Cutler& Lester - [2007] FMCAfam 563

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CUTLER& LESTER

[2007] FMCAfam 563

CHILD SUPPORT – Amendment of application to include period between two periods nominated in original application – costs of adjournment.

Child Support (Assessment) Act 1989, ss.98B, 111, 112, 116
Family Law Act 1975, s.117

Applicant:

MS CUTLER

Respondent:

MR LESTER

File Number:

MLM 10601 of 2006

Judgment of:

Riley FM

Hearing date:

1 August 2007

Date of Last Submission:

1 August 2007

Delivered at:

Melbourne

Delivered on:

14 August 2007

REPRESENTATION

Counsel for the Applicant:

Mr Indovino

Solicitors for the Applicant:

Westminster Lawyers Pty Ltd

Counsel for the Respondent:

Mr Dickson

Solicitors for the Respondent:

Moores Legal Pty Ltd

DECLARATION

Pursuant to s.45 of the Federal Magistrates Act 1999, it is in the interests of the administration of justice that interrogatories be allowed in this proceeding.

ORDERS

The court has leave pursuant to s.112 of the Child Support (Assessment) Act 1989 to make an order under s.118 of the Child Support (Assessment) Act 1989 in respect of the period 1 January 2002 to 14 December 2005.
The applicant has leave to amend the application filed on 20 December 2006 in accordance with the proposed amended application filed on

31 July 2007
.
The further hearing of the application be adjourned to 20 December 2007 at 10.00am for final hearing before Federal Magistrate Hartnett (with an estimated hearing time of 2 days).
The applicant file and serve any further affidavit to be relied upon on or before 30 November 2007.
Each party file and serve an affidavit of all relevant documents in his or her possession or custody or power on or before 31 August 2007.
Each party provide inspection of documents on or before 14 September 2007.
Each party have liberty to administer to the other party interrogatories concerning financial matters on or before 12 October 2007.
Each party provide sworn answers to interrogatories on or before
9 November 2007.
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the fees”) not having been waived, the party responsible for the payment of the fees or any of them pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The parties’ costs of today be reserved.

NOTATION

A.In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLM 10601 of 2006

MS CUTLER

Applicant

And

MR LESTER

Respondent

REASONS FOR JUDGMENT

In this matter, orders were made on 1 August 2007 giving the applicant leave to amend her existing departure application in respect of the periods 1 July 2000 to 31 December 2001 and 15 December 2005 to

31 January 2007
to include the period 1 January 2002 to 14 December 2005. As a result of leave to amend being granted, the respondent sought an adjournment of the hearing and sought an order for his costs thrown away on 1 August 2007. The adjournment was granted and costs were reserved. The respondent has now sought reasons for the applicant being given leave to amend and for the costs being reserved.
In general, it is proper to allow an amendment to enable all the issues in dispute between the parties to be dealt with in court at the same time. This general approach results in efficiencies for the court and the parties. There are obviously exceptions to the general rule, such as where the subject of the proposed amendment is completely separate from the existing proceeding or where the proposed amendment would prejudice the other party in a way that cannot easily be remedied.
In the present case, counsel for the respondent opposed the amendment on the basis that material relevant to the period 1 January 2002 to

