Forbes & Bream
[2008] FamCAFC 189
•1 December 2008
FAMILY COURT OF AUSTRALIA
| FORBES & BREAM | [2008] FamCAFC 189 |
| FAMILY LAW - APPEAL – CHILD SUPPORT – Leave to appeal decision of Federal Magistrate under Child Support (Assessment) Act 1989 (Cth) – whether substantial prospect of success of ground of appeal asserting error of law – where Federal Magistrate’s orders dismissed father’s application for a departure from an administrative assessment of child support – whether Federal Magistrate had erred in law by applying s 117(7B) of the Child Support (Assessment) Act 1989 (Cth) – held that Federal Magistrate had correctly applied legislation – held that ground of appeal had no merit – leave to appeal on ground of error of law refused. FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – held that Court has discretion to order for transcript to be provided to parties at Court’s expense – where appellant asserted he could not afford to obtain transcript – where appellant applying for departure from an administrative assessment of child support – where Federal Magistrate at trial found that the appellant had capital means and earning capacity – held not to be an appropriate case for the Court to provide transcript at its own expense. |
| Acts Interpretation Act 1901 (Cth), s 13 Child Support (Assessment) Act 1989 (Cth), s 117, s 102A, Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006 (Cth) (Act No. 53 of 2006) Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) (Act No. 82 of 2007) Family Law Act 1975 (Cth), s 94(2) Family Law Rules 2004, r 1.12, r 22.23, r 22.24 |
| Andrews & Andrews (Re: Subpoena) (2007) FamLR 358 Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Oakley & Cooper [2008] FamCAFC 129 S & S (unreported, Full Court of the Family Court of Australia, Lindenmayer, Kay and Gee JJ, 20 June 1994) WJD & TEK (1998) 72 ALJR 1323 Zabaneh v Zabaneh (1991) FLC 92-239 |
| APPELLANT: | Mr Forbes |
| RESPONDENT: | Ms Bream |
| FILE NUMBER: | SYM | 3453 | of | 2006 |
| APPEAL NUMBER: | EA | 90 | of | 2007 |
| DATE DELIVERED: | 1 December 2008 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Boland & Stevenson JJ |
| HEARING DATE: | 9 September 2008 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 18 July 2007 |
| LOWER COURT MNC: | [2007] FMCAfam 483 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | Mr Ferguson acted as a McKenzie friend |
| COUNSEL FOR THE RESPONDENT: | In person |
| SOLICITOR FOR THE RESPONDENT: | N/A |
Orders made 9 September 2008
That leave to appeal on ground (u) of the Appellant’s amended draft Notice of Appeal is refused.
That the balance of the appeal be stood over to a date to be advised by the Appeals Registrar in late November or early December.
That any transcript the Appellant wishes to rely upon at that adjourned hearing be filed and served on the Respondent by 3 November 2008.
IT IS NOTED that publication of this judgment under the pseudonym Forbes & Bream is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 90 of 2007
File Number: SYM 5243 of 2006
| Mr Forbes |
Appellant
And
| Ms Bream |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application of Mr Forbes (“the father”) for permission to appeal orders of Sexton FM made on 18 July 2007. Those orders, in essence, dismissed the father’s application to depart from an administrative assessment of child support. Section 102A of the Child Support (Assessment) Act 1989 (Cth) provides that an appeal lies to the Family Court only if this Court grants leave to appeal.
At the outset of this judgment we will outline how the matter proceeded before us and why we considered it expedient to deal with the matter in this way.
Boland J conducted various procedural hearings in this appeal and on 21 December 2007 her Honour delivered reasons for judgment dealing with an application by the father for the Court to provide a transcript of the hearing before Sexton FM at the Court’s expense. The father had argued that he was unable to afford a transcript and that the Full Court would need to examine the transcript in order to determine the merits of his appeal.
Boland J determined that, whether or not a transcript was required for any other grounds of appeal, the transcript was not required to determine ground “(u)” which argued that the Federal Magistrate had fallen into an appealable error of law. Her Honour therefore reasoned that if the father were to succeed in his argument that the Federal Magistrate had fallen into an error of law, the need to obtain a transcript would fall away. Her Honour therefore stood the father’s application for a transcript over to the Full Court on the understanding that:
a)the Full Court would hear oral submissions on the issue of leave to appeal on ground (u); and
b)if the father was unsuccessful in obtaining permission to appeal on ground (u), the father’s application for provision of a transcript could be revisited before the Full Court.
Boland J noted that if any adjournment was necessitated by adopting such a course, it would not increase either party’s legal costs because both parties are self-represented.
In light of Boland J’s decision it was therefore agreed by both parties before us that the appropriate way to proceed was to initially hear submissions relating to ground (u) of the father’s amended draft Notice of Appeal. If the father’s application for leave proved unsuccessful on this ground of appeal, he would then address us on the necessity of a transcript for a proper consideration of the balance of the grounds of appeal and on the question of the costs of provision of that transcript.
