Clifford & Alban and Anor

[2007] FamCA 1437

FAMILY COURT OF AUSTRALIA

CLIFFORD & ALBAN & ANOR [2007] FamCA 1437

FAMILY LAW – APPEAL FROM DECISION OF FEDERAL MAGISTRATE – CHILD SUPPORT – Enforcement of orders – Whether the Federal Magistrate erred in not granting a permanent stay of the enforcement proceedings – Abuse of Process - Disqualification on grounds of bias – Appeal Dismissed.

FAMILY LAW - APPEAL – COSTS – Appellant to pay costs of first and second respondents fixed at $3000 for each party.

Family Law Act 1975 (Cth)

Brott v Abeles [2007] FLC 93-310
Johnson and Johnson [2001] CLR 488
Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
AMS v AIF (1999) FLC 92-852

APPELLANT: MR CLIFFORD

FIRST RESPONDENT: MR ALBAN

SECOND RESPONDENT: MS MOUNTFORD

FILE NUMBER: BRC 1681 of 2007

APPEAL NUMBER: NA 27 L of 2007

DATE DELIVERED:	12 December 2007
PLACE DELIVERED:	Brisbane

JUDGMENT OF: May J

HEARING DATE:

19 June 2007

27 July 2007
31 August 2007
And written submissions

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 21 March 2007

LOWER COURT MNC: [2007] FMCAfam 178

REPRESENTATION

SOLICITOR FOR THE APPELLANT: In person

SOLICITOR FOR THE FIRST 

RESPONDENT:

Australian Government Solicitor

SOLICITOR FOR THE SECOND

RESPONDENT:

Hayley Ritchie Solicitors

Orders

1. That the Application in a Case filed 30 March 2007 is dismissed.

2. That the Notice of Appeal filed 30 March 2007 is dismissed.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Full Court delivered this day will for all publication and reporting purposes be referred to as Clifford & Alban & Mountford

FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 27 L of 2007
File Number: BRC  1681  of 2007

MR CLIFFORD

Appellant

And

MR ALBAN

First Respondent

And

MS MOUNTFORD
Second Respondent

REASONS FOR JUDGMENT

1. In an Application in a Case filed on 30 March 2007 Mr Clifford asked that the orders made by Federal Magistrate Jarrett on 21 March 2007 be stayed. Further, that any leave necessary be given to appeal that decision and further, that the enforcement of orders made by Federal Magistrate Rimmer on 14 August 2001 be permanently stayed as an abuse of process.

2. I mention at this introductory stage that this appeal is to be determined by me as a single Judge of the Family Court pursuant to arrangements made under section 94AAA(3) of the Family Law Act 1975 (“the Act”).

3. In the affidavit filed in support of the application Mr Clifford said that he disputes that he owes a debt for child maintenance and complains that as he is shortly to be evicted from his house because of Court orders his application for a stay should be heard together with the appeal. Mr Clifford referred to what he described as

   An enormous amount of litigation between the second respondent and me over this child maintenance debt. I do not propose to detail that history and my position in this matter in this affidavit. I have instructed my solicitors to brief counsel to prepare, inter alia, a detailed affidavit to explain these matters.

4. The Notice of Appeal was filed on 30 March 2007. The grounds of appeal are as follows:

   1.The learned Federal Magistrate erred in refusing to disqualify himself from the hearing of this matter.

   2.The learned Magistrate erred in not granting a permanent stay of these (enforcement) proceedings.

5. The orders sought by the appellant are:

   1.The further enforcement of the orders of Rimmer FM made on 14 August 2001 be permanently stayed as an abuse of process.

   2.The firstnamed respondent pay the applicant’s costs of and incidental to these proceedings.

Background of this appeal

1. This appeal has had a number of hearing dates and at the request of the appellant, has been adjourned on three occasions. It is helpful to set out briefly the history of the litigation in order to understand the reason that ultimately it is being determined by way of written argument.

2. The matter came before Warnick J on 27 April 2007 for the purpose of directions being made for the hearing of this appeal. His Honour set the matter down for hearing on 19 June 2007 and ordered:

   1.That the appellant file and serve a list of documents from the Federal Magistrates Court file which the appellant contends are relevant to the appeal by 4.00pm on Thursday 10 May 2007.

