Gardon & Gardon

[2021] FamCA 487

FAMILY COURT OF AUSTRALIA

Gardon & Gardon [2021] FamCA 487  

File number(s):

DGC3197/2008

Judgment of:

HARTNETT J

Date of judgment:

13 July 2021

Catchwords:

FAMILY LAW – CHILD SUPPORT – Applicant father – alteration to Binding Child Support Agreement during COVID-19 period as a result of lost employment income – Applicant father withdrawal of his application – payment of alleged child support debt – application by mother – recovery of debts by payees – application dismissed.  

Legislation:

Child Support (Assessment) Act 1989 (Cth)

Child Support (Registration and Collection) Act 1988 (Cth) s 113A

Family Law Act 1975 (Cth) ss 75(2), 79, 121

Family Law Rules 2004 (Cth) rr 10.12(d), 11.02(2)(a)

Number of paragraphs:

26

Date of hearing:

23 June 2021

Place:

Melbourne

The Applicant:

Litigant in person

Counsel for the Respondent:

Mr Heggie  

Solicitors for the Respondent: 

Wilkinson & Associates

ORDERS

DGC3197 of 2008
BETWEEN:	MS GARDON Applicant
AND:	MR GARDON Respondent

ORDER MADE BY:	HARTNETT J
DATE OF ORDER:	23 JUNE 2021

THE COURT ORDERS THAT:

1.The application of the Applicant mother contained in the response filed 6 October 2020 be dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gardon & Gardon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

HARTNETT J:

1. On 28 August 2017 the Honourable Justice Austin  made Orders by consent between the parties being parenting orders in respect of the parties’ children X born in 2002 and Y born in 2003 (“the children”). X is now aged 17 years and Y is now aged 16 years.

2. By those Orders made on 28 August 2017, the mother and father have equal shared parental responsibility for the children. The Orders provide for the children to spend regular time with their father, which includes both substantial and significant time, and school holiday time.  The parties had, prior to the making of those Orders, otherwise resolved outstanding child support matters between them in the entering into by them of a Binding Child Support Agreement (“BCSA”).

3. Following the making of the August 2017 orders, neither party made applications to the Court until 12 August 2020.

4. On 12 August 2020, the father filed an initiating application in the Court. He sought the following orders:

   1.The Binding Child Support Agreement between the parties dated 2010 is suspended until such time as the applicant’s income increases above the rate of $130,000 per annum.

   2.Both parties be assessed for child support as per the Child Support (Assessment) Act 1989 (Cth).

   3.In the event the applicant’s income should increase above $130,000 then the terms of the Binding Child Support Agreement (“BCSA”) will once more apply.

   The Applicant was a litigant in person. He did not seek to set aside the BCSA pursuant to s 136 of the Child Support (Assessment) 1989 (Cth). In any event, on the 14^th December 2020 he withdrew from his application and pursued no other application.

5. On 6 October 2020, the mother filed a response to initiating application. She sought the following orders:

   1.The Initiating Application be dismissed.

   2.The child support debt of the father pursuant to clauses (3)(b), (c), (d), (e), (f) and (g) of the 2010 BCSA to 31 December 2020 be recognised as a recoverable debt that shall be enforced through direct collection by Services Australia at a rate to be determined by the Court.

   3.Interest shall be payable on the debt at 6% per annum and is to be included in the recoverable debt amount.

   4.No later than 16 December 2021, the mother will provide Services Australia with a list of the expenses for Y pursuant to clauses 3(b)(c) (d) (c) (f) and (g) [sic] of the 2010 BCSA for the period 1 January 2021 to 9 December 2021 to be included in the recoverable debt amount.

   5.The father will be solely liable for the remainder owed on the C School account of X and the B School account of Y.

   6.The father be deemed a Vexatious Litigant.

   7.All other Orders as the Court deems fit.

6. The father filed with his initiating application an affidavit sworn by him on 12 August 2020; an affidavit sworn by him on 6 August 2020; and a financial statement sworn by him on 10 August 2020. The mother filed with her response to initiating application an affidavit sworn by her on 3 October 2020. The evidence of the father was, in essence, that his income had been severely and negatively impacted by the consequences of COVID-19 and he felt unable to meet his ongoing financial obligations.[1]

   [1] The Applicant father’s affidavit sworn 6 August 2020 at paragraph 4. 