14 December 2005
was not before the court. Counsel for the applicant argued that the respondent should have put the material relevant to that period before the court pursuant to existing court orders with which the respondent had not complied. The prejudice identified by counsel for the respondent could obviously be cured with an adjournment to enable relevant material to be gathered. Accordingly, in my view, it is appropriate to give leave to amend, subject to the considerations mentioned below.
An unusual feature of the amendment application in this case is that the proposed amendment concerns a period that is more than 18 months and less than seven years ago. Sections 111 and 112 of the Child Support (Assessment) Act 1989 are relevant to this question and provide as follows:
111   Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1)A liable parent, or a carer entitled to child support, (the applicant ) may apply to a court having jurisdiction under this Act for leave for:
(a)the Registrar to make a determination under section 98S; or
(b)the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(2)Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a)     the applicant; and
(b)     either:
(i) the liable parent; or
(ii) the carer entitled to child support.
Registrar application
(3)The Registrar (the applicant ) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(4)The parties to the proceeding under subsection (3) are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child support.
112   Court may grant leave to amend administrative assessment that is more than 18 months old
(1)If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2)The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3)Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A)To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
Matters to be considered
(4)In considering whether to grant leave under subsection (1), the court must have regard to:
(a)     any responsibility, and reason, for the delay in:
(i)     making an application under section 98B or 116; or
(ii)     making a determination under section 98S;
as the case requires; and
(b)the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c)the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5)The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6)An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7)The period specified under subsection (6):
(a)must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b)is not limited by the terms of that application.
No requirement to make determination or order
(8)The granting of leave under subsection (1) does not imply that:
(a)the Registrar is required to make a determination under section 98S; or
(b)the court is required to make an order under section 118.
The court is required to have regard to certain matters in considering whether to grant leave under s.112 of the Child Support (Assessment) Act 1989. In relation to the responsibility and reason for the delay in making an application under s.98B or s.116, the applicant’s counsel said that the applicant had been unrepresented until very recently and made assertions from the bar table to the effect that the applicant had sought internal review of the relevant assessments but that the Child Support Agency had lost the records relating to the review. The respondent said from the bar table that there had been no review sought for the period 1 January 2002 to 14 December 2005.
In the absence of admissible evidence, I am unable to be satisfied that the applicant has sought internal review or when any internal review might have been resolved. I accept that being unrepresented may have hindered the applicant in properly formulating her application at the outset. However, the existing application was filed on 20 December 2006. On any view, there has been a considerable delay which has not been properly explained.
The next factors that the court is required to consider are the hardship to the applicant if leave is not granted and the hardship to the respondent if leave is granted. In this case, the applicant's principal allegation is that the respondent is in possession of a much higher income and substantially more assets than he has admitted. If those allegations are true and leave were not granted, the applicant would be deprived of a considerable sum. If leave is granted, the respondent will face the hardship of having to gather evidence and deal with a more extensive case than had initially been brought against him.
The court may also consider any other relevant matters. One such matter is the need for the child, whose support is at the heart of this case, to be properly provided for by both his parents. Another relevant factor is that there are existing proceedings in relation to a period prior to 1 January 2002 to 14 December 2005. Adding the new period to the existing proceedings would not require the respondent to gather material older than the material he is already required to gather.
It is accepted that the 12 month rule does not apply to child support proceedings. The legislation clearly encourages applicants to bring their proceedings promptly. However, the court’s power to give leave under section 112 is not restricted to cases where there is extreme hardship or compelling reasons explaining the delay.
In my view, it is proper to give leave under section 112 in the circumstances of this case where a proceeding concerning a period prior to the period in question is already on foot. For this reason also, if the applicant in fact has not had an internal review in respect of the period 1 January 2002 to 14 December 2005, I am satisfied under s.116(1)(b) of the Child Support (Assessment)Act 1989 that it is in the interests of the applicant and the respondent for the court to consider whether a departure order should be made in respect of that period.
In relation to costs, in civil litigation, a party who is given leave to amend and who thereby necessitates an adjournment is ordinarily ordered to pay the costs thrown away. However, s.117 of the Family Law Act1975 applies to this proceeding. One of the matters to be considered under s.117(2A) of that Act is the financial circumstances of each of the parties to the proceedings. The financial circumstances of the respondent primarily, but also the applicant, is the very matter that is to be resolved at trial. The court is unable to form a clear view about the financial circumstances of the parties at this stage. Accordingly, the court is presently unable to properly consider the matters that the legislation makes relevant in determining a costs order. For this reason, it is appropriate that the costs of 1 August 2007 be reserved.
Additionally, the applicant argues that the hearing could have proceeded on 1 August 2007, notwithstanding the amendment, if the respondent had produced the documents he was ordered to produce by Federal Magistrate Hartnett on 4 June 2007. The respondent through his counsel said that he was not in possession of many of the documents that he had been ordered to produce because they actually belonged to his present wife. For example, it was suggested that the contract of sale in relation to the property at Research was not the respondent's document because the property had been registered in the sole name of the respondent’s present wife. Nevertheless, the respondent's counsel indicated to the court that further documents could and would be produced in the near future. The effect on the hearing scheduled for 1 August 2007 of the respondent's failure to produce documents is a matter that can best be determined once all relevant documents and facts are before the court. For this reason also, it is appropriate that the costs of 1 August 2007 be reserved.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Riley FM

Associate:

Date: 9 May 2008