   …

   3.That the appellant obtain and provide copies thereof to the Court and the respondents, the transcript of the evidence, or such parts of the transcript as are included in the index of documents, at the hearing before Federal Magistrate Jarrett which culminated in the orders of 21 March 2007, by 4.00pm on Tuesday 22 May 2007.

   4.That the appellant file and serve a written Summary of Argument and a List of Authorities to be relied upon, if any, by 4.00pm on Wednesday 6 June 2007.

3. On 10 May 2007 a document entitled “Documents to be relied upon by the respondent” was filed by the appellant. The documents referred to were an Application in a Case and an affidavit sworn 7 May 2007 and an affidavit sworn 7 March 2007. The application and affidavit were filed on the first instance file and sought a stay of execution of the sale of the property which was the subject of the orders. This application was listed before Federal Magistrate Jarrett on 18 June 2007. On that occasion there was no appearance on behalf of Mr Clifford, the Federal Magistrate dismissed the stay application and made a costs order against the applicant in favour of the first and second respondents.

4. The appellant did not comply with the directions of Warnick J.

5. On 19 June 2006, the date set for the hearing of this appeal, the appellant appeared by video-link from Melbourne. The appellant originally had solicitors however those solicitors filed a Notice of Ceasing to Act on 24 April 2007. A Notice of Address for Service was filed on 8 May 2007 by other solicitors in Victoria. Those solicitors filed a Notice of Ceasing to Act on 10 May 2007. The appellant complains that he had put them in funds to the extent of $5,000 but they have not followed his instructions. It seems that the appellant has no prospect of engaging solicitors because he has no ability to pay the fees.

6. At the hearing on 19 June 2007 the appellant advised that he had tried various avenues to obtain legal assistance and had made an application for financial assistance via the Attorney-General’s Department and was awaiting a reply. He submitted that he was unable to represent himself in such a complex matter. He sought an adjournment of the appeal which was granted on the basis that funds might become available so that the appellant could be represented.

7. The hearing of the appeal was adjourned to 27 July 2007 and various orders were made including the grant of an extension of time for compliance with Warnick J’s orders of 27 April 2007. The appellant was ordered to pay the costs of the respondents.

8. At the next hearing date on 27 July 2007 the appellant was represented by counsel. On that occasion counsel advised that the application for financial assistance from the Attorney-General’s Department under the Public Interest Funding Scheme had been denied but that an appeal had been lodged against that decision. Counsel for the appellant sought an adjournment of the appeal and advised that the decision regarding the appeal to the Attorney-General would be known in two weeks. It was also submitted that funds would become available from a third party to pay for legal representation. The adjournment was granted and the appeal was listed to be heard on 31 August 2007 with further directions and an order for costs.

9. On 31 August 2007 the appellant did not appear and a person, who is not a legally qualified person, appeared to provide to the Court a medical certificate and facsimile from a doctor which stated that Mr Clifford was suffering from bronchitis and that he was unfit from 28 August 2007 to 2 September 2007.

10. A submission was made on behalf of the Australian Government Solicitor that the further hearing be by written submissions. Following further submissions from counsel for the first and second respondents and the person who appeared for the appellant, the following orders were made in relation to the further conduct of the matter with the costs of the first and second respondents being reserved:

    1.That the appellant file in the Appeal Registry at Brisbane and serve the first and second respondents with any material upon which he would rely in support of his appeal together with submissions within (28) days of today and failing filing such material the appeal be dismissed.

    2.That the first and second respondents have leave to file in the Appeal Registry at Brisbane and serve the appellant and the other respondent with any further submissions in relation to the appeal (28) days after receipt of the appellant’s submissions.

11. Submissions were received from the appellant and second respondent.

The judgment

1. The judgment of the Federal Magistrate was delivered on 21 March 2007 the hearing having taken place on 19 March 2007. The appellant was represented by solicitors at that hearing. The orders made by his Honour were as follows:

   1.That the Respondent’s application for disqualification is dismissed.

   2.That in respect of the [property] […] located in the State of Victoria, now more particularly described in Certificate of Title Volume […] (“the property”), a writ of possession do issue.

   3.That the Sheriff be at liberty to do all things necessary to obtain vacant possession of the property, including but not limited to, changing all locks and removing and disposing of any assets or possessions of the respondent, or any other person, found on the property.

