore cannot be characterised as made purportedly pursuant to those Regulations. Absent other jurisdictional sources of power for the order, as we will explain, the primary judge must have purported to make the order under s 111C of the CSRC Act and was in error in so doing.
The second basis relied upon is that the CSR is a party directly affected by the order his Honour made. It is well established that a non-party may apply for leave to appeal where they are “directly affected” or “sufficiently interested” in the proceedings (Child Support Registrar & Vladimir and Anor (2017) FLC 98–073 (“CSR & Vladimir”) at [17]). It is clear that the order impacts upon the CSR’s statutory responsibilities in relation to the registered overseas maintenance liability. We are thus satisfied that the CSR is a party directly affected and has a sufficient interest in the proceedings, and should be given leave as a non-party to apply for an extension of time to file an application for leave to appeal.
The application for an extension of time
As the application for leave to appeal and to appeal is being sought to be filed almost eight years after the appealed order was made, an extension of time pursuant to r 1.14 of the Family Law Rules 2004 (Cth) (“the Rules”) is plainly required for the CSR to pursue the application.
The principles relevant to the determination of an application for an extension of time can be found in the oft-quoted extract from the judgment of McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:
The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott [1986] 12 FCR 187, at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v. Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice…
In summary, the fundamental issue is whether an extension of time is necessary for the Court to do justice between the parties, and in considering that, there are a number of factors which may be relevant to be taken into account. For example, whether there are adequate reasons which explain the failure to file the Notice of Appeal within the requisite 28 day time period, whether there is a substantial issue to be raised on appeal, or to put it another way, whether the appeal has any merit, whether there is any hardship or injustice to the respondent which cannot be compensated by orders for costs or otherwise, the nature of the litigation, the history of the proceedings, the conduct of the parties, and the consequences for the parties of the grant or refusal of the application.
In our view, the three most relevant and inter-related factors here are first, in the face of such extensive delay in bringing this application whether there is any reasonable explanation for that delay, secondly, whether there is merit in the application for leave to appeal, and if leave is granted, in the appeal, and thirdly, any prejudice which would be caused to the first respondent if the application was granted. Each of these factors will be discussed in turn.
Explanation for delay
As to the explanation for delay, the CSR relies upon an affidavit filed on 25 November 2019 by Mr C. In that affidavit, Mr C outlines the following:
a)The CSR was not a party to the proceedings below;
b)The matters the subject of this appeal were not apparent until the Full Court issued judgment in the cases of CSR & Vladimir and Dove & Tolmay and Anor [2017] FamCAFC 253 (“Dove & Tolmay”) in which the Full Court held that neither s 111C of the CSRC Act nor any other power existed which supported the making of a permanent stay of collection;
c)Following judgment in those proceedings, the Department of Human Services (now known as Services Australia) had to review its records to identify other affected cases;
d)On 11 June 2019, Mr C received instructions to correspond with the first respondent and on 13 June 2019, the solicitor for the CSR wrote to the first respondent advising him of their position and inviting him to consent to an order setting aside the stay order;
e)On 20 June 2019, the first respondent declined to give his consent to set aside the order;
f)Thereafter, the Application in an Appeal and affidavit were prepared and filed after receiving instructions from the CSR;
The above explanation for delay proffered by the CSR, namely that the CSR was not aware of the issues in the appeal until the Full Court judgments were delivered, cannot be maintained. The CSR was a party in both cases of CSR & Vladimir and Dove & Tolmay, which matters were heard in 2016, and in which they made submissions to the Court as to jurisdiction which were accepted by the Court. In other words, the CSR obviously held those views as to jurisdiction before the decisions of the Full Court were delivered. Moreover, there is no acceptable excuse for taking over another two years following delivery of the judgments in the two Full Court cases to file an application seeking an extension of time.
When this proposition was put to counsel for the CSR at the hearing of the appeal, counsel accepted that her client could have and should have acted sooner, and that the explanation offered for the delay was limited and does not constitute a satisfactory explanation. Counsel confirmed that the explanation for the delay was simply that the decision was not taken by the CSR prior to the matter of CSR & Vladimir to argue that point through to the Full Court.
We find that there is no satisfactory explanation for the almost eight year delay in seeking to bring the application for leave to appeal and to appeal.
