Eames & Eames
[2018] FamCAFC 204
•1 November 2018
FAMILY COURT OF AUSTRALIA
| EAMES & EAMES | [2018] FamCAFC 204 |
| FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Summary dismissal – Whether the primary judge erred in finding that the appellant’s application under s 66M of the Family Law Act 1975 (Cth) had no reasonable prospects of success – Where the appellant argued that there is a divergence of judicial opinion about the application of s 66M – Judicial comity and precedent – Where the primary judge correctly found that she should follow the Family Court decisions on the point – No error demonstrated. FAMILY LAW – APPEAL – CHILD MAINTENANCE – Step-children – Operation of s 66M of the Family Law Act 1975 (Cth) – Whether a standalone declaration or order can be made under s 66M – Where an order can only be made under s 66M when there is a concomitant application seeking specific orders for the maintenance of step-children. FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Summary dismissal – Whether the primary judge erred in finding that the appellant’s application under s 123 of the Child Support (Assessment) Act 1989 (Cth) had no reasonable prospects of success – Where the appellant failed to particularise his application for a substitution order pursuant to s 123 – Whether the primary judge failed to give adequate reasons for summarily dismissing the application – Whether the primary judge failed to take into account a relevant consideration – No error demonstrated. FAMILY LAW – APPEAL – CHILD SUPPORT – Leave to appeal – Test to be applied for leave applications pursuant to s 102 of the Child Support (Assessment) Act 1989 (Cth) – Application of the test in Medlow & Medlow (2016) FLC 93-692 at [57] – Where no error demonstrated – Leave refused. FAMILY LAW – APPEAL – COSTS – Where the application for leave to appeal and the appeal were wholly unsuccessful – Where the respondent seeks an order for costs on an indemnity basis – Where the appeal had no reasonable prospects of success – Where the claim made pursuant to s 66M of the Family Law Act 1975 (Cth) was made for a collateral purpose – Where the costs of the appeal were out of proportion to the issues involved – Costs ordered on an indemnity basis. |
| Child Support (Assessment) Act 1989 (Cth) ss 4(3)(a), 5(1), 46, 102, 117, 121, 122, 123, 124 Explanatory Memorandum, Child Support Legislation Amendment Bill 1998 (Cth) |
| Algoni Pty Ltd v Secretary, Department of Industrial Relations (1985) 3 NSWLR 515 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226 Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; [1993] HCA 15 Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124 Bassingthwaite & Leane (1993) FLC 92-410; [1993] FamCA 86 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 Carnell & Carnell [2006] FMCAfam 476 Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536 D & D (Costs) (No.2) (2010) FLC 93-435; [2010] FamCAFC 64 Ebner & Pappas (2014) FLC 93-619; [2014] FamCAFC 229 Facey & Facey [2001] FMCAfam 4 Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187; [1989] FCA 397 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397; [1988] FCA 202 General Steel Industries Inc vCommissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Gilmour and Gilmour (1995) FLC 92-591; [1994] FamCA 139 Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 JFF & JEC [2005] FamCA 1317 Kohan and Kohan (1993) FLC 92-340 La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201; [1992] FCA 452 Limousin v Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178 Lindon v The Commonwealth (No 2) (1996) 136 ALR 251; [1996] HCA 14 LP and DP & JM [2004] FamCA 1409 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Mulvena v Mulvena (1999) FLC 98-006; [1999] FamCA 280 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293; [2011] FCA 1126 Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325; [2012] FCAFC 97 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Spencer v The Commonwealth (2010) 241 CLR 118; [2010] HCA 28 Tilman & Baxter [2016] FamCA 141 Valentine v Eid (1992) 27 NSWLR 615 Viro v The Queen (1978) 141 CLR 88; [1978] HCA 9 W & W [2000] FamCA 92 |
| APPELLANT: | Mr Eames |
| RESPONDENT: | Ms Eames |
| FILE NUMBER: | MLC | 4509 | of | 2013 |
| APPEAL NUMBER: | SOA | 15 | of | 2018 |
| DATE DELIVERED: | 1 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Alstergren DCJ, Aldridge & Austin JJ |
| HEARING DATE: | 30 August 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 February 2018 |
| LOWER COURT MNC: | [2018] FCCA 315 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr P Hannan |
| SOLICITOR FOR THE APPELLANT: | Manby & Scott Lawyers |
| COUNSEL FOR THE RESPONDENT: | Dr R Smith |
| SOLICITOR FOR THE RESPONDENT: | Northcote Lawyers |
Orders
The application for leave to appeal against the orders made on 13 February 2018, insofar as they concern the application under s 123 of the Child Support (Assessment) Act 1989 (Cth), is dismissed.
The appeal is otherwise dismissed.
The appellant is to pay the respondent’s costs assessed in the sum of $16,558.50.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Eames & Eames has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 15 of 2018
File Number: MLC 4509 of 2013
| Mr Eames |
Appellant
And
| Ms Eames |
Respondent
REASONS FOR JUDGMENT
Introduction
Mr Eames (“the appellant”) appeals from orders made by Judge Bender on 13 February 2018 which summarily dismissed his proceedings against Ms Eames (“the respondent”).
The two substantive orders he sought in the application before the primary judge were:
1.From the date of these orders, in relation to the children [B Eames] (born … 2001) and [C Eames] (born … 2004) (the children) any monies paid by the applicant to third parties for purposes directly related the children’s transport, medical, education and living costs (up to $50 per week) be credited at an appropriate percentage against any child support otherwise payable by the applicant to the respondent regarding the said children.