7. The matter first came before the Court on 12 October 2020. On that date, the Court ordered as follows: 

   (1)That the Initiating Application filed 12 August 2020 and Response to Initiating Application filed 6 October 2020 be adjourned for hearing in the Judicial Duty List at 10.00 am on 14 December 2020.

   (2)That by 4.00pm on 7 December 2020 each party file and serve any further affidavit upon which they seek to rely in support of their application.

8. On 14 December 2020, the mother failed to appear at the hearing of the matter in the Judicial Duty List. The father did appear, and sought to withdraw his application. The Court ordered as follows: 

   (1)There is leave to the Applicant father to withdraw his application filed 12 August 2020.

   (2)The application of the Respondent mother contained in the response filed 6 October 2020 is adjourned to 24 December 2020 at 9.30 am.

   (3)In the event the mother does not appear on 24 December 2020 the response filed 6 October 2020 may be struck out.

   At the bottom of the above Orders was a notation that:-

   A.In the event the mother is not proceeding with her application she can notify the other party and the Court and the date will be vacated. 

9. At that time, the mother had filed no further affidavit material. 

10. On 24 December 2020, both parties appeared, the father by video link and the mother by telephone link. Both parties were litigants in person. The Court ordered that: 

    (1)On or before 4 pm on 31 January 2021 the father file and serve a response to the mother’s application contained in her response filed 6 October 2020.

    (2)The mother is at liberty to file answering affidavits on or before 4pm on 21 February 2021.

    (3)All extant applications are otherwise adjourned to an interim hearing on 18 March 2021 at 9.30 am.

11. The matter did not proceed on 18 March 2021 but rather on the 22 March 2021. Both parties appeared in person. I ordered that “all extant applications for final orders be adjourned for hearing before me on 23 June 2021 at 10.00am (as a 2 day matter) with priority.” Otherwise I made procedural orders for the trial. I further ordered, in order 14 of the orders made that: “The requirements of s 102NA(2) of the Act shall apply forthwith and as such, the Respondent father shall not be permitted to personally cross-examine the Applicant mother.”

12. Following the hearing on 22 March 2021, and in June 2021, the mother commenced correspondence with the Court, with the Respondent father and then subsequently with the Respondent father’s solicitor, Ms Wilkinson, seeking an adjournment of the trial.  The mother indicated that she wished to delay the matter until November 2021 because of health difficulties suffered by her, and to allow her to conclude and/or progress multiple other legal cases that she was participating in with conflicting Court dates and deadlines. 

13. The case coordinator in the proceeding advised the mother in respect of her written request for an adjournment that:-

    It may be necessary to complete an application in a case supported by an affidavit.  Please access the court’s website in this regard, or contact me for a link to the subject documents. 

14. The mother had already been advised by the solicitor for the father that the father did not consent to any adjournment of the proceeding as requested by the mother. 

15. The mother did not file an application in a case for an adjournment of the trial and filed no affidavit material in respect of any application.  The mother did however send to the solicitor for the father, and to the Court, a copy of the results in respect of blood tests allegedly undertaken by her which she described indicated that she was “at risk of a stroke at any moment.” 

16. No medical certificate indicating any ill health suffered by the mother and/or ill health suffered by the mother which precluded her from being able to attend at Court, on the trial date, was provided at any time by the mother to the Court, and nor to the solicitor for the father. In correspondence to the solicitor acting for the father of 23 June 2021, the mother said, in part, relevantly:

    Whilst you have made it very clear to me that you, “Don’t give a shit about my health,” because your assignment from the government, and what you are being paid for, is to get your client off his child support debt and that is your focus, I care about my health because I am the only parent that my children live with and rely upon for everything and it scares me what would happen to them if something happened to me. 

17. The mother indicated to the solicitor for the father, on 22 June 2021, that she would not be in Court on 23 June 2021 saying relevantly that her absence would be:-

    …because I’m at risk of dying at any moment of a stroke (as proven by my blood tests) and the stress that I am currently going through is no less than the stress that Ben Roberts-Smith is going through.

    I consider myself to be a strong person, but my body has broken down from the constant stress that I have been made to be under for the last 15 years by your client. 