At the conclusion of the hearing before us we made orders refusing leave for the father to appeal on ground (u) and, in effect, declining to provide a transcript of proceedings at the Court’s expense. These are our reasons for those orders.
The asserted error of law: ground (u)
Turning then to the father’s contentions regarding the Federal Magistrate’s alleged error of law, ground (u) of the Notice of Appeal states the following:
Error of Law with Regard to the Implementation of Section 117(7B).
Federal Magistrate Sexton relied on sub-section 117(7B) of the Child Support (Assessment) Act 1989, as being relevant legislation. This is particularly with respect to Paragraphs 38 to 45 and 50 to 55 of her Honour’s Reasons for Judgment delivered on 18 July 2007.
Her Honour erred by applying this sub-section. This is, when in fact; subsection 117(7B) should not have been triggered. The hearing dates were 14 and 28 May 2007. The above sub-section did not become effective with respect to determining “grounds” until the commencement date of changes made in the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (No. 82, 2007).
The commencement date of this amending legislation was 22 June 2007. This was determined by Section 2 of Schedule 1 and Notes 2 and 3 of Part 2 of Act No. 82 of 2007.
In a similar vein, in his Amended Summary of Argument filed on 22 May 2008, the father argues (page 10):
It is maintained that subsection 117(7B) could only have been triggered on or after 22 June 2007. At such time. Federal Magistrate Sexton should have advised both the Appellant and the Respondent that subsection 117(7B) was going to be applied.
As noted in the above extract from the Explanatory Memorandum, the terms of Section 117(7B) were “narrowed and clarified” – with “capacity to earn” provisions being now restricted to “health” and “caring” issues.
At that point, both the Appellant and the Respondent, should have been given the opportunity to make further submissions in that regard. That is because of the relevant changes made as a result of Act 82 of 2007 (that were only effective from 22 June 2007).
Unfortunately, in this instance, this was not the case. Therefore her Honour significantly erred in her decision, as a result.
The father’s oral submissions on this point did not expand in any meaningful way upon his written submissions.
The Law Relating to Child Support
Section 117(1) of the Child Support (Assessment) Act 1989 (Cth) (“the 1989 Act”) provides that a court may make an order for departure from an administrative assessment of child support only where it is satisfied:
(i)that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
One of the grounds for departure in s 117(2) is that an “administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child…because of the earning capacity of either parent” (see
s 117(2)(c)(ib)).In addition, in considering whether it is “just and equitable” and “otherwise proper” to make an order for departure, the court is mandated by s 117(4)(da) to consider “the earning capacity of each parent who is a party to the proceeding”.
A parent’s earning capacity is therefore relevant both to the establishment of a ground for departure, and also to the consideration of whether a departure would be just and proper.
Section 117(7B) of the 1989 Act defines more closely and limits the circumstances in which the court may conclude that a parent’s earning capacity is greater than is reflected in his or her income. It is this subsection which the father asserts Sexton FM improperly relied upon.
Discussion
As the father properly conceded in oral argument before this Court, s 117(7B) was introduced into the 1989 Act by the Child Support Legislation Amendment (Reform of the Child Support Scheme – Initial Measures) Act 2006 (Cth) (Act No. 53 of 2006) (“the 2006 Act”) (see Item 8 of Schedule 3). Item 18(d) of Schedule 3 to the 2006 Act makes it plain that this amendment was to apply to all relevant decisions made by a court after Schedule 3 came into effect. Section 2 of the 2006 Act provides that Schedule 3 came into effect either on the day after the 2006 Act received Royal Assent or on 1 July 2006, whichever was later. The 2006 Act received Royal Assent on 15 June 2006. Schedule 3 of the 2006 Act therefore came into effect on 1 July 2006. Section 117(7B) of the 1989 Act had therefore been in force for some 11 months by the time of the hearing of this matter in May 2007 and Sexton FM was required by law to apply that section in coming to her decision.
It is therefore clear that the father’s contention that s 117(7B) of the 1989 Act was not to be applied at the time Sexton FM heard this matter and/or delivered judgment is simply incorrect.
The only question remaining therefore is what effect, if any, the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth) (Act No. 82 of 2007) (“the 2007 Act”) had upon s 117(7B) of the 1989 Act.
As the father again properly conceded in argument before this Court, the 2007 Act did not make any substantive amendments to s 117(7B) of the 1989 Act. The only relevant amendment in the 2007 Act is contained within Note 3 to Item 11 of Schedule 1. This amendment simply deletes the heading to s 117(7B). Section 2 of the 2007 Act provides that this amendment came into operation the day after the 2007 Act received Royal Assent. The amendment therefore commenced on 22 June 2007, which was between the hearing of this matter before Sexton FM and the delivery of her judgment.
