Cuthbert and Cuthbert - [2009] FamCAFC 65

FAMILY COURT OF AUSTRALIA

CUTHBERT & CUTHBERT

[2009] FamCAFC 65

FAMILY LAW – APPEAL – FROM DECISION OF FEDERAL MAGISTRATE – Application for permission to appeal – Appeal centred on questions of child support assessment, departure and liability – Respondent to the application for permission to appeal was the administrator of the husband’s estate, the husband having passed away soon after the Federal Magistrate’s decision – Applicant failed to file material in compliance with procedural orders – Respondent filed an application for dismissal – Discretion to dismiss the application raised issues of significance of non-compliance, prospects of success on appeal and prejudice to the respondent – Parties had previously settled a Deed of Compromise in the State Courts which included a term that no further action be taken in the Family Court – The state of the husband’s estate raised issues of whether any significant result could be achieved on appeal – Several matters under the Child Support (Assessment) Act presented hurdles to any success on appeal – Utility of appeal and prospects of success assessed as poor – Application for permission to appeal is dismissed

Child Support (Assessment) Act 1989 (Cth) ss 12(3), 31(d), 116, 142
Family Law Rules 2004 (Cth) Rule 22.45
Federal Magistrates Court Rules 2001 (Cth) Rules 13.03; 25A .02;

APPLICANT:

Ms CUTHBERT

RESPONDENT:

Mr CUTHBERT

FILE NUMBER:

TVM

3284

2002

APPEAL NUMBER:

2007

DATE DELIVERED:

23 April 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Warnick J

HEARING DATE:

17 April 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

7 December 2006

LOWER COURT MNC:

[2006] FMCAfam 752

REPRESENTATION

APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Dickson

SOLICITOR FOR THE RESPONDENT:

Dillons Lawyers

Orders

That the application of the mother for permission to appeal the orders of Coker FM made 7 December 2006, be dismissed.
That the hearing date of 12 May 2009 be vacated.
That the mother pay the costs of the respondent of and incidental to the application for permission to appeal the orders of Coker FM made 7 December 2006, including reserved costs, as agreed and in default of agreement, as assessed.

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

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 18 L of 2007
File Number: TVM 3284 of 2002

Ms CUTHBERT

Applicant

And

Mr CUTHBERT

Respondent

REASONS FOR JUDGMENT

On 7 December 2006, an application brought by Ms Cuthbert, to do with child support of the two children of herself and Mr Cuthbert, came before Federal Magistrate Coker. The exact ages of the two daughters at that time are not before me, but one was over the age of 18 years, and the other was 17 years. The father was the respondent to the mother’s application. His Honour summarily dismissed the mother’s application, on the father’s request.
After obtaining an extension of time, the mother sought permission to appeal Coker FM’s decision. By the time she did so, the father had died (on 24 December 2006, 16 days after Coker FM’s decision). The respondent to the mother’s application for permission to appeal is Mrs A Cuthbert, the father’s widow and now administrator of his estate.
The application with which these reasons deal is that of the administrator, seeking that the mother’s application be dismissed because of non-compliance with orders in relation to preparation of the application for hearing. Dismissal in such circumstances is a serious step. The rule (r 22.45, Family Law Rules 2004) that gives power to dismiss does not prescribe criteria for its application. However, in my view, the discretion here involves consideration of:
·the prospects of success of the proposed appeal and its utility;
·the significance of non-compliance with directions for preparation of the application for permission to appeal; and
·prejudice to the administrator.