2.The applicant be declared to have had a lawful duty to maintain [the step-children K and L] from 1 July 2015 onwards and that duty be duly quantified.
(As per the original)
The first order was sought pursuant to s 123 of the Child Support (Assessment) Act1989 (Cth) (“the Assessment Act”) and the second under s 66M of the Family Law Act 1975 (Cth) (“the Family Law Act”). The primary judge found that the appellant did not have any reasonable prospects of success of obtaining either order and dismissed the application under s 17A of the Federal Circuit Court of Australia Act1999 (Cth) (“the FCC Act”).
Background
The parties were married in 2000 and have two children, B and C, who were born in 2001 and 2004 respectively. The parties separated in early 2013.
Final parenting orders were made by consent on 13 October 2016. The orders provided for the children to live with the respondent, who has sole parental responsibility for them. Although the consent orders also provided for the children to spend time and communicate with the appellant, as agreed between the respondent and appellant in consultation with a counsellor, no such time has occurred and the children do not communicate with the appellant.
In 2015, the appellant re-partnered. His partner has two children, K and L, who were aged 12 and eight at the time of the hearing before the primary judge. Those children live primarily with the appellant and his partner.
Pursuant to a child support assessment dated 21 April 2017, the appellant was assessed to pay child support to the respondent in the sum of $576.18 per week for the period of 15 November 2016 to 14 November 2018.
On 14 November 2017 the Administrative Appeals Tribunal re-determined, in part, the parties’ assessed rate of income. No appeal has been taken from that decision.
The Appeal
The Notice of Appeal is drafted in a very unfortunate manner.
Each ground, in its first sentence, purports to identify an error and then proceeds in subsequent sentences to expand upon the ground in a discursive and argumentative manner at some length, providing submissions which at many points stray well beyond the asserted error.
Grounds of appeal should succinctly and precisely identify the errors said to have been made by the primary judge and not stray into submissions. The purpose of this requirement was explained by Kirby P in Algoni Pty Ltd v Secretary, Department of Industrial Relations (1985) 3 NSWLR 515 at 525 – 526 as follows:
Thus, the “grounds” of appeal, as required by the Supreme Court Rules 1970, involve a statement, in short point form, of the essential issues to be argued on the appeal. The reasoning and argument need not, indeed should not, be stated. The grounds must be identified with sufficient clarity and precision to fulfil their purpose. This is to alert the opponent so that he can prepare his case, to inform the court of the matters in contest and to facilitate the joining of issue.
The rules of court of many Australian courts require that Notices of Appeal briefly but specifically state the grounds relied on in support of the appeal: High Court Rules 2004 (Cth) r 42.02.2; Federal Court Rules 2011 (Cth) r 36.01(2)(c); Uniform Civil Procedure Rules 2005 (NSW) r 51.18(1)(e); Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 58.08(1)(b)(iv); Court Procedures Rules 2006 (ACT) r 5101(1)(g); Uniform Civil Procedure Rules 1999 (Qld) r 747(1)(b).
While there is no equivalent rule in the Family Law Rules 2004 (Cth), there is an expectation that a Notice of Appeal filed in the Family Court will comply with this requirement. Part E of the Notice of Appeal form directs appellants to “[s]tate briefly the grounds of appeal”.
As indicated to counsel at the hearing of the appeal, we are of the opinion that the consideration of whether the primary judge has erred should be limited to the error asserted in each ground as opposed to the much wider subsequent comments.
This created some difficulty for counsel who appeared for the appellant on the appeal, who drafted neither the Notice of Appeal nor the Summary of Argument. He properly accepted, however, that some of the grounds were misconceived. Wisely, he did not adopt the Summary of Argument in its entirety. That being said, only Ground 6 was abandoned and that was late in the hearing of the appeal.
Before turning to the grounds of appeal, it is necessary to set out the relevant provisions and authorities dealing with summary dismissal. Section 17A of the FCC Act relevantly provides:
17ASummary judgment
…
(2)The Federal Circuit Court of Australia may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b)the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(3)For the purposes of this section, a defence or a proceeding or part of a proceeding need not be:
(a)hopeless; or
(b)bound to fail;
for it to have no reasonable prospect of success.
In Spencer v The Commonwealth (2010) 241 CLR 118 (“Spencer”) at [55] – [56], Hayne, Crennan, Kiefel and Bell JJ accepted that this test (as expressed in s 31A of the Federal Court of Australia Act 1976 (Cth)) was different to the test posed in General Steel Industries Inc vCommissioner for Railways (NSW) (1964) 112 CLR 125 at 129 which was to the effect that the case of the plaintiff “is so clearly untenable that it cannot possibly succeed”. Their Honours also pointed out that it could be “dangerous to seek to elucidate” the new test by reference to earlier cases (at [56]) and continued:
58How then should the expression “no reasonable prospect” be understood? No paraphrase of the expression can be adopted as a sufficient explanation of its operation, let alone definition of its content. Nor can the expression usefully be understood by the creation of some antinomy intended to capture most or all of the cases in which it cannot be said that there is “no reasonable prospect”. The judicial creation of a lexicon of words or phrases intended to capture the operation of a particular statutory phrase like “no reasonable prospect” is to be avoided. Consideration of the difficulties that bedevilled the proviso to common form criminal appeal statutes, as a result of judicial glossing of the relevant statutory expression, provides the clearest example of the dangers that attend any such attempt.