Merits of the application for leave to appeal and the appeal
Before discussing the merits of the appeal itself, the merits of the application for leave to appeal must be addressed first. Leave to appeal is required pursuant to s 107A of the CSRC Act.
Whilst the discretion to grant leave to appeal is unfettered, the Court will generally approach the matter by looking to see whether the decision the subject of the appeal is attended by sufficient doubt so as to justify reconsideration and whether substantial injustice would arise if that reconsideration was not undertaken, assuming the decision to be wrong (Medlow & Medlow (2016) FLC 93-692).
In the affidavit of Mr C filed on 25 November 2019, the CSR submitted five points which go to the merits of the application for leave to appeal, as follows:
12.1There is a clear public interest in the issues raised by the draft Notice of Appeal, and the proper construction of s 111C of the Act, being considered and determined by this Court;
12.2The issues raised are significant to the operation and implementation of the child support scheme under the Act;
12.3The ambit of the jurisdiction to stay the effect of a registered maintenance liability is a matter of public importance and continuing significance;
12.4While the proper construction of s 111C of the Act was considered by the Full Court of the Family Court in Child Support Registrar v Vladimir (2017) 317 FLR 377 (Vladimir), the Full Court was not required to consider the particular matters raised on this appeal, being whether orders purportedly made under s 111C are to be treated as voidable or void;
12.5The ground of appeal in the draft Notice of Appeal raises an error of law warranting the grant of leave to appeal.
(As per the original)
When addressing this issue at the hearing, counsel for the CSR submitted that the order made by the federal magistrate is an error of principle and that in refusing to grant leave to appeal, that would cause substantial injustice to the CSR by preventing the CSR from fulfilling its statutory obligations which are otherwise required at law to be undertaken. In other words, it was submitted that the asserted error of principle itself is the substantial injustice caused to the CSR.
As will be explored shortly in these reasons under the merits of the appeal itself, we agree with the argument that the issue in this matter, namely, the ambit of the Court’s power to permanently stay the effect of a registered maintenance liability, is a matter of general public importance. Thus, in the event that an extension of time is granted, the application for leave to appeal would succeed.
Turning to the merits of the appeal itself, the sole proposed ground of appeal is that “[t]he primary judge had no power, either express or implied, to make Order 3”.
The CSR submitted that this ground has substantial merit because it went to the federal magistrate’s very power to make the order, and this is a question of a fundamental kind which should also overcome the fact of the lengthy delay in seeking to bring the application for leave to appeal and to appeal.
The CSR submitted that, as held in CSR & Vladimir and Dove & Tolmay, s 111C of the CSRC Act was not an available source of power to make the order permanently staying the collection of the registered overseas maintenance liability, and accordingly the order was made without power.
However, as was put to counsel for the CSR at the hearing of the appeal, the order does not in fact specify the source of power used, unlike in CSR & Vladimir. Further, this particular matter was brought before the Federal Magistrates Court of Australia by the first respondent in relation to parentage testing, which is quite a different circumstance than is to be found in CSR & Vladimir and Dove & Tolmay. The question then becomes whether the order could have been made under another source of power, for example, the injunctive relief under s 114(3) of the Act, or s 15 of the Federal Circuit Court of Australia Act 1999 (Cth) (“the Federal Circuit Court Act”).
Before we turn to the CSR’s submissions in response to this, it is necessary to set out the relevant legislative foundation underpinning the CSR’s argument.
In 2000, Australia and New Zealand entered into an agreement which was designed to address “serious practical and legal difficulties” in “the enforcement abroad of maintenance decisions”, to “facilitate recognition and enforcement of decisions”, and “provide for mutual co-operation in the collection and payment of monies in relation to” child support between the countries (“Australia–New Zealand Agreement”, Schedule 1 to the Child Support (Registration and Collection) Regulations 2018 (Cth)). The Articles of this agreement have been incorporated into Australian law, relevantly in ss 110 and 111AA of the Family Law Act and regs 36, 38 and 38A of the Family Law Regulations. Sections 110 and 111AA of the Act essentially provide that the Family Law Regulations will govern the Court’s power to deal with overseas maintenance liabilities.
Regulation 36 provides that a person can apply to an Australian court to discharge, suspend, revive or vary an overseas registered maintenance liability. Regulations 38 and 38A provide that any order made under reg 36 is provisional and of no force or effect until it is confirmed by a competent court of the reciprocating jurisdiction, namely the court in New Zealand.