Prospects of success on appeal and its utility

A brief historical detail will put the proceedings before Coker FM in a broader context. The mother and father had separated in 1992 and there was a property settlement at that time (though not necessarily enshrined in court orders). The parents divorced in 1997. In October 2002, the mother filed an application to proceed out of time for orders for property settlement and spousal maintenance. Coker FM had apparently dealt with that matter and dismissed the application on 24 February 2003.
In the December 2006 hearing, counsel for the father told the Federal Magistrate that child support issues had also been raised by the mother in 2002/2003. I do not know the accuracy of that information. Coker FM does not rely on it in his reasons for the order of 7 December 2006.
Coker FM did record in his reasons given that day that the mother’s application sought both interim and final orders. His Honour set out the 25 interim orders sought. The first order sought a departure “from the Child Support (Assessment) Act”. The third sought a payment from the husband of $25,000.00 forthwith. Much of the balance of the application sought orders that might broadly be described as restraints, designed to secure funds pending final orders. The objects of the restraints were by no means confined to the husband but included officeholders of named corporations, the husband’s then wife, Australia Post and Western Union, the husband’s solicitors, and a former partner of the husband. The mother also requested the issue of subpoenas to various objects, including many of those against whom restraints were sought.
Of his reasons for dismissal, Coker FM said:
6.…It is submitted to me that the Application is flawed. It is an application brought by the mother, at least on an interim basis against the father, seeking in the first instance a departure from the Child Support Assessment in relation to payments to be made for the children.
7.The evidence that is required to be placed before the Court is not before the Court. The first of those is confirmation of in fact the date upon which departures or objections were conducted and the normal procedure is also the provision of the outcomes, in other words the determination, of the senior case officer. That has not been provided. There are however other issues that need also to be addressed.
Here, in my view, it is obvious that the learned Federal Magistrate is referring to s 116 of the Child Support (Assessment) Act (“the Assessment Act”) which at the time of the judgment provided:
116 Application for order under Division
(1)Subject to subsection (1A), application may be made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case.
(1A)A person may not make an application under subsection (1) based on paragraph 115(b) in relation to the making of, or refusal to make, a departure determination unless:
(a)an objection to the making of, or the refusal to make, the departure determination has been lodged under section 98X; and
(b)The Registrar has either disallowed the objection or has allowed it in whole or part.
…
Rule 25A.02 of the Federal Magistrates Court Rules also operated to require that, in respect of her application, the mother file:
(a)an application in accordance with the form of child support application for departure order set out in Part 1 of Schedule 2; and
(b)the documents mentioned in this column in item 1; and
(c)a completed financial statement in accordance with the form of financial statement set out in Part 1 of Schedule 2
The documents mentioned in the “column in item 1” were:
an affidavit setting out the facts relied on in support of the application or appeal, attaching:
(a)a schedule setting out:
(i) the section of the Assessment Act or Registration Act under which the application or appeal is made; and
(ii) the grounds of the application or appeal; and
(iii) the issues to be determined in the proceeding; and
(b)a copy of any decision, notice of decision or assessment made by the Child Support Registrar relevant to the application or appeal; and
(c)a copy of any document lodged by a party with the Child Support Registrar, or received by a party from the Child Support Registrar, relevant to the decision or assessment.
The mother does not point to any material to show that Coker FM wrongly assessed the degree to which the mother had failed to comply with the rules and failed to demonstrate that she was entitled to rely on s 116 of the Assessment Act.
In the face of those failures it may well be that, considering only them, his Honour could have adjourned the mother’s application to give her an opportunity to remedy them (if they were capable of remedy, which was not obviously established before his Honour).
However, another option may have been to “end the proceeding” under rule 13.03 of the Federal Magistrates Court Rules as they then stood. (I express no opinion on whether such a step would have equated dismissal.)
In any event, Coker FM dealt with the father’s request as one for summary dismissal and went on to assess the mother’s affidavit evidence. He said:
8.The mother's material in its entirety is based on her assumptions, or speculation, in relation to the respondent and his financial circumstances. As I say, whilst I accept that she might quite possibly and probably assess that those moneys, that she says are available to the husband, are available, there is not a skerrick of evidence available in relation to these proceedings.
9.It is necessary in a Court to produce evidence. A onus falls upon an Applicant in relation to the production of evidence. It is, I must say, extremely unfortunate that the applicant does not have assistance, for example, through Legal Aid or other community groups that might be able to provide assistance in relation to such proceedings. But what is clear, is that for there to be any Application made, and it must of course follow the procedure set out within the Child Support Act, there is a requirement that there be evidence, in relation to proceedings.
10.The applicant makes reference to a multitude of matters, which are, understandably of concern to her. There are suggestions of overseas trips by the husband, of living a high life, if I can describe that way, in relation to meals, entertainment, and other activities. There are suggestions of very significant assets held by, or in the name of another on behalf of, the husband.
11.There are suggestions in some of the material of enormous overseas bank accounts and hidden assets. The applicant, in fact, in the material makes specific reference to the husband's family's net worth. In paragraph 48 she says, the respondent grew up in Rhodesia where his family's net worth was reputably in excess of £20, 000, 000, but there is not any evidence whatsoever in relation to this matter.
12.Whilst the wife can speculate, as she does in relation to proceedings, it would be the gravest of errors on the part of the Court to, in answer to an Application, accept speculative evidence. I cannot and I will not do so. Whilst as I say, I have sympathies for the wife in relation to the circumstances that she finds herself in, and the obvious difficulties in relation to obtaining evidence in relation to the proceedings, it must be the case that without such evidence, the wife's Application is fatally flawed.
13.In any event, as I have indicated before, the evidence that must be before the Court in relation to the objection and departure procedure required before the Child Support Agency is not before the Court. Whilst the wife may not have the legal knowledge and expertise that is vested in the legal representatives for the respondent, it is unfortunately, still not an excuse in relation to the non-compliance with the regulations and rules of Court, which must be complied with.