   4.        That the application for costs be dismissed.

2. As his Honour observed at the outset of his judgment there were two matters with which he was to deal. The first was an application that he disqualify himself and the second was an application for an issue of a Writ of Possession being an application brought by Mr Alban in his capacity as Sheriff of the Federal Magistrates Court of Australia. In relation to the disqualification, his Honour referred to the relevant law including Johnson and Johnson [2001] CLR 488 in particular as to the question of:

   …Whether a fair minded lay observer might reasonably apprehend that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question he or she is required to decide.

3. The Federal Magistrate referred to earlier matters between these parties in which he made orders including on 25 August 2006. That application was to set aside the original orders of Federal Magistrate Rimmer made on 14 August 2001. It had been the appellant’s case that the factual basis on which the Magistrate acted was incorrect in that the date of separation as found was incorrect and consequently that the Child Support legislation applied.

4. The application before the Federal Magistrate failed. The appellant appealed and as he was out of time it was necessary to obtain an extension of time. Warnick J on 19 December 2006 refused an extension of time largely by reference to the lack of prospects of success of his appeal.

5. In view of the background to the matter and by reference to established authorities the Federal Magistrate refused to disqualify himself.

6. As to the Writ of Possession, some matters of history were set out by the Federal Magistrate including that the appellant had not successfully appealed against the original order of Rimmer FM made on 14 August 2001 (when he failed to appear) nor the subsequent orders made by the Federal Magistrates Court.

7. The original order provided that the appellant pay the second respondent the sum of $100 per child per week for the two children. Subsequently enforcement orders were made.

8. A particular reason for refusing the application was, as the Federal Magistrate correctly observed, Mr Clifford now wishes to argue some issues that he may have raised in the proceedings in August 2001 and should now not be permitted to argue in an effort to resist enforcement of the orders. Ultimately the learned Federal Magistrate said at paragraph 24:

   24.…In those circumstances, the first matter relied upon by the respondent cannot, in my view, establish that the current application by the Sheriff is an abuse of process.

9. In relation to the second matter which was an assertion about delay it could only be said that the delay was as much in the hands of the appellant. The learned Federal Magistrate referred to the decision that he delivered in August 2006 where he set out at considerable length the facts and a chronology of this matter. Commencing at paragraph 28 his Honour said as follows:

   28.What is apparent from the chronology is that Ms [Mountford] who is the beneficiary of the child maintenance orders of August, 2001, has indeed acted in a timely way in terms of enforcement of these orders.  The orders were made in August, 2001 and there was no payment pursuant to those orders by the respondent.  The matter came before the Court again on Ms [Mountford’s] application for enforcement of the orders less than 12 months after the original orders were made.  The respondent before me now did not appear in answer to that application and there was a warrant for his arrest issued.

   29.There was a third hearing on 19 February, 2002 when the applicant appeared before Rimmer FM by video link from Melbourne.  He was told to bring an application, as he said he would, for variation or discharge of the child maintenance order.  There was a time limit put on his ability to do that but he did not do it.

   30.The matter came on 21 June, 2002.  There was nothing filed by Mr [Clifford] and orders for enforcement were made.  It was not until the Sheriff commenced to put those orders into affect that Mr [Clifford] was moved to do anything.

   31.On 30 January, 2003, Mr [Clifford] applied to the Court on an urgent basis for orders that execution by the Sheriff be stayed.  That he applied urgently for a stay of execution must necessarily carry with it, either expressly or by implication, the notion that the Sheriff was indeed attempting to execute the orders or threatening to do so.  The matter was not dealt with ex parte but was dealt with on notice and ultimately ended in orders being made by Baumann FM on 30 October, 2003.

   32.After those orders were made the respondent applied before me for orders that discharged the orders for child maintenance.  Those proceedings were commenced by him on 2 April, 2004 and were heard by me on 4 November, 2004, and determined by orders delivered by me on 11 April, 2005. 

   33.To attempt execution, in accordance with Baumann FM's orders or Rimmer FM's orders, while that application was on foot, or while the decision on that application was reserved, would no doubt have immediately been met with an application for stay and so one could reasonably predict that no enforcement proceedings were persisted with while that application remained outstanding.

   34.After the orders of 11 April, 2005 were delivered the respondent brought further proceedings which were determined by my orders in August, 2006.  After those orders were delivered the respondent brought the application that was dealt with by Warnick J in the Full Court of the Family Court of Australia on 19 December, 2006. 

