Christian & Donald - [2008] FamCAFC 44

FAMILY COURT OF AUSTRALIA

CHRISTIAN & DONALD

[2008] FamCAFC 44

FAMILY LAW - APPEAL – PROPERTY - Where trial Judge dismissed husband’s application to set aside orders for property settlement – Whether trial Judge erred in failing to properly consider husband’s application to set aside orders for property settlement pursuant to s 79A of the Family Law Act 1975 (Cth) – Where husband alleged a miscarriage of justice by way of suppression of evidence of the children’s wishes to live with him – Where trial Judge noted the prior property orders specifically took into account the children’s stated wishes - Where no claim under s 79A(1)(b) and (c) raised at trial – Husband’s case on appeal was fundamentally different to that at trial – Whether trial Judge failed to consider the evidence that the children had moved to live with husband - Whether trial Judge erred in finding that the children’s move to live with the husband constituted “circumstances of an exceptional nature” but was within “the ordinary vicissitudes of life” – Discussion of Simpson & Hamlin (1984) FLC 91-576 - Under s 79A(1)(d), the husband had to establish both “exceptional circumstances” and “hardship” – No error by trial Judge. Whether trial Judge erred in failing to deal with application to return youngest child’s belongings to husband – Where Trial Judge not required to set aside or vary earlier property orders – Where husband did not establish what items of the child remained with the wife – No error by trial Judge.

FAMILY LAW - APPEAL - CHILDREN – Whether trial Judge erred in refusing to discharge order in respect of child aged 16 years and/or to vary contact changeover arrangements for youngest child - Where trial Judge found variations sought by the husband not in the children’s best interests - Where trial Judge gave sound reasons for refusing application - No error by trial Judge.

FAMILY LAW - APPEAL – APPLICATION FOR LEAVE TO APPEAL – CHILD SUPPORT DEPARTURE – Whether trial Judge erred in upholding the Child Support Registrar’s application of a prior Full Court’s decision in respect of the husband’s child support assessment – Where no statutory basis for relief as sought by the husband – Where trial Judge’s findings on the departure application were open to her – Leave to appeal refused.

FAMILY LAW - APPEAL – ADULT CHILD MAINTENANCE – Where trial Judge refused husband’s application for reimbursement from wife of child’s tertiary education expenses and weekly maintenance by way of adult child maintenance – Where trial Judge held that the husband failed to demonstrate that maintenance was “necessary” to complete the child’s education – Where expenditure had already occurred - Cosgrove & Cosgrove (1996) FLC 92-700 followed - Trial Judge erred in failing to consider the evidence in relation to the “necessity” of maintenance to complete child’s education – Full Court re-exercised the discretion and concluded the husband failed to establish a “necessity” for payment of adult child maintenance by the wife - Husband failed to meet the requirements of s 66L.

FAMILY LAW - APPEAL – LITIGANT IN PERSON - Whether trial Judge’s conduct of the hearing was prejudicial to the husband – Whether trial Judge failed to provide husband with proper assistance - Where husband appeared as a litigant in person – Where trial Judge provided explanations and assistance to the husband – Where trial Judge went to considerable lengths to ensure that the husband understood procedures of court – Trial Judge’s conduct of the hearing was not prejudicial to the husband.

FAMILY LAW - COSTS – Where the husband was wholly unsuccessful - Where the husband filed voluminous material which did not comply with the Family Law Rules 2004, requiring the wife to apply for further orders – Where circumstances under

s 117(2A) warranted an order that the husband pay the wife’s costs – Husband to pay wife’s costs of and incidental to the appeal.

Child Support (Assessment) Act 1989 (Cth), s 102
Family Law Act 1975 (Cth) s 66J(3)(b)(ii), s 66J(1)(c), s 66G, s 66L, s 66P, s 75(2), s 79, s 79A(1)(a), s 79A(1)(b), s 79A(1)(c), s 79A(1)(d), s 117(2A)

Federal Proceedings (Costs) Act 1981 (Cth)

Adam P Brown Male Fashions Pty Ltd v Phillip Morris & Anor (1981) 148 CLR 170
Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279
Bassingthwaighte & Leane (1993) FLC 92-410
CDJ v VAJ (1998) 197 CLR 172
Cosgrove & Cosgrove (1996) FLC 92-700
Coulton v Holcombe (1986) 162 CLR 1
Metwally (No 2) v University of Wollongong (1985) 60 ALR 68

Simpson & Hamlin (1984) FLC 91-576

Suttor v Gundowda Pty Ltd (1950) 81 CLR 418

Commonwealth of Australia, Family Law in Australia: A Report of the Joint Select Committee on the Family Law Act, Parliamentary Paper No 50 (1980)

APPELLANT:

Mr Christian

RESPONDENT:

Ms Donald

FILE NUMBER:

CAF

564

2000

APPEAL NUMBER:

2007

DATE DELIVERED:

18 April 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Warnick, Boland and Stevenson JJ

HEARING DATE:

10 October 2007

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

22 December 2006

LOWER COURT MNC:

[2006] FamCA 1403

REPRESENTATION

ADVOCATE FOR THE APPELLANT:	Mr Christian
COUNSEL FOR THE RESPONDENT:	Ms Tonkin

SOLICITOR FOR THE RESPONDENT:

McGuiness Eley Solicitors

Orders

That the husband’s application for leave to appeal Orders 1 and 7 of the orders of the Honourable Justice Lawrie made 22 December 2006 is dismissed.
That the husband’s appeal against Orders 2, 3, and 4 of the orders of the Honourable Justice Lawrie made 22 December 2006 is dismissed.
That the husband pay the wife’s costs of and incidental to the application for leave to appeal and the appeal as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules 2004.