The heading to s 117(7B) of the 1989 Act which was deleted by the 2007 Act read as follows: “Determinations in respect of paragraph (4)(da)”. The heading thus implied that the limiting circumstances set out in s 117(7B) regarding a parent’s earning capacity apply only when determining whether it is “just and equitable” to make a departure order, but not when determining whether a ground for departure is established as required by s 117(1).
We note at this point that s 13(2) of the Acts Interpretation Act 1901 (Cth) provides that “no heading to a section of an Act, shall be taken to be part of the Act.” The deletion of a heading to a section therefore cannot be said to have any substantive effect on the section.
Parliament’s explanation for the deletion of the heading to s 117(7B) is found in the Explanatory Memorandum to the Bill which later became the 2007 Act. It states (at page 6):
Clarifying misleading headings about capacity to earn
From 1 July 2006, the ground of departure based upon a parent’s capacity to earn was narrowed and clarified. Amendments were made to make it clear that a capacity to earn decision could only be made where certain circumstances were established. In practice, the amendments have proven unclear as to where in the reasoning process, when considering an application, the particular criteria apply, because the headings appear to narrow the otherwise broad operation of the provisions. Amendments to the headings of the sections make it clear that the limiting factors apply in all stages of considering a departure, including the establishment of a ground for departure, and considering whether a change would be just and equitable and otherwise proper.
It is clear to us therefore that the deletion of the heading effected by the 2007 Act did not have any substantive effect on the law to be applied in this matter. Accordingly, it was not necessary for the Federal Magistrate to bring the amendment to the attention of either party nor to invite further submissions on the effect of the provision. The deletion simply clarified that the “limiting factors” set out in s 117(7B) apply in all stages of considering whether to make a departure order. The Federal Magistrate applied the law correctly.
We therefore consider that the father’s appeal has no substantial prospect of being successful on the ground that the Federal Magistrate fell into an error of law as asserted by the father. An analysis of the legal provisions establishes that there was no such error of law. Leave to appeal on ground (u) of the Appellant’s Notice of Appeal is therefore refused.
The Provision of Transcript
The failure of the father to obtain leave to appeal on ground (u) of his Notice of Appeal necessitates consideration of:
(a)whether determination of the remaining grounds of appeal requires provision of a transcript of the proceedings before Sexton FM; and
(b)if so, whether the father should bear the cost of the provision of such a transcript or whether the transcript may be obtained at the Court’s expense.
Each of these questions is considered in turn below.
(a) The necessity of transcript
The father argues that several of his proposed grounds of appeal require the Full Court to have access to the transcript of proceedings before Sexton FM. The father took us to several parts of the Federal Magistrate’s reasons for judgment where he contends that the Federal Magistrate came to impermissible conclusions of fact. He argues that evidence going to these facts which he gave in the witness box was not challenged at trial by the mother in cross-examination. Furthermore, he contends that his evidence was not inherently improbable. He submits that his evidence should therefore have been adopted by the Federal Magistrate.
It also became apparent in the course of the father’s argument before us that he contends that during the trial he was under a misapprehension as to the correct legislation applicable to his case. He stated that the Federal Magistrate was aware of his misapprehension and that her Honour did not adequately explain the legislation to him. He asserted that he was therefore not accorded procedural fairness. He stated that the “confusion will become apparent from the transcript”.
The mother in her reply to the father’s submissions did not object to provision of the transcript. She accepted that the transcript may be of considerable use to her in supporting her case, if she is correct, for example on the evidential points and on the issue of procedural fairness. The mother’s only objection centred on the question of payment for such a transcript. She contends that the father should bear the cost of provision of the transcript. She says he is more than able to afford it.
(b) The cost of transcript
From the inception of the operation of the Family Court in 1976, transcript has not been routinely provided to parties. The cost is not provided for in the budget of the Court, and the cost of doing so routinely, would impinge on other necessary expenditure for the proper operation of the Court. Thus in hearings of matters at first instance parties will be responsible for the cost of transcript if they wish to obtain it. However, the Court has from time to time judiciously provided transcript to parties where it is demonstrably in the interests of justice to do so. A common example is the provision of transcript of the evidence of an expert witness in a parenting case.
There is no legislative basis in the Family Law Act 1975 (Cth) or the Family Law Rules 2004 (“the Rules”) providing for such transcript to be made available by the Court. The Rules relating to appeals deal specifically with the obligation to provide a transcript. Rule 22.23 states that the “appellant or, if so ordered, the cross-appellant must arrange to obtain the relevant parts of the transcript of the hearing…”. In contrast, rule 22.24 enables the Court to order that the Appeal Registrar, rather than the appellant, prepare the appeal books, if “exceptional hardship” would otherwise be caused to the appellant. However, the note to rule 22.24 clarifies that even if the appellant is excused from preparing the appeal books because of “exceptional hardship”, the obligation remains upon the appellant to obtain the transcript of proceedings pursuant to rule 22.23.