   35.It is simply not right to say that either Ms [Mountford] or the applicant in the proceedings now before me have sat back for the past five years and done nothing.  Such an assertion is completely contrary to the chronology of events that have unfolded since August, 2001 and pay no attention to the measures to which the respondent has resorted to have the orders of August, 2001 set aside.  The second basis upon which the respondent relies to establish an abuse of process is not, in my view, made out.

   …

   38.Finally, the respondent says that not to grant him a permanent stay would be an abuse of process because both children involved are now over 18 and both left home when they were about 16 and the mother has not shown any current need for the very large amount of child maintenance she is said to be owed.  He argues, both in his affidavit and orally, that the mother would now receive a windfall profit which is something, he says, that child maintenance is not supposed to be.

   39.In my view, the receipt by the mother of the arrears as a lump sum will not be a windfall – but merely the receipt by her of what she is lawfully entitled to receive.  Even if the lump sum can be characterised as a "windfall", then it is not a windfall that has come about through anything that she has done, but rather a windfall that has itself been generated by the respondent's own actions, that is his failure to pay the stipend which was ordered in August, 2001.  To suggest that the enforcement of child support of child maintenance arrears should not occur simply because it would result in a "windfall" to the party entitled to the payment would, if taken to its logical conclusion, mean that any arrears sought to be recovered by way of lump sum would be unrecoverable.  In my view, there is nothing in the argument, and the fifth ground to establish an abuse of process also fails.

Submissions of the appellant

1. The first 19 paragraphs and those between paragraph 46 to 63 of the submissions dated 4 October 2007 are devoted to the history of the matter and why the order made on 14 August 2001 and the following orders should not have been made. These submissions are of no relevance to the judgment from which this appeal arises.

2. The appellant submits that in relation to the date of separation the learned trial Judge made an error of fact in his reasons for judgment of 25 August 2006 when after an examination of the evidence that was before Rimmer FM on 14 August 2001, his Honour stated at paragraph 48:

   48.On the evidence before Rimmer FM, no conclusion other than that the date of separation was in 1989 or July 1989 was open. …

3. The appellant submits that he has “new evidence” to establish that the parties separated in December, 1990 not July, 1989 (para 20).

4. The appellant submits that in December 2000, the Family Court sent the second respondent to the Child Support Agency (CSA) for an assessment. The appellant asserts that the second respondent supplied false information to the CSA in connection with the parties’ date of separation and her marital status. It is further submitted that the CSA failed to advise the appellant of the second respondent’s application for assessment and that he was unable to respond to the contents of the application or correct the errors.

5. It is submitted by the appellant that the children who are the subject of this maintenance order left their mother’s home upon attaining 16 years of age.

6. The reasons given for leave to be given and the appeal allowed include the following which I summarise:

   ·Discrimination, denial of natural justice and equity (para 23, 24 & 28);

   ·A denial of the appellant rights pursuant to s.51(xxxi) of the Australian Constitution being that “a citizens property cannot be taken on unjust terms”.

7. In paragraph 27 the appellant said:

   The Attorney Generals of all states and territories will be invited to assist in the determination of this constitutional issue.

8. On 20 November 2007 the Regional Appeals Registrar wrote to the appellant directing that the appellant:

   …file by no later than 4 December 2007, an affidavit evidencing your service of the notice on the Attorneys General that you have served.

9. On 4 December 2007 the appellant filed an affidavit. In reference to service upon the Attorneys General the appellant advises:

   I confirm that a notice regarding the breach of the constitution in this matter has been forwarded to the Attorneys-General of each state and territory. …

1. Responses have been received from the Attorney General of the Australian Capital Territory and New South Wales advising that they did not wish to intervene in the matter. The Court made inquiries of the remaining Attorneys General and to date no State or Territory has indicated they wish to intervene, nor does the Commonwealth. The grounds of appeal do not raise any argument which properly understood could concern the Constitution.

2. In relation to the appeal ground that the Federal Magistrate should have disqualified himself it was submitted that the Federal Magistrate made an error in relation to the date of separation and that he deliberately delayed giving judgement.

3. Ultimately the appellant submitted:

   67.Alternately, the applicant seeks that Justice May be disqualified from this case due to bias and the comments that this case is a substantial cost to the tax payer, and that the Applicant can not go back before Judge Warnick’s decision.