IT IS NOTED that publication of this judgment under the pseudonym Christian & Donald is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 10 of 2007
File Number: CAF 564 of 2000

MR CHRISTIAN

Appellant

And

MS DONALD

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Notice of Appeal filed 22 January 2007 Mr Christian (“the husband”) appealed against orders made by Lawrie J on 22 December 2006 in proceedings between himself and Ms Donald (“the wife”). The orders made by Lawrie J related to:
· the husband’s application to set aside orders for property settlement made on 10 December 2001 pursuant to s 79A Family Law Act 1975 (Cth) (“the Act”);
·    variation of parenting orders relating to the children (“[N]”), born in October 1990, and (“[T]”), born in July 1995;
·    child support departure;
·    the husband’s application for maintenance for an adult child of the parties, (“[O]”), born in March 1986; and
·    the husband’s application for the “return” of [T’s] belongings.
The trial Judge dismissed all of the husband’s applications, as well as the wife’s application for a child support departure order.
The Notice of Appeal contained eleven grounds. The first ten grounds raised complaints directed to the trial Judge’s dealing with one or other of the applications just identified. The final ground asserted that the trial Judge’s conduct of the litigation was prejudicial to the husband.
The grounds of appeal did not refer to the husband’s application for the return of T’s belongings, but the husband did refer to this application in his written and oral submissions. We will treat this complaint as an additional ground of appeal.
The husband sought leave to adduce further evidence in the appeal in relation to the application for maintenance for O. He sought to tender two applications by O for leave to withdraw from a course at the Australian National University and copies of email correspondence between O and a clerk in the Faculty of Asian Studies. We will consider the admissibility of these documents later in our reasons.
The husband’s application to adduce further evidence also sought that he be permitted to rely on an affidavit affirmed by him on 15 March 2007 and that he be granted leave to file affidavits by L, the parties’ third child, and N. He did not press this application before us. Much material in the husband’s affidavit is contentious and was available at the time of the hearing before the trial Judge. Having regard to the principles set out in CDJ v VAJ (1998) 197 CLR 172 we are satisfied we should not admit the husband’s affidavit or grant leave to adduce evidence by L and N.

BACKGROUND

The husband was born in January 1957 and was accordingly 48 years old during the proceedings before the trial Judge. The wife was born in February 1955 and was 50 years old at that time. The parties were married on 17 February 1979 and separated on 1 October 1999, after living together for almost 21 years. The marriage was dissolved by a decree which became absolute on 11 February 2001.
There were five children of the marriage:
“[S]”, born in August 1984;
“[O]”, born in March 1986;
“[L]”, born in May 1988;
“[N]”, born in October 1990; and
“[T]”, born in July 1995.
On 10 December 2001 her Honour Moore J made orders in respect of parenting issues and property settlement after a contested hearing. At this time the four boys were living with the wife and S lived independently of both parents.
Moore J’s reasons for judgment were annexed to the wife’s affidavit sworn

26 May 2005
. Her Honour found that the contributions of the parties were equal. She noted that counsel agreed in final submissions that an adjustment of 20 per cent on account of s 75(2) factors would be appropriate, depending on the outcome of the competing applications for residence.
Moore J ordered that the four children live with the wife and spend time with the husband on alternate weekends and for half of all school holidays. Having considered the evidence in relation to s 75(2) factors, her Honour found that an adjustment of 20 per cent to the wife would be an appropriate recognition of her “greater responsibility for the children”. At the time of the judgment, the children’s ages ranged from 15 to 6 years.
Moore J found that the net pool of property had a value of $301,102.00. The wife’s entitlement of 70 per cent thus amounted to $210,771.00 and the husband’s share of 30 per cent to $90,330.00. The orders were structured so that the wife retained the former matrimonial home in Canberra and was required to pay to the husband the sum of $81,120.00.
On 14 July 2001 the wife married Mr D. The husband married Ms J on 28 May 2002.
The four boys began to live with the husband in July 2003. L and N have remained with him. After two weeks, O returned to the wife’s home and stayed with her until November 2003, when he went to live with his sister S. In July 2004 he moved into the home of the husband and Ms J. On 22 January 2006 he left their home and began to live independently of both of his parents. T lived with the wife until 2 June 2004, when orders were made by consent that he spend alternate weeks with each parent.
In his evidence at trial and submissions to us, the husband went into considerable detail about the financial dealings of each of the parties since the property orders made on 10 December 2001. It is not necessary for us to turn to this material unless and until he succeeds on his grounds of appeal in relation to s 79A.