59In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s 31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
60Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to “no reasonable prospect” can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase “just and equitable” when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes.
(Footnotes omitted)
In relation to r 10.12(d) of the Family Law Rules 2004 (Cth) the Court in Ebner & Pappas (2014) FLC 93-619 said:
62.The applicable test was considered by another intermediate court of appeal, the Victorian Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd [2013] VSCA 158. At that time the relevant legislative test in Victoria was “no real prospect of success”. There at [27] Warren CJ and Nettle JA said:
… whatever might be the practical effect of the new test, it is difficult to disagree with McMurdo J in Gray v Morris and McMurdo P in the Commissioner of Taxation v Salcedo that it should be applied by reference to its own language, without paraphrase or comparison with the previous rule, always bearing in mind the principle that the power to award summary judgment is only to be exercised with caution and, therefore, not unless it is clear that there is no real question to be tried.
(Footnotes omitted)
63.Their Honours continued at [35]:
Upon the present state of authority:
a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;
b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
These considerations apply directly to s 17A of the FCC Act.
Of course, it is also necessary to bear in mind the caution to be taken with summary dismissal as discussed in Lindon v The Commonwealth (No 2) (1996) 136 ALR 251 at 255 – 256.
There was no suggestion that her Honour did not apply these principles.
Section 66M of the Family Law Act (Ground 1)
This ground deals with the second order sought by the appellant. Her Honour described this order as follows:
9.Order 2, whilst not explicitly specified in its phrasing, is apparently an order sought under section 66M of the Family Law Act 1975 (Cth) (“the Family Law Act”), for a declaration that the Father has a lawful duty to support his step-children, [K] and [L]. The Father seeks this order so that he can make further application to the Child Support Agency to have his financial responsibility towards [K] and [L] taken into account by the Agency, so as to reduce the amount of child support payable to the Mother for [B] and [C’s] care.
The relevant part of the ground is:
Her Honour erred in summarily dismissing Mr [Eames’] application in circumstances where there were competing authorities on point.
As we will explain, we do not agree that there are competing authorities on the point. The position has been settled by a number of first instance decisions of the Family Court of Australia. There are two decisions of judges of the then Federal Magistrates Court of Australia to the contrary.
Did the primary judge err in summarily dismissing the appellant’s claim by rejecting the appellant’s argument that there are competing authorities on the application of s 66M?
A judge is obliged to follow decisions on questions of law decided by a superior court. In Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Moffitt P said at 177:
The obligation of every court loyally to follow decisions of any court superior to it has been often stated. At times it may appear to a judge or to an appeal court that the reasoning or absence of it in a binding decision renders that decision unsatisfactory. However, the law concerning precedent, based as it is on the need for certainty in the law, absolutely binds him to follow the precedent. He is as much bound by the law of precedent and the law so pronounced as he is by any other law. The law provides its own rules to admit of flexibility. These rules, which are part of the binding law of precedent, permit departure from prior erroneous decisions, but only in prescribed circumstances. The law binding on all does not include any right of a court to depart from a decision of a superior court and hence one binding upon it upon some basis, such as that some matter is considered to have been overlooked by the superior court or for some other reason it appears to be wrong. It does not permit it to disregard a binding decision of an appellate court on some view based on the reasoning of judges in a decision of an ultimate appellate court which does not overrule the binding decision. An example of this is provided by the reasons of some members of the High Court in Stage Club Ltd v Millers Hotel Pty Ltd which certainly did not overrule McGee or even deal with the same question.
It is clear that a court then is obliged to follow decisions of a court to which an appeal lies (Viro v The Queen (1978) 141 CLR 88 at 93).
However, no appeal lay from a decision of a judge of the Federal Magistrates Court of Australia, or lies from a judge of the Federal Circuit Court of Australia, to a single judge of the Family Court of Australia sitting at first instance. Federal Circuit Court judges are therefore not bound to follow first instance Family Court decisions. This is consistent with a number of authorities that have held that an intermediate court of appeal is not bound by a decision of a single judge of the High Court (Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651 at 654 and 664; Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 218; Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 at 223 – 224; see also Valentine v Eid (1992) 27 NSWLR 615 at 620).
This does not mean that the decisions of the Family Court should not have been followed. Judicial comity required that those decisions be followed unless a judge was convinced that they were “plainly wrong”. In the context of discussing the principle of comity between intermediate courts of appeal, in Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492 the High Court said:
Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court — and all the more so a single judge — should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.
(Emphasis added)
A similar principle applies between judges of first instance (La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204; Hicks v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 757 at [74] – [75]). In Hicks, French J explained the rationale as follows (at [76]):
The injunction to judicial comity does not merely advance mutual politeness as between judges of the same or co-ordinate jurisdictions. It tends also to uphold the authority of the courts and confidence in the law by the value it places upon consistency in judicial decision-making and mutual respect between judges. And where questions of law, and statutory construction, are concerned the proposition that a judge who has taken one view of the law or a statute is ‘clearly wrong’ is one not lightly to be advanced having regard to the choices that so often confront the courts particularly in the area of statutory construction.