4. In conclusion the appellant seeks that the appeal be upheld and that a costs order be made in favour of the appellant and in the alternative the following:

   1.That the Court refer the matter to the CSA for a decision;

   2.That a date for a hearing be set so that the appellant can present his case before three judges in Melbourne; and

   3.That Justice May be disqualified due to bias.

5. Leave was given to the appellant to file submissions in response to those of the respondent, they were filed on 15 November 2007.

6. Although no application has been made to amend the application or proposed Notice of Appeal, for the first time the appellant declares that he “appeals against all orders, not only an order of Jarrett FM.”

7. To some extent these submissions repeat the earlier complaints including that the appellant was not served with applications and orders. Criticism is made of the judgment of Warnick J from a previous appeal of the appellant and various errors of the law are said to have been made by Federal Magistrate Jarrett:

   23.There was a fully detailed submission as to why Jarrett FM should have disqualified himself. No honest person could state that I have failed to impugned the decision of Jarrett FM of April 2007.

Submissions of the first respondent

1. At the outset of his submissions filed on 13 June 2007 the first respondent explained that he has been appointed by the Federal Magistrates Court as the Trustee for Sale of the appellant’s real property pursuant to orders made 30 October 2003.

2. The first respondent did not wish to make any further submissions with respect to the appeal other than by providing a helpful chronology of the litigation.

Submissions of the second respondent

1. A response was filed on behalf of the second respondent on 7 June 2007 seeking that the appeal be dismissed and an order for costs. The affidavit filed on the same day provides a comprehensive history of the litigation and orders made.

2. The second respondent submits in written submissions filed 24 October 2007 that the appellant’s outline of argument asserts the appeal should be successful because of the following:

   (a)the decision at first instance by Rimmer FM contained an error of fact and/or law and the subsequent decisions of Jarrett FM of 25 August 2006 and 21 March 2007 failed to correct the error alleged to have been made by Rimmer FM;

   (b)from time to time the Father was unrepresented or not present when Orders were made against him;

   (c)there exists fresh evidence in support of his contention that the original order was factually incorrect;

   (d)that enforcement of the judgment regularly obtained against him would amount to a windfall to the Mother;

   (e)the primary Orders herein are contrary to the terms of the Commonwealth Constitution;

   (f)the Child Support Assessment Agency has seen fit to give the Father an assessment upon the factual basis he advocates, the Orders of the Court are invalid; and

   (g)for various other reasons including those personal to the Father, the enforcement should not be allowed.

3. In relation to the date of separation it is submitted that the appellant did not commence agitating the separation date issue until the proceedings that were before Jarrett FM on 25 August 2006. At paragraph 52 of the judgment the learned trial Judge said:

   52.I agree that if the applicant's present version of events is to be accepted, arguably the orders of 14 August, 2001 were made without jurisdiction.  But the onus is on him to establish on the balance of probabilities that separation was at some time other than that alleged by the respondent before Rimmer FM.  On the evidence, he does not discharge that onus.  In the past, he has alleged that separation occurred in 1989.  There is no reason, in my view to accept his uncorroborated testimony over the respondent's uncorroborated testimony.  He fails to discharge the onus of proof on him.

4. The second respondent submits that the separation date issue was again raised when the appellant sought leave to appeal the orders of 25 August 2006 before Warnick J in the Full Court on 16 November 2006. At paragraph 34 of his reasons for judgment published 19 December 2006 Warnick J said:

   34.…It seems to me that it is far from a foregone conclusion that, as a matter of fact, the father could establish on appeal that s 66E of the Family Law Act had application to him at the time the primary order was made.

   and then in conclusion Warnick J said:

   The father’s prospects on appeal are poor. Before Rimmer FM the evidence about the date of separation may well have been clear and such that no issue arose;

   At the highest, the father has an argument that Rimmer FM determined the date of separation to be 1990, but as Jarrett FM observed, contrary views that she did not are available, and as noted, the father has already lost that argument before Jarrett FM.