GROUNDS 1, 2, 3 AND 4: THE HUSBAND’S APPLICATION PURSUANT TO SECTION 79A

The grounds in the Notice of Appeal were limited to ss 79A(1)(b), (c) and (d), with no reference to s 79A(1)(a) of the Act. No ground of appeal is directed to the trial Judge’s dismissal of the husband’s claim under s 79A(1)(a), and the husband did not refer to this sub-section in his oral submissions to us.
In his submissions filed 17 September 2007, however, the husband sought to incorporate earlier submissions filed on 7 August 2007 which refer to

s 79A(1)(a). As a result of orders made by Boland J on 6 September 2007 the submissions filed on 7 August 2007 were not before us, but were to be used by the husband as an aide memoire to support his oral submissions. Although it is not necessary that we do so, for completeness we will deal with the husband’s challenge to the trial Judge’s findings under s 79A(1)(a).
Section 79A(1)(a) of the Act provides:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that -
(a)there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance
…
the court may, in its discretion, vary the order or set the order aside and, if considers appropriate, make another order under section 79 in substitution for the order so set aside.
The husband alleged that a miscarriage of justice arose from “the manner in which the children’s wishes were dealt with by the court appointed counsellor and child representative”. He argued that, in the hearing before Moore J, there was a suppression of evidence of the children’s true wishes to live with him. The “inadequate or inappropriate presentation of the boys [sic] wishes” thus led to a miscarriage of justice, as the wife received an additional 20 per cent of the net pool of property and, ultimately the children moved to live with the husband.
It is clear from the reasons for judgment of Moore J that the author of the Family Report was cross-examined and that she made some concessions as to her methodology. Nonetheless, her Honour concluded that the evidence of the Counsellor “provided important insights into aspects of the children’s welfare” (paragraph 25). Her Honour also formed the view that the general thrust of the Counsellor’s conclusions and opinions was consistent with the weight of other evidence and thus well-founded.
The reasons for judgment of Moore J canvassed the evidence of the Counsellor in detail. Her Honour noted specifically that L and N, who were then 13 and 11, told the Counsellor that they wished to live with the husband and that O, who was then 15, said he wished to live independently of each of his parents. T, at 6 years of age, expressed no view as to where he wished to live.
Moore J then assessed the appropriate weight to be given to the children’s stated views. Her Honour was satisfied that the children had been subjected to “consistent and considerable pressure” since the breakdown of their parents’ relationship. That being so, her Honour found that the children’s views were not soundly based but were “solutions for the dilemma in which they find themselves”. The Counsellor expressed the view that the husband had left the children with no real choice as to where they said that they wished to live. In the opinion of Moore J, there was abundant evidence to support her conclusion.
Nonetheless, her Honour noted that the views expressed by the children remained a factor to be taken into account in the decision as to residence. It was her Honour’s opinion that factors relating to their best interests militated against their stated wishes being given significant weight. These factors were set out in detail in her Honour’s reasons for judgment. In summary, the conclusion was that the wife was:
far better equipped by reason of her qualities and conduct to meet the children’s emotional needs. Put another way, the evidence established that by his qualities and conduct their father [the husband] demonstrated his appreciation of the children’s emotional needs to be wanting.
The trial Judge rejected the husband’s argument that there was a suppression of evidence because the children’s expressed wishes were not properly put before Moore J. As the trial Judge noted, Moore J’s reasons specifically took into account the evidence that the boys stated a wish to live with the husband. We agree with the trial Judge’s opinion that the husband’s real complaint was that the children’s stated wishes did not carry the weight which he desired.
We see no basis upon which the husband can establish a suppression of evidence, resulting in a miscarriage of justice, within the meaning of s 79A(1)(a). Moore J considered all of the evidence presented in the 2001 trial and the husband did not appeal this decision within the time provided by the rules. In our view, the argument relating to the trial Judge’s treatment of the husband’s contention that there had been a miscarriage of justice pursuant to

s 79A(1)(a), fails.

GROUND 3: SUBSECTIONS 79A(1)(b) AND (c)

Ground 3 relates to ss 79A(1)(b) and 79A(1)(c) of the Act, which provide:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that –
…
(b) in the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out; or
(c) a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order;
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The husband contended that the trial Judge failed to consider the evidence relevant to these two subsections. He maintained that it was impracticable for the property orders made by Moore J in 2001 to be carried out so as to give effect to Her Honour’s reasons. He argued that the wife’s “years of greater responsibility for the children” had not eventuated because they moved to live with him.
Before we commence our discussion of this ground, it necessary that we consider the manner in which the husband conducted his case before the trial Judge. In his Further Amended Application filed 18 April 2005 the relief sought by the husband was identified as follows:
D SECTION 79A APPLICATION
12. That the property orders of the Court made 10 December 2001 be set aside.
Neither of the husband’s two affidavits filed in the proceedings identified any claim under s 79A(1)(b) and (c). At the conclusion of the trial the parties provided written submissions to the trial Judge. The husband provided submissions on 24 June 2005 and further submissions on 15 August 2005 neither of which raised any matter relevant to, or purported to require determination under s 79A(1)(c). In his first submissions the husband did refer to the move of the children to live with him being “circumstances that have arisen since the order was made it is impracticable for the order to be carried out” within the meaning of s 79A(1)(b). (Husband’s submissions p 8 paragraph 40).
It is convenient for us to first consider the ground insofar as it is based on asserted failure of the trial Judge to consider the evidence under s 79A(1)(c). This sub-section, which the husband now seeks to agitate on appeal, was not raised by the husband in his application, his outline of case document, or in his written submissions before the trial Judge. In accordance with well established authority we consider that the case the husband now seeks to mount is fundamentally different to that advanced before the trial Judge and is unavailable to him (see Metwally (No 2) v University of Wollongong (1985) 60 ALR 68; Suttor v Gundowda Pty Ltd (1950) 81 CLR 418; Coulton v Holcombe (1986) 162 CLR 1; Banque Commerciale SA En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279).
We discern no error by the trial Judge in not addressing by reference to

s 79(1)(b) the husband’s evidence about the change of residential arrangements of the children.