The course taken by the primary judge entirely accorded with these principles. Her Honour correctly followed the decisions of the Family Court cited to her – and not those of the Federal Circuit Court – because the weight of authority and because judicial comity obliged her to do so. Further, as we shall explain, the Family Court authorities correctly set out the law so that no error arises from the way in which the primary judge applied it.
Section 66M of the Family Law Act provides:
66MWhen step‑parents have a duty to maintain
(1)As stated in section 66D, a step‑parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.
(2)A court having jurisdiction under this Part may, by order, determine that it is proper for a step‑parent to have a duty of maintaining a step‑child.
(3)In making an order under subsection (2), the court must have regard to these (and no other) matters:
(a)the matters referred to in sections 60F, 66B and 66C; and
(b)the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and
(c)the relationship that has existed between the step‑parent and the child; and
(d)the arrangements that have existed for the maintenance of the child; and
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
In Tilman & Baxter [2016] FamCA 141, Foster J applied the following passage from a decision of McManus R in Mulvena v Mulvena (1999) FLC 98-006 (“Mulvena”) at [66]:
The purpose of the Division is to make provision for child maintenance and it places upon parents the primary duty to be responsible for the financial support of their children. The purpose of s 66M is to provide for those cases in which a parent cannot meet this duty and it is appropriate, in the circumstances of the case, to impose a secondary duty on a step-parent. It can be said, then, that if there is no application for child maintenance, there can be no duty imposed under s 66M. That is to say, the duty only exists in conjunction with an application asserting a right to child maintenance.
This conclusion is supported by the words of s 66N which clearly assume there is an application under Division 7. The same result can be reached by asking what right corresponds to the duty in s 66M and the answer to that is an application for child maintenance. That is because a determination under s 66M(2) is preliminary to an enquiry into what financial support, if any, the step – parent ought to provide. Therefore, the application fails at this point. If I am wrong in that view, the application still does not satisfy the provisions of s 66M(3).
This was the decision that the primary judge decided to follow in preference to the decisions of the Federal Magistrates Court of Australia to which we shall refer shortly. However, this is not the only decision of the Family Court on this issue.
An application similar to the one in the present case came before the Court in W & W [2000] FamCA 92 (“W & W”). After noting that s 66M made no provision for the making of a declaration (at [8]), Wilczek J continued:
10.Section 66M(2) makes it clear that the Court may, by order, determine that it is proper for a step-parent to have a duty of maintaining a child, however the matters that are to be taken into account before such an order would be made, are the matters referred to in s 66M(3).
11.Before such an issue arises at all, namely for the Court to look at the matters to be taken into account under s 66M(3), in order to determine whether it is or is not proper for a step-parent to have a duty of maintaining a step-child, there must, in my view, be a proper application before the Court and such an application would normally be from the parent of the step-child, namely the husband’s wife. Query whether there would need to be a genuine dispute between the husband and his present wife concerning stepchild maintenance issues before this Court would consider it appropriate to deal with such an application.
His Honour also quoted with approval the decision of Mulvena to which we have already referred.
In LP and DP & JM [2004] FamCA 1409 (“LP and DP & JM”), O’Reilly J found at [25] that:
the court should not embark upon any determination under s 66M unless in the context of, and thus ancillary to, the hearing and determination of an application for a child maintenance order under s 66F.
Her Honour further observed:
30.If that is wrong as a matter of statutory interpretation, there is another basis on which to dispose of the present application. Section 66M contains a discretion whether or not to make a determination. Although s 66M is couched as a determination, the exercise of discretion under it may be a likened to the exercise of a discretion when a court is invited to give declaratory relief. In this regard, it is well established that “judicial pronouncements ought not to be issued unless there are circumstances that call for their making”, and that, before making such a declaration, there must be a real and not a theoretical question, the person raising it must have a real interest to raise it, and that he or she must be able to secure a “proper contradictor”, that is to say, someone presently existing who has a true interest to oppose the declaration sought. Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-8 per Gibbs J, citing with approval Lord Radcliffe in Ibeneweka v Egbuna [1964] 1 WLR 219 at 225 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2 per Mason CJ, Dawson, Toohey and Gaudron JJ; Breen v Williams (1996) 186 CLR 71 at 87-8 per Dawson and Toohey JJ; and Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643 at 648-50 per Dawson J.
O’Reilly J also expressly approved of the decision in Mulvena.
These decisions were followed by Faulks J in JFF & JEC [2005] FamCA 1317.
These authorities speak with one voice. An application under s 66M can only be brought in the context of an application for the actual payment of maintenance in respect of step-children. The provision cannot be used simply to support the making of a declaration of a duty in a general sense.
Contrary to this body of authority are two decisions of the then Federal Magistrates Court: Facey & Facey [2001] FMCAfam 4 (“Facey”) and Carnell & Carnell [2006] FMCAfam 476 (“Carnell”). In each the view was taken that it was not necessary to seek an order for actual payment of maintenance for there to be an order made under s 66M.
In Facey, that position was quite open because the only relevant existing authority before the federal magistrate was a decision of a registrar of the Family Court.
In Carnell, after considering all of the authorities of the Family Court which we have discussed above, Jarrett FM said:
49.None of the abovementioned decisions is binding upon me, although they are all of considerable persuasive value. There are two decisions of this Court that appear at odds with each other.
We consider that this paragraph does not afford the weight that judicial comity obliged his Honour to give to the decisions of the judges of the Family Court.