5. The second respondent submits that the separation date has been pursued to the fullest extent and has been resolved against the appellant. It is submitted that should there be any further consideration of the separation date issue then the appellant in an affidavit sworn on 17 February 2004 and filed on 4 April 2004 advised that co-habitation occurred between 1985 and 1989. This evidence was referred to in Jarrett FM’s reasons for judgment at paragraph 50:

   50.On 17 February, 2004 he swore that: "The applicant mother and I were in an "on again off again" relationship from approximately 1986 to 1989.  The mother then moved from Victoria to Queensland with the children […] in 1990…"

6. It is further submitted in relation to evidence of the date of separation that the second respondent had sworn inconsistent statements but that had been specifically dealt with by the learned trial Judge at paragraph 49 of the reasons for judgment:

   49.At the hearing before me it was proved that the respondent has sworn affidavits in the past wherein she deposed that the parties separated in August, 1990.  Exhibits 1 – 5 all contain statements by her to that effect.  They are all plainly inconsistent with what she swore in the applications for maintenance to which I have earlier referred.

   And further at paragraph 61:

   61.… Whilst it is true that on other occasions the respondent had sworn to different dates of separation, I am not able to find that the parties did not separate in July 1989 as she alleges in her maintenance application filed on 4 December, 2001.

7. The submission that: “The time and opportunity has now passed for such matters to be raised or re-agitated by the Father”(para 22) is clearly correct.

8. The second respondent submits that the appellant makes reference to ‘new evidence’ but does not particularise what that evidence is.

9. It is submitted by the second respondent in relation to the appellant’s assertion that the further enforcement of the original orders should be characterised as a windfall to the second respondent that this assertion fails to recognise that the second respondent has borne the financial responsibility for caring for the children since separation without assistance from the appellant and that such amount is more accurately characterised as a slow and deliberate accretion brought about by the appellant’s own actions. It is further submitted that the order sought to be enforced is the accumulated effect of a periodical payment order which has been contravened by the appellant and that it is not in the nature of a lump sum child maintenance order but accumulation of arrears which is effectively sought by way of a lump sum. These assertions are clearly correct.

10. In relation to the constitutional argument and the Commonwealth Constitution Section 51(xxxi), the second respondent submits that such argument is misconceived. Section 51(xxxi) deals with the acquisition of property by the Commonwealth and the enforcement of the order in this case, is not in the character of a compulsory acquisition for property by the state.

11. The second respondent submits that the assessment that was made by the CSA could only have been made on the construction of facts as advocated by the appellant which have been determined against him by the Court. It is further submitted that the fact that the CSA have made an assessment in the matter is irrelevant to the present proceedings because the Act applied and that such assessment has no standing at law.

12. In conclusion the second respondent submits that the appellant does not appear to raise any argument that the learned trial Judge should have disqualified himself other than that he found against the appellant. Further, that the appellant does not raise a lawful basis which would stay the enforcement of the orders made and that the appeal should be dismissed.

Appellate principles

1. It is appropriate at this stage to identify the principles governing an appeal such as this from a discretionary judgment. The law in this respect is not in doubt.

2. In Australian Coal and Shale Employees Federation v The Commonwealth (1953) 94 CLR 621 at 627, Kitto J describes the appropriate level of restraint that an appellate court should exercise in respect of discretionary matters as follows:

   There is a strong presumption in favour of the correctness of the decision appealed from and that that decision should therefore be affirmed unless the Court of Appeal is satisfied that it is clearly wrong.

3. It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:

   It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.

4. Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing Jarrett FM’s discretionary decision consistent with these principles. As was explained by Kirby J in AMS v AIF (1999) FLC 92-852 at 86-043:

   [A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved.  Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.

Conclusions

1. It is appropriate that I deal first with the assertion in the written submissions of the appellant that I am biased and should disqualify myself.

2. Whilst it is always difficult for Judges to decide objectively whether they are biased in a matter, in this case it could not be said that an observer might conclude that I would not bring an impartial and unprejudiced mind to the application and appeal when, after three adjournments, reference is made to the tax payer who after all funds indirectly the work of the Court and where one party is funded from the same pool. Whilst ensuring that litigants are heard, the concept of proportionality is also important to ensure fairness to all parties and the proper administration of justice.

3. The appellant has failed to demonstrate an error in the judgment of Federal Magistrate Jarrett.

4. The appellant has not demonstrated any grounds upon which he could successfully argue the appeal. Consequently there is no purpose in giving leave and no support for any argument that the order for child maintenance be permanently stayed.

I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate: 

Date:  12 December 2007