It seems to us that these submissions misinterpret s 79A(1)(b) and s 79A(1)(c). The orders made by Moore J were carried into effect several years ago. It is thus illogical to suggest that circumstances have arisen, since 10 December 2001, which make it impracticable for the orders to be carried out.
Further, although unnecessary for us to discuss it, it seems to us that the husband’s submissions as to s 79A(1)(c) are inconsistent with its plain words. The default must be of an “obligation imposed on the person by the order”, which must mean the orders pursuant to s 79. The wife has not defaulted in carrying out any part of the property orders made on 10 December 2001. In our view, therefore, the husband must fail on ground 3.

GROUNDS 1 AND 2: SECTION 79A(1)(d)

Section 79A(1)(d) of the Act provides:
Where, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, the court is satisfied that –
…
(d)in the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child (as defined in subsection (1AA)), the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order
…
the court may, in its discretion, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.
The trial Judge found that the children’s move to live with the husband did not constitute “circumstances of an exceptional nature” and referred to the decision of the Full Court in Simpson & Hamlin (1984) FLC 91-576. Her Honour was satisfied that the children’s change in residence fell within “the ordinary vicissitudes of life”, adopting a phrase from that judgment. Her Honour did not then proceed to consider the issue of “hardship”.
The husband’s written submissions included a section titled “Background to Enactment of Amendments to Section 79A”. He reviewed submissions received by the 1979 Joint Select Committee on the Family Law Act (Commonwealth of Australia, Family Law in Australia: A Report of the Joint Select Committee on the Family Law Act, Parliamentary Paper No 50 (1980)) and cited passages of parliamentary debate. With respect to the husband, this material did not assist his case before us.
The husband had to establish “circumstances of an exceptional nature” for his case pursuant to s 79A(1)(d) to succeed. Her Honour needed to be satisfied, as a matter of law, that he had done so. Only after being satisfied as to “exceptional circumstances” and “hardship” could her Honour proceed to exercise the discretion to grant the relief which the husband sought.
In Simpson & Hamlin (supra) the Full Court held that the moving of children to the other parent, after the making of orders, “could not of itself be held to be an unusual circumstance”.Their Honours quoted with approval the remarks of the trial Judge (at 79,657):
…The ordinary vicissitudes of life coupled with the difficulties that parties to a marriage often experience in the task of restructuring their lives following the dissolution of their marriage and their assets, and their obligations to the support of each other and the support, care and control of their children, frequently create situations where it is desirable having regard to the children’s welfare that such a change occurs.
The Full Court considered that in these conclusions the trial Judge was correct (p 79,657) and said:
The question therefore was whether the change which occurred in this case was such as to “take it out of and beyond the ordinary circumstances in which such change might be reasonably expected to occur’’. He saw that feature in the present case in “the fact that the change occurred unexpectedly and so quickly after the making of the property order’’.
…
His Honour in our view stated correctly the law applicable on this point. What amounts to “exceptional circumstances’’ is very much a question of fact and degree. With findings on such matters an appellate tribunal is reluctant to interfere. Whilst we might have had some hesitation ourselves as to whether or not in the light of the history of these parties and their admitted future intention, the change of custodial arrangements was so exceptional as to take it out of the normal vicissitudes of life, it was in our view a finding which his Honour was entitled to make on the evidence and which we cannot disturb.
The decision of the Full Court in Simpson & Hamlin (supra) did not put any additional gloss on the words of s 79A(1)(d). The judgment reiterated that the legislature has placed a relatively high onus on an applicant who seeks relief pursuant to s 79A(1)(d). The plain words of the sub-section indicate that it was not intended to cover, per se, a situation where children leave a parent who has received the benefit of an adjustment pursuant to s 75(2) on account of their future care. The successful applicant must establish “exceptional circumstances” relating to the care, welfare and development of a child of the marriage.
Here, in the circumstances which the trial Judge addressed, relevant factors included that there was evidence before Moore J of the wishes of the children including those of L and N, to live with the husband. Further, following the decision of Moore J in December 2001, the four younger children remained living with the wife until July 2003. O returned to live with the wife after a very brief period and remained with her until November 2003. He only again moved to the home of the husband in July 2004, by which time he was over eighteen years of age. T continued to live with the wife until mid-2004 and thereafter his care has been shared.
The presence of these factors militated against any contention that the change had occurred unexpectedly and or quickly after the making of the orders of Moore J in December 2001. Bearing in mind what the Full Court said in Simpson & Hamlin (supra), that “exceptional circumstances” were very much a question of fact and degree, and the reluctance of an appellate tribunal to interfere with findings about such matters, we are not satisfied that the trial Judge’s conclusion was not open to her.
It may be that another judge would have found that the husband had established “circumstances of an exceptional nature”. The question for us, however, is whether or not it was open to the trial Judge to reach the conclusion which she did. We are of the view that the husband failed to demonstrate that this finding was not open to the trial Judge. We cannot say that the trial Judge erred in finding that the children’s move was part of the “ordinary vicissitudes of life”, although falling short of “exceptional circumstances”.
We have sympathy for the husband, who may have suffered financial hardship. With respect to him, however, the fundamental flaw in his case was evident from his own words at the conclusion of his oral submissions. He said words to the effect:
At its root I am asking the court to treat me no differently to [the wife] – there is an injustice here.
The legislation simply does not allow the Court to put the husband in the same position as the wife found herself, when seeking orders pursuant to s 79 at first instance. Then, the question of likely arrangements for the children was simply a relevant factor to be established on the balance of probabilities. But now, a final order having been made, by virtue of public policy and the terms of