The appellant’s submission that there was “a divergence of opinion on a point of law between two trial level judicial officers” misstates the position. The decisions were not of equal status. The Family Court is constituted as a superior court unlike either the Federal Magistrates Court or the Federal Circuit Court (see s 21(2) of the Family Law Act; compare with s 8(3) of the FCC Act and the Federal Magistrates Act 1999 (Cth)).
In support of his proposition that there was a sufficient dispute as to the law to be applied to defeat the claim for summary judgment the appellant referred to Spencer at [25] which states:
25 Section 31A(2) requires a practical judgment by the Federal Court as to whether the applicant has more than a “fanciful” prospect of success. That may be a judgment of law or of fact, or of mixed law and fact. Where there are factual issues capable of being disputed and in dispute, summary dismissal should not be awarded to the respondent simply because the Court has formed the view that the applicant is unlikely to succeed on the factual issue. Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law. But where the success of proceedings is critically dependent upon a proposition of law which would contradict a binding decision of this Court, the court hearing the application under s 31A could justifiably conclude that the proceedings had no reasonable prospect of success.
We consider the reasoning in the last sentence of this passage also applies when there is an abundant weight of authority in support of the particular proposition.
In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (1994) 217 ALR 226, Beaumont J at 236 listed five principles for summary dismissal (which were later cited with approval by the Full Court of the Federal Court of Australia in Polar Aviation Pty Ltd v Civil Aviation Safety Authority (2012) 203 FCR 325 (“Polar Aviation”) at [43]).
The fifth was:
Where a point of law has to be decided, and the judge is satisfied that this can be done by him appropriately, thereby avoiding the necessity of, and expense in going to trial, he is entitled to determine the point.
(Citations omitted)
The trial judge in that case, Kenny J, said (Polar Aviation Pty Ltd v Civil Aviation Safety Authority (No 4) (2011) 203 FCR 293 at [12]):
Notwithstanding the need for caution, where in a strike-out application, a point of law arises, which can appropriately be decided at the interlocutory stage, the judge is entitled to determine the point, thereby avoiding the need for and expense of a lengthy trial. For the reasons set out below, this is a case in which certain points of law should be decided at this stage, since their disposition does not depend on further evidence and findings of fact, and their resolution will limit any future trial.
This comment was cited with approval by the Full Court of the Federal Court on appeal (Polar Aviation at [44]).
Given the abundant weight of authority and the obligation of a judge of the Federal Circuit Court of Australia to follow a decision of a single judge of the Family Court of Australia unless convinced that it is plainly wrong, we are of the view that the primary judge did not err in proceeding to find that the state of authority was such that there was no reasonable prospect of this aspect of the matter succeeding.
This is sufficient to deal with this ground. However, we consider that in the circumstances, we should ourselves express a view as to the operation of s 66M of the Family Law Act and, to this end, sought submissions from the parties on this issue.
What is the operation of s 66M?
We note, of course, the provisions of s 66E which provide that the court must not at any time make a child maintenance order if an application could properly be made under the Assessment Act.
Section 66M is located within Division 7 of Part VII of the Family Law Act. Division 7 is headed “Child maintenance orders”. According to s 66A, Division 7, inter alia:
(a)contains statements of objects and principles relevant to the making of child maintenance orders (Subdivision B); and
(b)deals with the relationship between this Division and the Child Support (Assessment) Act 1989 (Subdivision C); and
(c)deals with applying for and making child maintenance orders (Subdivision D); …
…
Tellingly, s 66M and s 66N fall within Subdivision D and not Subdivision C. Thus they are part of a group of sections that deal with applying for and making child maintenance orders.
The principal object of the division is to ensure that children receive a proper level of financial support from their parents (s 66B(1)). The other objects of the division are to ensure that the children have their proper needs met from the income, earning capacity, property and financial resources of both parents and that both parents share equitably in the support of their children (s 66B(2)).
To that end, the division identifies who may apply for a child maintenance order (s 66F) and the matters to be taken into account in considering the financial support necessary for the maintenance of a child and the contribution that each party should make (s 66J and s 66K). Taking these considerations into account, the court may make such a child maintenance order as it thinks proper, which may be of a very broad nature (s 66G and s 66P).
The entire point of these provisions is the making of orders, if appropriate, that provide for a specific form of financial support for the children the subject of the orders.
In relation to step-children, s 66D provides:
66DPrinciples—when step‑parents have a duty to maintain
(1)The step‑parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step‑parent to have that duty.
(2)Any duty of a step‑parent to maintain a step‑child:
(a)is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and
(b)does not derogate from the primary duty of the parents to maintain the child.
Importantly, the duty to maintain step-children is a secondary duty and subservient to the primary duty of the parents to maintain their own children (s 66D(2)).
Section 66M and s 66N then provide:
66MWhen step‑parents have a duty to maintain
(1)As stated in section 66D, a step‑parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.
(2)A court having jurisdiction under this Part may, by order, determine that it is proper for a step‑parent to have a duty of maintaining a step‑child.
(3)In making an order under subsection (2), the court must have regard to these (and no other) matters:
(a)the matters referred to in sections 60F, 66B and 66C; and
(b)the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and
(c)the relationship that has existed between the step‑parent and the child; and
(d)the arrangements that have existed for the maintenance of the child; and
(e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
66NDetermining financial contribution of step‑parent
In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step‑parent of the child, the court must take into account:
(a)the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and
(b)the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.