14.There is no basis upon which the material that is before the Court, or the Application currently before the Court, can proceed and in the circumstances I have no alternative but to dismiss the Application of the wife and I so order.
The proposed grounds of appeal are as follows:
1.That Justice Coker ignored and made no acknowledgement of evidence of fraud and deceit on the part of the deceased respondent in his understating his income and assets to the detriment of the applicant and her children.
2.That Justice Coker failed to exercise his discretion to waive a letter of objection to the C.S.A., despite acknowledging at the outset of the hearing that he had the power and authority to do so.
3.That Justice Coker neglected his judicial authority and responsibility to exercise the fundamental principle of the Family law Act that requires that the interests and welfare of the children be paramount.
Ground 3 is misconceived, in that the proceedings were not for parenting orders, but were in relation to matters arising under the Assessment Act.
Ground 2 firstly involves the mother’s suggestion that the Federal Magistrate said at the outset of the hearing that he had power and authority to waive a letter of objection to the Child Support Agency. The mother says that the transcript of proceedings on 7 December 2006 is deficient in that it does not show such an exchange. I think it highly likely that the mother is overlooking that part of the transcript that follows:
[MS CUTHBERT]: What do I do? I know you have to do the law, but surely the primary purpose of this Court is the welfare of the children. Surely, there’s something that could be done here. There’s cases I’ve been reading – there are cases like cover like more – I’m sure I’ve read somewhere here that you have the discretionary power to make exemptions.
FEDERAL MAGISTRATE: I do. I do. But what I’m saying is there are procedures that must be followed before I can exercise any powers, and there is no evidence that you have gone through the objection or departure procedures.
However, whether that is the exchange that the mother had in mind or not, and whether another exchange to the effect for which the mother contends occurred or not, the question more relevant to the ground of appeal is whether the learned Magistrate’s exercise of such discretion as he had was wrong. The mother really presents no argument as to why it was.
As to ground 1, as seen from his reasons for judgment, the Federal Magistrate addressed the evidence and particularly the quality of the evidence which the mother had before the court on 7 December 2006. I have perused the mother’s affidavit material that was before Coker FM on 7 December 2006. Nothing I have read makes it likely that the learned Magistrate’s assessment of the quality and adequacy of her evidence was in some way flawed.
There is another matter, extraneous to the grounds of appeal, but in my view relevant to the mother’s prospects of success.
There were proceedings in the Supreme Court to do with the estate of the father. Before me, is a copy of a Deed of Compromise of those proceedings.
The Deed was entered into by the administrator, the mother and her daughters on 10 October 2008. In the preamble, the intestacy of the father is recorded, as is the lodgement of a caveat in respect of the estate by the mother and a contest between the daughters and the administrator for appointment as administrator. The proceedings before Coker FM in the Federal Magistrates Court and the application for permission to appeal to this court are also noted. Terms of the Deed provide that:
7.[Ms Cuthbert] will discontinue the Federal Magistrates Court/ Family Court of Australia proceedings and will not make any further claim against the estate of the deceased for property settlement and/or maintenance for herself or on behalf of [the children].
8.[The children] will not make any further claim against the estate for child support and/or maintenance whether under the provisions of the Family Law Act 1975 (Cth) or the Succession Act 1981 (Qld) or under any other act, regulation or any other law to the intent that the payment to each of them and the delivery of chattels and the payment of certain expenses as hereinafter provided will be in full and final settlement of all right, title and interest of [the children] in and to the estate and to the intent that the remainder of the estate shall belong to [Mrs A Cuthbert] absolutely.
9.Upon the signing by all parties hereof, from funds presently held in trust for the estate by DILLONS Solicitors there will be paid:-
(a)to [the child J] the sum of Forty thousand dollars ($40,000.00)
(b)to [the child C] the sum of Forty thousand dollars ($40,000.00)
and each of [Mrs A Cuthbert, and the children] authorises Dillons to make those payments accordingly.
…
14.Each of the parties acknowledge that she has entered into this Deed after proper consideration and judgment and each for herself fully understands the terms, condition and provisions hereof and is satisfied that such terms are fair, just and reasonable.
15.Each of [Ms Cuthbert and the children] acknowledges for herself that she has decided not to be represented by or take advice from a solicitor in relation to the negotiation and preparation of this Deed.
Mr Dickson, counsel for the administrator, indicated that the administrator will ask, in a form of pleading to be finalised, that the mother’s application for permission to appeal not be permitted to proceed, because of the terms of the Deed. On the face of it, the Deed seems a significant impediment to the mother’s application being pursued to success.
Before me, the mother sought to say that the Deed was founded on some incorrect basis, a failure to disclose information, fraud or the like. I indicated to her the tentative view that on its face the Deed was valid until a court said otherwise. The mother responded that she would take proceedings in the Supreme Court to have the Deed in some way set aside.
As to the utility of the proposed appeal, the orders sought by the mother in the Notice of Appeal are in many ways similar to those sought as interim orders before Coker FM. Again, the objects of those orders are numerous people, most of whom are not parties to these proceedings nor were to the proceedings before the Federal Magistrate. There are thus obvious problems with those parts of the mother’s proposed appeal. Perhaps the central order now sought is:
8.That the Court issue a final order declaring a debt of $1,370,466.74, is owed to the applicant from the deceased respondent’s estate and that the court order the immediate enforcement of the payment of this debt with the applicant being a priority creditor of the deceased respondent’s estate.
I note that in the answer to counter-claim in the schedule to the Deed, the total gross assets of the estate are estimated to be $252,236.78. The costs of the estate administration and the Supreme Court proceedings were estimated to be of the order of $100,000.00 and there were some other liabilities totalling around $40,000.00 in respect of legal fees for the husband during his lifetime. As earlier noted, between them the mother’s daughters received $80,000.00 from the estate. If these figures are anywhere near correct, the prospects of the mother achieving a monetary result of any significance seem remote.
There may well be a further impediment to the orders sought in the proposed appeal. As seen, the father died shortly after the orders appealed were made. Pursuant to s 12(3) of the Assessment Act, the death of the father was a “child support terminating event”.