In light of the above, the CSR’s overarching argument in relation to the Court’s source of power is that the legislature would not have intended that s 114(3) of the Family Law Act or any other possible source of power (for instance, s 15 of the Federal Circuit Court Act) could be utilised for purposes which are inconsistent with the obligations which are incorporated in the Australia–New Zealand Agreement on child and spouse maintenance.
As was held in Child Support Registrar & Higgins and Anor (2016) FLC 98-069 (“CSR & Higgins”) at [55], orders which permanently stay overseas maintenance liabilities “circumvent the entire purpose and structure of the trans-Tasman agreement… and the legislative provisions which underpin it in Australia”. That Full Court found that a permanent stay of a registered overseas maintenance liability “by its purported practical effect, seek[s] to effectively finally determine rights in respect of a New Zealand assessment without reference to a New Zealand court” and that the Family Law Regulations “cover the field” as to the source of power to make orders affecting overseas maintenance liabilities (CSR & Higgins at [56] and confirmed by CSR & Vladimir at [61]).
Thus, in summary, it was the CSR’s position that it is not open for the Court to interfere with overseas orders insofar as there are international maintenance obligations which involve Australia and New Zealand, beyond the manner provided for in the Family Law Regulations, through the application of powers, which are otherwise contained in the Family Law Act or the Federal Circuit Court Act. The CSR contended that the only source of power the order for a permanent stay could have been made under was the Family Law Regulations, namely reg 36, and that the order remained provisional until confirmed by the New Zealand court.
We accept this argument and acknowledge that it would have merit on appeal, however, we are not tasked with actually determining the application for leave to appeal or the appeal in this instance, and must still consider all factors informing the justice of the case in deciding the application for an extension of time.
Relevant to the justice of the case, and recognising that we did not have the benefit of comprehensive submissions on the point (given also the first respondent’s self-represented status), assuming the CSR established on appeal that the order of 31 January 2012 for a permanent stay upon collection was made without jurisdiction, it would be an order of a court which is not a superior court of record and thus would be an order with no legal effect (see, for example, New South Wales v Kable (2013) 252 CLR 118). In that event, it seems to us that it would be arguable that the interim order of 18 October 2011 was not discharged by, or subsumed in, the 31 January 2012 order given that that order would have no legal effect. Different considerations may well apply to the jurisdictional power to make the 18 October 2011 interim order such that it cannot be assumed that the setting aside of the 31 January 2012 permanent stay, for want of jurisdiction, axiomatically results in the 18 October 2011 order having no legal effect. That interim order is not the subject of any application for leave to appeal or to appeal.
We are therefore not persuaded on this application that injustice would necessarily result, even assuming the order of 31 January 2012 was wrongly made without jurisdiction. That then feeds into the issue of prejudice which we next address.
Prejudice
The prejudice to the first respondent if the application for an extension of time is allowed would be significant.
The amount sought by the CSR from the first respondent by way of child support arrears and late penalties as at 28 May 2019 is $58,321.38 (Affidavit of Mr C filed on 25 November 2019, Annexure CB3), and has obviously accumulated further, it being one year after the date of that letter.
Despite the CSR’s argument regarding power, the first respondent has relied upon the order made on 31 January 2012 and has been conducting his affairs since then on the basis that the collection of child support was stayed.
At the hearing of the appeal, when addressing prejudice, counsel for the CSR contended that there are avenues which remain available to the first respondent regardless of the delay, including challenging the New Zealand assessment by obtaining a declaration as to non-paternity in New Zealand. Counsel maintained that if the first respondent went down that path, the New Zealand court could take into account the fact that the second respondent did not engage in the Australian proceedings for paternity testing, and thus could draw an adverse inference when deciding such non-paternity application in New Zealand. It must be remembered though that Ms B is now 26 years of age and the court could not compel her to undergo the testing without her consent.
Plainly, to take such proceedings in New Zealand is not a viable or practical option for the first respondent.
Conclusion
Weighing the above factors in the balance, we are satisfied that the overall justice of the case lies in refusing the application for an extension of time to appeal. The length of delay of almost eight years and the substantial injustice which would result to the first respondent if the application is allowed outweighs any merit the application for leave to appeal and/or the appeal has.
No orders as to costs were sought from the parties and thus no such orders will be made.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 6 July 2020.
Associate:
Date: 6 July 2020
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