As can be seen, s 66N refers to s 66K which sets out the matters to be taken into account in determining the contribution that should be made to the child’s maintenance by a party.
The precondition to such an order is an order under s 66M.
Having regard to the context in which s 66M is placed within Division 7, we are of the opinion that its role is to operate as a prerequisite for the making of an order under s 66N; thus an order under s 66M must be sought in the context of an application for maintenance under s 66N and has no standalone operation. This is because the purpose of the Division is to provide for the maintenance of children by orders that mandate a specific financial outcome in favour of the party seeking the child maintenance order.
Such context is properly to be taken into account in construing the work that a particular section has to do. In Project Blue Sky v Australian Broadcasting Authority (1993) 194 CLR 355 McHugh, Gummow, Kirby and Hayne JJ said:
69 The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined “by reference to the language of the instrument viewed as a whole”. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that “the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed”. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
(Footnotes omitted)
Thus, as Wilczek J pointed out, an application for maintenance under s 66M is likely to arise between the partner of the step-parent and the step-parent where one is seeking an order for maintenance of those step-children (W & W at [11]).
In the present case, there is no evidence of any dispute between the appellant and his new partner as to the maintenance of the step-children. She seeks no such order against him. There is therefore no controversy between them. The seeking of an order under s 66M is therefore hypothetical or “theoretical”, in the words used by O’Reilly J (LP and DP & JM at [30]). Such an order would not quell any dispute existing between any of the parties.
It was submitted by the appellant that the order under s 66M was appropriately sought by him because, if granted, it could have the effect of reducing the amount of child support payable by him to the respondent. In Facey and Carnell the federal magistrates held that such an effect justified an order under s 66M even though no order was sought under s 66N.
The submission continues that this is because when determining the amount of child support payable under the Assessment Act, the formula applied by the Child Support Registrar includes each “relevant dependent child” (see s 46).
A “relevant dependent child” is defined by s 5(1) of the Assessment Act as:
relevant dependent child, in relation to a parent, means a child or step‑child of the parent, but only if:
(a)the parent has at least shared care of the child or step‑child during the relevant care period; and
(b)either:
(i)the child or step‑child is under 18; or
(ii)if the child or step‑child is not under 18—a child support terminating event has not happened under subsection 151D(1) in relation to the child; and
(c)the child or step‑child is not a member of a couple; and
(d)in the case of a step‑child:
(i)an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step‑child; or
(ii)the parent has the duty, under section 124 of the Family Court Act 1997 of Western Australia, of maintaining the step‑child; and
(e)in the case of a child—the parent is not assessed in respect of the costs of the child (except for the purposes of step 4 of the method statement in section 46).
(Emphasis added)
Section 124 of the Family Court Act 1997 (WA) is to the same effect as s 66M. The effect of these sections is that a step-child is only relevant for the assessment of child support under s 46 of the Assessment Act when an order has been made pursuant to s 66M.
We consider the opinion we have expressed that an order can only be made under s 66M in the context of an application under s 66N is consistent with these provisions of the Assessment Act. A step-child will then be taken to be a relevant dependent child for the purpose of the Assessment Act only where an actual order for payment of maintenance has been made. It is logical that an actual financial obligation to maintain a step-child should have a possible effect upon the assessment of child support as opposed a general unspecified duty to maintain which may have no actual financial consequences whatsoever. That would be the effect of an order under s 66M only.
This is consistent with the stated purpose of amendment of the Assessment Act by the Child Support Legislation Amendment Bill 1998 (Cth) which introduced the provision relating to step-children into that Act. The Explanatory Memorandum to the Bill (at paragraph 5.2) described relevantly the purpose of the amendments as being to:
eliminate the requirement for a paying parent to seek a departure from an assessment and enable a legal duty to maintain a step-child to be taken into account for the purposes of the child support formula.
For such a legal duty to be taken into account, the extent of that duty must, in our view, be quantified in a monetary amount.
Absent such an order, the seeking of an order under s 66M is nothing more than an opportunistic attempt to reduce the amount of child support payable without a matching obligation to pay maintenance for the step-children.
It follows then that the seeking of a mere order under s 66M for the purpose of reducing child support payable to another person is a purpose that is collateral to the legislation and ought not be permitted.
Section 123 of the Assessment Act (Grounds 2 to 5)
Section 123 of the Assessment Act provides:
123Application for order under Division
(1)An application may be made to a court having jurisdiction under this Act for:
(a)an order that a liable parent provide child support otherwise than in the form of periodic amounts paid to the carer entitled to child support; or
(b)an order that a liable parent provide child support in the form of a lump sum payment to be credited against the amount payable under the liability under the relevant administrative assessment.
(2)An application under subsection (1):
(a)may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
(b)may be made by the carer entitled to child support or the liable parent.
(3)Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders) in relation to the child, the carer entitled to child support and the liable parent.
(4)Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the carer entitled to child support and the liable parent.
The primary judge found that having regard to the form of the order sought by the appellant under this section and the evidence adduced by him, there was no reasonable likelihood that he would obtain the order sought because it lacked sufficient specificity and because the “apparent justification by [the appellant] for seeking a substitution order did not meet the objectives of the child support legislation” (at [39]). Having so found, her Honour summarily dismissed this aspect of the appellant’s application.