Section 31(d) of that Act, as it was in December 2006, sets out the period for liability to pay child support:
(d) the child support is payable in relation to the days in the period:
(i)beginning on the day on which the application was made to the Registrar; and
(ii)ending on the day immediately before the day on which a child support terminating event happens in relation to the child, the carer entitled to child support, the liable parent or all 3 of them.
Moreover, s 142 of the Assessment Act provides:
142 Cessation of orders under Act
(1)Where an order made under this Act is in force in relation to a child and:
(a) a child support terminating even happens in relation to the child; or
(b) if there is a carer entitled to child support and a liable parent in relation to the child—a child support terminating event happens in relation to the carer entitled to child support, the liable parent or all 3 of them; or
(c) if there is not a carer entitled to child support and a liable parent in relation to the child, one of the following events happens:
(i)the person on whose application the order was made:
(A)dies; or
(B)ceases to be an eligible carer of the child;
(ii)the person against whom the order was made:
(A)dies; or
(B)ceases to be a resident of Australia;
the order ceases to be in force.
(2)Nothing in this section affects the recovery of arrears due under an order when the order ceases to be in force.
Whether this section has any application to the mother’s claim is difficult to gauge. Perhaps the mother’s monetary claim could be construed as one for a retrospective departure, not from orders, but from assessments operating over some years before she filed her application in the Federal Magistrates Court. If such retrospective orders were made, perhaps arrears could be said to have accrued under them before the father’s death. But the basis of the mother’s claim before Coker FM and for orders on the proposed Notice of Appeal is quite unclear.
I assess the prospects of the mother showing error in the summary dismissal of her application by Coker FM as poor. The prospects of the mother achieving any useful result, even if she could show error, are also very poor.