It logically follows from the Rules that ordinarily the appellant should bear the cost of provision of the transcript at least in the first instance. This has certainly been the case in practice in appeals heard in this Court. However, in this case the father states that he is impecunious and cannot afford to obtain a transcript so as to comply with the Rules. The question then is whether this Court has a residual discretion to order provision of a transcript at the Court’s expense in such circumstances.
It has been assumed (without ever being decided) by this Court in several cases that such a discretion exists (see eg Andrews & Andrews (Re: Subpoena) (2007) FamLR 358 and Oakley & Cooper [2008] FamCAFC 129 , but compare S & S (unreported, Full Court of the Family Court of Australia, Lindenmayer, Kay and Gee JJ, 20 June 1994) and Zabaneh v Zabaneh (1991) FLC 92-239).
In WJD & TEK (1998) 72 ALJR 1323 a majority of the High Court (McHugh J, with whom Callinan J agreed) said the following:
4.In the brief proceedings in the Full Court which ultimately led to the dismissal of the appeal, the only question that was discussed was whether the Full Court could order the provision of a transcript free of charge. The court took the view that it had no such power. There is no reason as at presently advised to doubt the correctness of that view.
However, in the same case, Kirby J said:
7.In a proper case, this Court would, in my view, allow special leave to appeal to consider a refusal on the part of the Family Court of Australia to exercise its suggested discretion to:
1.Waive strict compliance with its rules relating to the filing of transcript in an appeal;
2.Order the provision of a transcript by Auscript if that were required in the interests of justice;
3.Dispense with filing of appeal papers in a formal sense; or
4.Ensure that officers of the Family Court gave assistance to a party to prepare the appeal papers where it would impose hardship on the appellant to do so. [See Family Court Rules, r 15(2).]
8.Rules of Court are the servants and not the master of the attainment of justice in our courts, as has been often said. [Clune v Watson [1882] Tarl 75; Bay Marine v Clayton Country Property (1986) 8 NSWLR 104 at 108]. It cannot be for the Executive or its agencies by the provision of funds for legal aid, or otherwise, effectively to control access to the appellate process of the courts and, in particular, the courts established under Ch III of the Constitution.
9.However, I agree that this case is not an appropriate vehicle to allow any of the foregoing issues to be considered. The findings of the primary judge were very strong. They appear to render the prospects of success in an appeal very small indeed. The applicant also indicated that he would wish to call new evidence in an appeal and that would rarely be allowed. …
The Family Law Act is silent on the question of the provision of transcript and provides no obligation, nor in our view any impediment, to the Court providing transcript in a particular case. Although Rules 22.23 and 22.24 place an obligation on the appellant (or cross-appellant) to provide transcript for insertion in the appeal book, the Court may dispense with the application of the Rules if warranted in a particular case. On one view this could mean simply that the requirement to provide transcript is waived but we do not consider the meaning to be necessarily so constrained.
If the interests of justice require it, and the appellant or cross-appellant or party seeking it cannot afford the cost of transcript, the Court may in the exercise of its discretion agree to provide the transcript of relevant parts to enable the appeal to proceed. In Fortnum & Fortnum (No 2) [2008] FamCAFC 73 Finn J described this as part of the “supervisory role of the Full Court”. We would add to her Honour’s explanation the “supervisory power of the Court” may necessarily, in a particular case, require the Court to have transcript to fulfil its statutory function under s 94(2) of the Family Law Act. Thus the Court hearing an appeal may order the provision of transcript as an exercise of its incidental powers.
We do not need to define the circumstances in which the discretion may be exercised. Suffice it to say that we doubt whether it would be exercised in anything other than exceptional cases. Furthermore, we consider that the vast majority of such cases will relate to parenting orders, where the necessity to arrive at a result in the best interests of the child may provide compelling reasons for transcript to be provided at the Court’s expense if the parties are impecunious.
This is not a parenting case; it is a financial case. It is also a case where, on the evidence at trial, Sexton FM concluded that the father had some (potentially significant) capital means (see paragraphs 30-33 of the Federal Magistrate’s reasons). The father filed a document in the appeal indicating that the length of the sessions making up the two-day hearing comprised almost six hours. This relatively short time, for which transcript would be required, is a relevant factor. Nothing in the written or oral submissions advanced to us persuaded us that the father cannot afford to procure the transcript, at least in the first instance. If the father succeeds in the substantive appeal in due course, he will be able to press his case for costs at that juncture. We therefore consider it appropriate, as we have already ordered, that the father procure, file and serve by 3 November 2008 a copy of any portions of transcript upon which he wishes to rely at the further hearing of his appeal.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 1 December 2008
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