Leave to appeal
In order to appeal against this decision, the appellant needs leave to appeal (s 102 of the Assessment Act). It has been held that a “‘less restrictive approach’ might be applied to applications for leave to appeal a child support departure order” (Babett & Falconer (2015) FLC 98-067 at [60]; see also Bassingthwaite & Leane (1993) FLC 92-410 at 80,198 and Gilmour and Gilmour (1995) FLC 92-591 at 81,843).
Each of these cases was decided before the Full Court’s decision in Medlow & Medlow (2016) FLC 93-692. In that case at [57], the Court determined, subject to the unfettered nature of the discretion to give leave in any appropriate case, that generally the test to be applied for leave is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
We consider that this is the appropriate test to be applied in child support matters as well as other cases. It has the flexibility to take into account, where necessary, any particular matters arising out of the fact that the proceedings concern child support.
We shall return to the issue of leave after consideration of the grounds of appeal.
Challenges to findings
Ground 2 challenges the findings in [28] and [29] of the primary judge’s reasons. However, as counsel for the appellant correctly accepted, there are no findings in these paragraphs. All her Honour was doing was reciting the contentions of the respondent. Nonetheless, the ground was not abandoned. It is, however, doomed to fail.
Entirely the same may be said about Ground 3 which challenges [37] of the reasons.
Under Ground 3, the appellant also argued that in light of the primary judge’s conclusion that his application was insufficiently particularised, he should have been given the opportunity to amend it.
This complaint can be dealt with briefly. The appellant never sought to amend his application in the proceedings below, despite having ample opportunity to do so. The respondent’s application for summary dismissal was filed in October 2017. The appellant’s written submissions in relation to the summary dismissal application were filed in November 2017 and was conducted by the primary judge in December 2017. Over that period of time, no attempt was made by the appellant to amend the application to further specify the relief he sought, including by applying for an adjournment.
Adequacy of the primary judge’s reasons
Grounds 4 and 5 each challenge the adequacy of her Honour’s reasons. Her Honour said:
38.In the present case, it is the Father’s evidence that by redirecting payments away from the auspices of the Child Support Agency towards third party expenses, such as [B] and [C’s] schooling, he will be making a more visible contribution to his children’s care, which, he hopes, will result in a greater likelihood that their relationship can be restored, either now or at some time into the future.
39.This apparent justification by the Father for seeking a substitution order does not meet the objectives of the child support legislation. Whilst his desire to reconnect with [B] and [C] should not in any way be discouraged, the proposed reduction of funds that would otherwise be available to the Mother to meet [B] and [C’s] day-to-day living expenses in circumstances where she alone carries the financial, emotional and practical burden of being their sole carer and decision-maker, cannot be seen to be in the children’s best interests or be otherwise proper with regard to the factors set out for consideration under section 117 of the Assessment Act. This is particularly so when considering the Father has failed to set out who the payments of “up to $50” are to be directed to, other than some mention in his material that he has contacted the school who would be amenable to billing and receiving payments from him. This lack of specificity in the Father’s application makes it very difficult to consider how the order sought is either in the best interests of [B] and [C] or otherwise proper.
It can be seen in [38] that her Honour rejected the appellant’s contention that it would be in the best interests of the children for him to be seen to be carrying some of the financial burden of their care. Her Honour then found that having regard to the factors under s 117 of the Assessment Act, the order sought by the appellant could not be seen to be proper under that provision.
Subsections 117(4) – (8) of the Assessment Act set out an extensive list of matters to be taken into account by a court in considering whether to make a child support departure order or an order under s 123 (see subsections 124(3) and (4)). They relevantly provide:
117Matters as to which court must be satisfied before making order
…
(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d)the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i)himself or herself; or
(ii)any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i)to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii)to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii)to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
…
Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b)any special needs of the child.
Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b)disregard:
(i)the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii)any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
…
Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Plainly, whether the proposed order would be relevant to the best interests of the children of the parties and their parenting arrangements is not a matter that the section requires to be taken into account. So too can it be seen that the primary judge was of the view that the lack of specificity in the application and evidence precluded a consideration of the matters raised by the relevant provisions of s 117; therefore, a finding that the order was proper could not be made.
Her Honour’s reasoning process is quite clear and accordingly the reasons are adequate (Bennett and Bennett (1991) FLC 92-191 at 78,266 – 78,267; Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [58] – [59]).
Failure to take into account a relevant consideration
The appellant submitted that the primary judge erred by not taking into account s 4(3)(a) of the Assessment Act which states that:
(3)It is the intention of the Parliament that this Act should be construed, to the greatest extent consistent with the attainment of its objects:
(a)to permit parents to make private arrangements for the financial support of their children …
A private arrangement between parties has nothing at all to do with contested proceedings for orders under the Assessment Act. The intention set out in s 4(3)(a) had no relevance to the proceedings.
Finally, s 121 (which sets out additional objects for Division 5) and s 122 (which identifies the cases to which Division 5 applies) did not require separate consideration by her Honour because of the finding that the evidence fell short of being capable of establishing a claim under s 123.
Conclusion
No error has been identified and both the application for leave to appeal under s 102 of the Assessment Act and the appeal will be dismissed.
Costs
The respondent sought a costs order in the event that the appeal was dismissed and asserted that such costs should be assessed on an indemnity basis ($16,558.50) or, alternatively, on a party and party basis at scale ($12,451.73).