s 79A(1)(d), the husband must, in respect of a variation of the orders based on a change in arrangements for the children, establish both exceptional circumstances and hardship.

GROUNDS 5 AND 6: CONTACT AND RESIDENCE ORDERS

The husband sought to discharge all parenting orders in relation to N, who was born in October 1990 and was 16 years old at the time of the judgment. He also sought to vary the time and place for collection of T by the wife to implement the week-about regime. The trial Judge dismissed both of these applications.
The husband in grounds 5 and 6 asserted the trial Judge erred “in failing to take account of relevant considerations ….in relation to contact and residence for the child [N]” and “failing to take account of relevant considerations in relation to contact for the child [T]”. His written submissions in respect of ground 5 suggest that his argument was that N’s wishes should determine the outcome of this application, given his age.
There was no independent evidence before the trial Judge as to N’s views about spending time with the wife. Her Honour determined to leave the existing orders in place, to relieve N of the responsibility of deciding what time he would spend with the wife. The judgment referred to the long history of conflict between the parties, of which there was abundant evidence at trial.
In our opinion the trial Judge gave sound reasons for refusing the husband’s application to dismiss all parenting orders in relation to N. This ground of appeal must fail.
The trial Judge refused the husband’s application to vary the changeover point for T, from his school to the driveway of his home. In summary, her Honour’s reasons were that there was no evidence that it would be more convenient for the child if this change were to be made. The trial Judge thus determined that the variation sought by the husband was not in T’s best interests and the application was dismissed.
The husband’s written submissions to us effectively repeat what he put to the trial Judge. In our opinion, her Honour gave soundly based reasons for dismissing the husband’s application. This ground of appeal must fail.

GROUNDS 7, 8 AND 9: CHILD SUPPORT

The husband’s Notice of Appeal contained three grounds which purportedly related to child support issues. Grounds 8 and 9 appear to challenge her Honour’s dismissal of the husband’s departure application. No appeal lies against the trial Judge’s orders without the leave of the Full Court (s 102 Child Support (Assessment) Act 1989 (Cth) (“the CSA”)).
The husband did not formally seek leave to appeal. He raised the issue of leave in his orders sought, in the event we allowed the appeal. As we heard argument on these grounds, and no objection was raised by the wife’s counsel, we will consider these grounds as proposed grounds of appeal, and then consider whether leave should be granted.
The order of the Full Court made on 21 December 2004 was:
Order 3 made 14 May 2004 be set aside and in lieu thereof it is ordered that the respondent mother [the wife] pay to the applicant father [the husband] from the period 1 July 2003 to 30 September 2004 the sum of $5,000 towards the support of the children.
The husband sought from the trial Judge some form of declaration that the Child Support Registrar interpret this order as a requirement that the wife pay both the administrative assessment and the sum of $5,000.00. He also sought a departure order to cover the period 1 October 2004 to 7 February 2006. His argument at trial, in support of the application for a departure order, essentially was that the wife’s actual income and assets should be used to assess the quantum of her child support.
The trial Judge rejected the husband’s argument in respect of the Full Court’s order on the basis that the order specifically stated that the wife was to pay the sum of $5,000.00 “in lieu” of the amount ordered by way of departure on