The significance of non-compliance with directions in respect of the application for permission to appeal

The progress of the mother’s application in this court was initially delayed pending the appointment of an administrator and the resolution of other issues in the Supreme Court.
However, once the administrator was appointed, on 2 February 2009, the mother was ordered to file a list of documents upon which she would rely in the application and proposed appeal by 4.00pm on 20 February 2009. She was to provide to the Court and the respondent the transcript of evidence of the proceedings before Coker FM on 7 December 2006 by Friday, 13 March 2009. The mother was to file a Summary of Argument by 4.00pm Friday, 17 April 2009.
As at the day I heard the application by the administrator, the mother had failed as ordered to file an index of documents to be relied upon and had failed to file the transcript, although transcript in fact has been available for some time. Neither of these failures seemed incapable of prompt remedy. However, in this instance, given the unhelpful content of the Notice of Appeal, the Summary of Argument was the only prospect of informing the administrator and the court of the true nature of the appeal and the orders that could be usefully sought.
The mother’s explanation for non-compliance raises her personal and family circumstances. I find her contentions quite unpersuasive.
On 22 April 2009 the mother attended at the Registry to file an index of documents and a Summary of Argument. Today, 23 April 2009, the day nominated for delivery of judgment, I permitted the mother to file these documents, and I had regard to them in considering the application before me, before I made the orders to which these reasons relate.
The Summary of Argument not only adds no clarity to the basis of claim by the mother, but appears to refer to matters - such as the Child Support Agency’s contention that she was not, in 2006, eligible to receive child support because the children did not live with her – which would only diminish whatever prospects of success her claim may have had.

Prejudice to the administrator

There is considerable prejudice likely to the administrator if the mother’s application remains afoot. I am satisfied that the mother could not be ready to proceed on 12 May 2009, the date allocated for hearing. Thus, the finalisation of the administration of the husband’s estate will be delayed. Firstly, the wife indicates that she wishes to take proceedings in the Supreme Court to set aside the Deed of Compromise. It seems that her first thought about such proceedings was when the Deed of Compromise was tendered before me, leading to the discussion indicated. Secondly, the mother wishes to listen to the recording of the evidence before Coker FM. This may cause delay.
The mother has indicated that she is able to pay costs of the administrator’s application for dismissal, if ordered, by obtaining money from her daughters. She has also filed an undertaking that she will pay any orders for costs made in the appeal. However, all of her material is to the effect that it is unlikely she could make such a payment from her own resources. She might again look to her daughters. But, there must be a risk that, if the application or appeal fails, the administrator will not be able to recover costs.

Conclusion

Consideration of the prospects on appeal, the utility of the appeal, the significance of non-compliance, the unsatisfactory explanation for it, and the possible prejudice to the administrator arising from delay and continuation of the application, all point in favour of its dismissal.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick.

Associate:

Date: 23 April 2009