The submission was that indemnity costs were justified because:
· The appellant, properly advised, would have known there was no reasonable prospect of success;
· The claim under s 66M was for a collateral purpose and therefore an abuse of process; and
· The cost of the proceedings was out of all proportion to the amount the subject of the litigation.
Counsel for the appellant did not oppose an order for costs if the appeal failed but submitted that no basis for indemnity costs had been established.
Orders for indemnity costs are exceptional (Kohan and Kohan (1993) FLC 92-340 at 79,614; Limousin v Limousin (Costs) (2007) 38 Fam LR 478 and D & D (Costs) (No.2) (2010) FLC 93-435).
Whilst the categories of cases in which such costs are awarded is not limited, a commonly accepted list of such circumstances appears in Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225. Sheppard J said at 233 – 234:
5. Notwithstanding the fact that that is so, it is useful to note some of the circumstances which have been thought to warrant the exercise of the discretion. I instance the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud (both referred to by Woodward J in Fountain and also by Gummow J in Thors v Weekes (1989) 92 ALR 131 at 152; evidence of particular misconduct that causes loss of time to the Court and to other parties (French J in Tetijo); the fact that the proceedings were commenced or continued for some ulterior motive (Davies J in Ragata) or in wilful disregard of known facts or clearly established law (Woodward J in Fountain and French J in J-Corp (supra)); the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions (Davies J in Ragata); an imprudent refusal of an offer to compromise (eg Messiter v Hutchinson (1987) 10 NSWLR 525; Maitland Hospital v Fisher (No 2) (1992) 27 NSWLR 721 at 724 (Court of Appeal); Crisp v Keng (unreported, Court of Appeal, NSW, Kirby P, Priestley JA, Cripps JA, No 40744/1992, 27 September 1993) and an award of costs on an indemnity basis against a contemnor (eg Megarry V-C in EMI Records (supra)). Other categories of cases are to be found in the reports. Yet others to arise in the future will have different features about them which may justify an order for costs on the indemnity basis. The question must always be whether the particular facts and circumstances of the case in question warrant the making of an order for payment of costs other than on a party and party basis.
It can be seen that the respondent relies on the first two examples given by Sheppard J.
In Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 Woodward J said at 401:
I believe that it is appropriate to consider awarding “solicitor and client” or “indemnity” costs, whenever it appears that an action has been commenced or continued in circumstances where the applicant, properly advised, should have known that he had no chance of success. In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law. Such cases are, fortunately, rare. But when they occur, the court will need to consider how it should exercise its unfettered discretion.
The Family Court authorities as to the construction of s 66M of the Family Law Act to which we have referred were well known to the appellant or, at the least, his legal advisors, because they were discussed at length in the two Federal Magistrates Court decisions relied upon by him. Basic concepts of precedent and judicial comity thus applied to put a fundamental difficulty in the path of the appellant.
The appellant did not directly challenge these authorities in this appeal by directly asserting that they had been wrongly decided. His point was more limited, namely that there was a sufficient conflict between these authorities and those of the Federal Magistrates Court to defeat the claim for summary judgment. As these reasons make plain, that position was untenable.
The claim under s 123 of the Assessment Act was also untenable because of the vague nature of the order sought. Had it been made, we consider that it would have been completely unenforceable as it did not specify the particular debts that would be paid in lieu of child support. It would be simply an invitation for future discord as to what debts were covered by the order. That would have been obvious to anyone who had been properly advised. Any doubt, however, as to the strength of the appellant’s position disappears when regard is had to the respondent’s written submissions to the primary judge, which highlighted this exact difficulty. Despite those submissions, the appellant did not seek to amend his application but rather pushed on to seek the orders as originally sought.
We have already found that the claim under s 66M of the Family Law Act was made for a collateral purpose. This is because there was no dispute between the appellant and the mother of the step-children as to the amount of maintenance he was to pay her in relation to them. Rather, the claim was made in an apparent attempt to reduce the amount of child support payable to the respondent by increasing the number of relevant dependent children for the purposes of assessing his liability. We have found that is not a proper course when no order is sought under s 66N. The difficulty is compounded when it is clear that there is no controversy as to maintenance of step-children that required determination.
There is thus merit in the first two propositions made by the respondent. It follows that we reject the appellant’s submission that there were reasonable arguments put in support of his position.
The appellant was unable to assert any financial consequence that would flow from any order under s 66M other than to express a belief or hope that it would reduce the amount of child support payable by him.
Any order made under s 123 as sought by the appellant would not alter the amount of child support payable by him. He would continue to pay the same amount but instead of paying it all to the Child Support Registrar or the respondent, he would direct part of it to payments of debts that would otherwise be paid by the respondent. In the absence of the order as sought, she, of course, would use the child support to pay those debts herself. There was no suggestion that she was not appropriately caring for the children or not paying for expenses associated with their care.
The effect is again that the application, if successful, would have resulted in the appellant paying the same amount of child support as he previously did with entirely the same debts concerning the children as before continuing to be paid.
It follows that the expense of these proceedings was out of all proportion to the issues involved. We consider that this is a valid consideration to take into account.
For these reasons we are comfortably satisfied that the appellant should pay the respondent’s costs on an indemnity basis and we will assess those costs in the sum of $16,558.50.
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Alstergren DCJ, Aldridge & Austin JJ) delivered on 1 November 2018.
Legal associate:
Date: 1 November 2018
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