14 May 2004.
Ground 7 of the Notice of Appeal asserts that the trial Judge “made an error of fact” in her reading of the decision of the Full Court and the subsequent application of it by the Child Support Registrar. A fundamental flaw in this aspect of the husband’s case is that there is no statutory basis for the relief which he seeks.
In his written submissions at the conclusion of the hearing before the trial Judge the husband sought to depart from the decision of the Objections Officer made 6 June 2005 fixing the parties’ respective child support incomes for the period 1 October 2004 to 7 February 2006. The trial Judge refused the husband’s application for a departure order.
The husband’s main arguments in support of that application were that the actual financial position of each of the parties should have been applied and that he had incurred additional expense in relation to the education of the children.
The trial Judge took into account the fact that the wife is a salary earner, which meant that all of her income was disclosed to the Child Support Agency. Proper adjustments would then be made in due course, taking account of the wife’s actual financial circumstances. Further, her Honour found that the wife’s financial circumstances were “modest” and referred to the substantial legal costs which she has incurred in years of ongoing litigation. Finally, her Honour found that she could not be satisfied that either party had deliberately minimised his or her income.
The husband’s complaint was that the trial Judge erred in fact and/or law in failing to consider the wife’s actual income and that her Honour “has failed to confirm by making an order, her Honour’s own findings in respect of the children’s education to year 12”. In his submissions the husband asserted the trial Judge had overlooked the fact the wife had not paid school fees for L “in year 11 and prospectively for year 12” (aide memoire page 38 paragraph 158).
The trial Judge noted at paragraph 42 of her reasons that Coleman J had made orders “that the parties pay one half of the school fees including arrears for [L], [N] and [T]” and that these orders were left in place by the Full Court. At paragraph 49 of her reasons, the trial Judge explained that the wife had an obligation for the period up to September 2004 when she paid the lump sum ordered by the Full Court and “her half of the school fees”. We are thus satisfied that her Honour was well aware that the wife was obliged, pursuant to Coleman J’s orders, to pay one half of the school fees, and that was an obligation which remained in force.
In our opinion it was open to the trial Judge to find that neither party had deliberately reduced his or her income. It was then open to her Honour to allow the Child Support Agency to apply the usual administrative assessment process.
As we have already noted s 102 of the CSA allows a party to appeal to the Full Court from a decree of the Family Court only with leave of the Full Court. The principles in relation to the granting of leave are well known (see Adam P Brown Male Fashions Pty Ltd v Phillip Morris & Anor (1981) 148 CLR 170). Those principles establish that an applicant for leave must demonstrate an error in principle by the trial Judge, or that a substantial injustice would be caused to the applicant if leave was not granted. However the Full Court in Bassingthwaighte & Leane (1993) FLC 92-410 explained that the general law principles in relation to leave to appeal from interlocutory orders may be too restrictive to applications for leave against substantive orders under the CSA.
In this case we are satisfied that the husband has demonstrated no error in principle by the trial Judge, or has a substantial injustice been caused to him. Further in the circumstances of this case, even applying a less restrictive test, we do not, having regard to the proposed grounds of appeal, which we have found to be without merit, find it appropriate to grant leave. Accordingly the husband’s proposed application for leave in respect of his child support challenges will be dismissed.

GROUND 10: ADULT CHILD MAINTENANCE

In his written submissions filed 15 August 2005 the husband set out the orders which he sought by way of maintenance for O. He asked that the wife pay to him maintenance of $100.00 per week from 19 July 2004 “until he complete [sic] his current tertiary education”. In addition, he sought that the wife reimburse him for
half of tertiary education costs, including apprenticeship expenses, business academy fees and university fees of [O] incurred by the father [the husband] since completion by [O] of year 12 secondary schooling on 19 November 2003.
O was born in March 1986 and turned 18 in 2004. The husband filed his application for adult child maintenance on 18 April 2005. As was pointed out to the husband during the hearing of the appeal, the Court cannot make an order to cover any period prior to the filing of the application. There is no difficulty with the making of an order for adult child maintenance dating from the commencement of the proceedings, in appropriate circumstances.
O completed his secondary education in 2003 and commenced an apprenticeship. Between July 2004 and December 2004 he completed a course at the Australian Business Academy. In 2005 he commenced a combined degree course, in Asian Studies and Commerce, at the Australian National University.
The husband claimed from the wife reimbursement of half the following expenses:
Canberra Institute of Technology   $ 587.55
Australian Business Academy Enrolment Fee  $ 200.00
Australian Business Academy Tuition Fee  $4650.00
Australian National University Co-op Book Shop  $ 674.68
Universities Admission Centre  $   35.00
Work Experience Costs  $ 300.00
Graduation Charges Including Gown  $ 160.00
Graduation Charges Less Deposit  $   60.00
Registered Post  $     5.65
Transport Costs to Academy ($15 per week for 20 weeks)         $ 300.00
ANU General Service Fee  $ 220.00
Class Materials  $    65.00
Text Books  $ 238.38
Total:  $7496.26
In his affidavit affirmed on 12 May 2005 the husband set out his evidence as to O’s employment in 2005. He said that O began work as a part-time telephone technician in February 2005, on a three month probationary contract. This job paid him approximately $264.00 per week.
In her affidavit sworn on 26 May 2005 the wife gave evidence of a conversation with O, in which he told her that he could obtain a Youth Allowance of $326.00 per week if he worked for 10 hours per week as a technician. He would then have a total income of $560.00 per fortnight. She also gave evidence that O told her that the husband advised him not to utilise the HECS scheme to cover the fees for his course at the business academy.
Counsel for the wife submitted to the trial Judge that the husband failed to establish that the provision of maintenance from the wife was necessary to enable O to complete his education. It was further submitted that the Court had no jurisdiction to entertain the husband’s application to recover from the wife the “alleged debt” of $7,496.00.
The husband responded to these submissions by focussing on evidence given by the wife during a previous hearing that she had provided $100.00 per week financial support for O, in cash and kind, in some unspecified period up to April 2004.
The husband also submitted that HECS was not available for the business academy course. Further, he submitted that O’s eligibility for a Youth Allowance must be disregarded when his application for adult child maintenance is determined: s 66J(3)(b)(ii). This submission is correct, as Youth Allowance is caught by the definition “any entitlement of the child or any other person to an income tested pension, allowance or benefit” in that

sub-section.
Section 66J(1)(c) provides that the Court must take into account “the income, earning capacity, property and financial resources of the child”.In cross-examination the husband conceded that he did not know how much O earned from his part-time employment. He said:
“I think his income is something else. I don’t know I don’t know what it is…”
(Transcript 28 June 2005, p 105 line 33).
He also conceded that he did not expect O to pay board.
O provided no evidence in support of the husband’s application for maintenance for him. It was thus open to the trial Judge to infer that O did not support the application.