18. The mother in fact participated in the proceeding on 23 June 2021, albeit that she did not respond to the call to participate in the proceeding at 10.00am. That may not have been the fault of the mother. The matter was stood down with correspondence emanating from chambers to advise the mother that the matter had been so stood down and that there would be a further attempt to connect her via Microsoft Teams at 2.15pm.  At that point, the mother participated in the proceeding by audio but indicated that she could not get her video link in working order. 

19. The mother acknowledged that she had not filed any affidavits of evidence in chief in respect of the trial, nor had she filed a financial statement at any time. She had not complied with the orders of the 22 March 2021. The father had filed necessary material for the trial and in accordance with the orders, his affidavit and financial statement both being sworn on 28 April 2021. It was the mother, however, who had the carriage of the matter as she remained the only party seeking orders from the Court.

20. The mother participated in the hearing to a limited extent. She was often irrelevant in her submissions, which took on the form of an emotional outburst not suited to a courtroom. At one point during the hearing she sought leave to withdraw her application indicating that she had no confidence in the Court, and that she would, following her withdrawal of her application in the Family Court, proceed to re-file that application in the Federal Circuit Court. Given that indication, Counsel for the father did not consent to a withdrawal of the mother’s application. Counsel for the father sought a dismissal of the mother’s application on the basis of rule 11.02(2)(a) of the Family Law Rules 2004 (Cth) (“the Rules”). Rule 11.02 (2)(a) is relevantly, as follows:

    (2)If a party does not comply with these Rules, the Regulations or a procedural order, the court may:

    (a) dismiss all or part of the case;…

    Additional to proceeding under rule 11.02(2) of the Rules, Counsel for the father submitted that the mother had taken no significant steps to prosecute her application, and no steps to seek an adjournment by the filing of an application and affidavit in support. Counsel for the father further submitted that the Court should have no confidence the mother would take any meaningful steps to progress this matter by the filing of affidavit material either when ordered and/or in a timely way. Certainly, such material if filed might provide an evidentiary basis to support any application made by the mother. The application of the father caused the mother to change course. The mother then indicated that she would consent to an order for dismissal of her application but, again, indicated an intention to re-file her application in the Federal Circuit Court. When it was suggested by Counsel for the father that such course may be considered an abuse of process, a view with which the Court did not disagree, the mother indicated that she did not seek a dismissal of her application and opposed same.

21. It is clear that the mother has failed to prosecute her application. She has failed to comply with the orders made on the 22^nd March 2021. She has placed no affidavit evidence in chief before the Court. There is a clear power enabling the Court to dismiss her application. When directed to the means by which she might make any application for an adjournment of the trial, the mother chose not to adopt such course. Her actions have been prejudicial to the father who has only remained before the Court after the 14 December 2020 on the mother’s application for orders. For these reasons I am of the view the Application of the mother should be dismissed.

22. Counsel for the father also took the Court to rule 10.12(d) of the Rules submitting that there was no reasonable likelihood of success of the mother’s application. Rule 10.12 is relevantly as follows:

    A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:

    …

    (d)  there is no reasonable likelihood of success.

23. The reason for that submission was the lack of any evidence in chief from the mother.

24. Further, Counsel for the father referred the Court to s 113A of the Child Support (Registration and Collection) Act 1988 (Cth). That section is, relevantly, as follows:

    Recovery of debts by payees

    Payee to notify Registrar of intention to institute a proceeding to recover debt

    (1)A payee of a registered maintenance liability or carer liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:

    (a)       at least 14 days before instituting the proceeding; or

    (b) in exceptional circumstances--within such shorter period as the court allows.

    Note:For provisions relating to proceedings instituted under this section, see sections 111F and 111G.

25. Counsel for the father submitted that the mother has provided no evidence as to the relevant notice being given by her as required pursuant to s 113A as referred to above. That submission is an accurate one with which the Court agrees. The Court finds there was no evidence before the Court that any notice and/or service of an application had been effected upon Services Australia and/or the child support Registrar. The parties BCSA is a registered maintenance liability, registered with Services Australia. Collection is by Services Australia as sought in the mother’s application.

26. The Court shall dismiss the application of the mother as contained in her response to final orders filed the 6^th October 2020.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hartnett.

Associate:

Dated:       13 July 2021