At this point, it is convenient to consider the husband’s application to adduce further evidence in the appeal against the dismissal of the maintenance application. It seems to us that the university documents are relevant, because they show that O withdrew from his course at the beginning of 2006. By this time, he no longer lived with the husband and regarded himself as “homeless”. There is thus a closed period for the husband’s application for maintenance for O.
The trial Judge held that the husband failed to demonstrate that it was “necessary” for O to receive maintenance from the wife in order to complete his education. Her Honour said:
The father’s [husband’s] position seemed to some extent to be a submission that it would be fairer for the parents to share the educational expenses, but this is not the relevant question under the law. It is clear that the law is not intended to assist one parent recovering monies already spent. It is logically impossible to demonstrate that it is necessary for something (“y”) to happen to enable “x” when “x” has already occurred in the absence of “y”. (Paragraph 66).
On this basis her Honour did not examine the evidence in relation to the “necessity” for the wife to provide maintenance for O to enable him to complete his education.
It seems to us that there may be circumstances in which it could properly be found that payment of maintenance by a parent is “necessary”, despite the fact that expenditure has already occurred.
In Cosgrove & Cosgrove (1996) FLC 92-700, Warnick J said (at 83, 390):
Many of the provisions in Division 6, as to the matters to be addressed by the Court, use the present tense. In my view the use of that tense, in
s 66H(1), addresses the requirement that the court be satisfied at the time of making the order, not the period to which the order might relate.
The duty to maintain children exists pursuant to s 66B, irrespective of court orders. If a court, in respect of a past period, believes the prerequisites for an order pursuant to Division 6 existed during that period, (or with respect to capacity to pay, exist, at least, at the time of hearing) then any order made merely quantifies or crystallizes the extent of the duty as between the parties to the litigation, but does not establish a duty which did not exist before.
In this situation, and having regard to the discretion in s 66F and the general powers in s 66J(1), in particular in sub-paragraphs (g) and (k), I do not consider that the use of the present tense in s 66H(1) ought be seen as limiting the court to orders operating only in respect of the then future times.
Having regard to the waiting periods on court lists it would be productive of much hardship if orders could not be “back-dated”.
Of course any discretion to make a “retrospective order” must be exercised with a keen eye to the potential for injustice in such orders and a foremost consideration is the notice of a claim which has been given to the respondent.
We note that the relevant sections of the Act are now s 66L, s 66G and s 66P in Division 7 of the Act. The wording of those sections is in substantially identical terms to the provisions discussed by Warnick J. We adopt his Honour’s reasons as relevant to this appeal.
The trial Judge was thus in error in failing to consider the evidence as to whether it was necessary for O to receive maintenance from the wife in order to complete his education. This ground of appeal must succeed and we will re-exercise the discretion.
Our analysis of the evidence leads us to conclude that the husband failed to establish a “necessity” for payment of maintenance by the wife for O to enable him to complete his education. The absence of evidence from O as to his financial position and the husband’s lack of knowledge of his level of income are fatal to his application.Further, the husband conceded in cross-examination that he had not required that O pay board at any time up to the trial and had no intention to do so at any future time.
For these reasons, we find that the husband failed to meet the requirements of s 66L of the Act. The thrust of his case for adult child maintenance seemed to us to be encapsulated in his written submissions, which stated:
The quantum sought in contribution from the mother [the wife] is no more than that she stated she had contributed in the past and had said she would contribute in the future if there was a need for [O]. The Full Court is requested to hold the mother [the wife] to that commitment. For those sums already paid by the father [husband] whilst he waited for the Court to complete it’s [sic] determination, the reimbursement of half must be seen as reasonable.
(Paragraph 168 of appellant’s aide memoire)
An application for adult child maintenance is not governed by this process. The husband’s application must fail.

GROUND 11: THE CONDUCT OF THE HEARING

The husband complained that the trial Judge’s conduct of the litigation was “prejudicial” to him as a “pro se litigant” and “performed in a manner not conducive to the proper administration of justice”. His submissions to us effectively alleged a bias in favour of the wife. One aspect of this complaint is that her Honour failed to provide him with proper assistance as a litigant in person.
A careful reading of the transcript, in our view, demonstrates that the trial Judge went to considerable lengths to ensure that the husband understood the procedures of court. Certain comments by the husband might indicate that he had a greater understanding of court practice and procedure than might be expected of most litigants in person. For example, during an exchange with her Honour he said: “I’m speaking from the Bar table I know” (transcript 28 June 2005, p 63 line 17), which suggests that he had an appreciation of the distinction between evidence and submissions. The husband has qualifications in accounting and law and has had years of experience in conducting family law litigation in person.
On several occasions the husband acknowledged that her Honour had assisted him in understanding the issues and the steps which he needed to take to advance his case. The examples to which we now refer are by no means an exhaustive list of these instances.
At an early stage in the trial her Honour pointed out to the husband the problems with his application for maintenance for O. A little later her Honour explored with the husband the basis of his application pursuant to s 79A and explained his difficulties under s 79A(1)(a) of the Act.
Examples of occasions when the trial Judge provided explanations or assistance to the husband appear throughout the transcript. During cross-examination of the husband by counsel for the wife, her Honour gave a clear explanation of the difference between an exhibit and a document marked for identification (at transcript 29 June 2005, page 237). During the husband’s cross-examination of the wife, her counsel objected to a question. The trial Judge explained the basis of the objection and assisted the husband to frame the question in proper form.
When the trial Judge expressed concern that the case may not finish within the allocated time the husband said: “I am certain I can – I have got a few questions ma’am. But you are helping me get through them fairly quickly so I am sure we can finish…” “(transcript 28 June 2005, p 157 line 18). During the husband’s cross-examination of the wife he said to the trial Judge: “I need some advice here” (transcript 28 June 2005, p 181 line 1) and asked whether he could tender a certain document. Her Honour advised him that he could do so. At approximately 3:30pm on a day when the husband had been cross-examining the wife for a considerable time, the trial Judge offered to adjourn if he felt too tired to continue (at transcript 1 July 2005, page 276).
The transcript shows that the husband complained that he felt pressured and allowed insufficient time to conduct his cross-examination. Without undertaking a detailed analysis of the breakdown of the hearing days, it is clear from the transcript that neither party monopolised the available time.
There are at least two references in the transcript to indications by the trial Judge to counsel for the wife of an intention to allow the husband to ask questions which might be technically objectionable. It was obvious that her Honour was concerned to bring the matter to a timely conclusion.
When we consider the conduct of the trial as a whole, we do not come to the view that prejudice was occasioned to the husband. Certainly, we do not accept his submission that the trial process was flawed to the extent that the judgment cannot stand. The trial Judge had to balance the dictates of allowing the parties as much time as they wanted, with bringing the proceedings to a timely conclusion. We would dismiss this ground of appeal.

ORDERS FOR THE RETURN OF T’S BELONGINGS

There is no ground of appeal, other than the grounds under s 79A, directed to asserted failure of the trial Judge to deal with this application. The husband seeks an order that “the mother return to the father all items held by her and belonging to the children including” various items such as books and toys purchased during cohabitation, and in respect of T items used by him excluding “clothing, school clothing, toys, personal effects”.
In his Further Amended Application for Final Orders filed 18 April 2005 under the heading “Property Application”, the husband sought the wife return to him
all items belonging to all the children, or for use by the children to the father, including books, video tapes, software, games and tools, except those items purchased by the mother for use by [T] since 1 July 2003.
In his written submissions in the aide memoire (paragraphs 141-143 page 35) the husband submitted that the trial Judge failed to deal with this application.
We are satisfied that it was not necessary for the trial Judge to deal with this application, given the manner in which the husband framed the relief which he sought. Her Honour determined that the husband had failed to establish a miscarriage of justice in respect of the property orders made by Moore J. She was not required, therefore, to consider in the exercise of her discretion setting aside or varying those orders and substituting other orders in lieu.
In the event we are wrong in our interpretation of the husband’s application, we find no merit in this challenge to her Honour’s orders as the husband failed to establish at trial what items, if any remained with the wife.

COSTS OF THE APPEAL

At the conclusion of the appeal we sought submissions from both parties in respect of costs of the appeal. The wife sought in the event the appeal was allowed that she receive a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 (Cth), and in the event that the appeal was dismissed that the husband pay her costs. The husband opposed any costs order being made against him.
There is little by way of current information before us as to either party’s financial circumstances. The husband’s financial statement was filed in May 2005. He disclosed no property, and payment of rent to his present wife, Ms J, of $375.00 per week. He has a modest superannuation entitlement. The wife disclosed in her financial statement, also filed in May 2005, property owned by her to the value of $233,500.00 and total liabilities of $110,969.00. The figures relied on by the husband in respect of the parties’ actual incomes did not disclose a significant differential. At the date of swearing of their respective financial statements neither party was in a strong capital position, although the wife’s capital position was superior to that of the husband.
We were not informed that either party was in receipt of legal aid.
The wife was legally represented at the hearing of the appeal, and the husband appeared on his own behalf. He filed voluminous material, including the submissions which were to be treated in the appeal as an aide memoire, and which by reason of their non compliance with the rules, required the wife to file an application which led to orders being made requiring a proper summary of argument to be filed.
The husband has been wholly unsuccessful in the appeal, the child support leave application and in respect of asserted grounds of appeal not included in his Notice of Appeal but dealt with by us because of the husband’s submissions.
On balance, we are satisfied there are circumstances under s 117(2A), as discussed above, which warrant an order that the husband pay the wife’s costs of and incidental to the appeal.

I certify that the preceding one hundred and three (103) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 18 April 2008