Gupta and Child Support Registrar
[2016] FamCAFC 170
•1 September 2016
FAMILY COURT OF AUSTRALIA
| GUPTA & CHILD SUPPORT REGISTRAR | [2016] FamCAFC 170 |
| FAMILY LAW – APPLICATION IN AN APPEAL – EXTENSION OF TIME – Application for an extension of time in which to file a Notice of Appeal – Where the applicant seeks to appeal from orders relating to child support – Where the applicant has a reasonable excuse for his delay in filing his Notice of Appeal – Consideration of the merits of the proposed appeal – Where the applicant made an application in the Federal Circuit Court under s 111 of the Child Support (Assessment) Act 1989 (Cth) for an amendment of his child support liability – Where applicant failed to seek leave under s 112 of the Act – Where the application was therefore incompetent – Where the applicant sought for the primary judge to set aside a departure prohibition order – Where the primary judge refused to set aside the order on the basis that he had no jurisdiction to do so – Where the primary judge had jurisdiction to set aside the order under s 72Q of the Child Support (Registration & Collection) Act 1988 (Cth) and was therefore in error – Where an appeal under s 72Q lies not to the Family Court of Australia but to the Federal Court of Australia – Where the applicant proposes to appeal the primary judge’s refusal to grant a departure authorisation certificate – Where the Federal Circuit Court does not have the power to grant such a certificate – Where there is no merit to the proposed appeal – Application dismissed. |
| Child Support (Assessment) Act 1989 (Cth) ss 98S, 111, 112, 118 Gallo v Dawson (1990) 93 ALR 479 |
| APPLICANT: | Mr Gupta |
| FIRST RESPONDENT: | Ms Gupta |
| SECOND RESPONDENT: | Child Support Registrar joined as second respondent |
| INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
| FILE NUMBER: | PAC | 5828 | of | 2008 |
| APPEAL NUMBER: | EA | 19 | of | 2016 |
| DATE DELIVERED: | 1 September 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 11 August 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 December 2015 |
| LOWER COURT MNC: | [2015] FCCA 3583 |
REPRESENTATION
| THE APPELLANT: | In person |
| THE FIRST RESPONDENT: | Excused from attendance |
| SOLICITOR FOR THE SECOND RESPONDENT: | Mr Eskerie |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Excused from attendance |
Orders
The Child Support Registrar is joined as a party to this application.
Any rules requiring affidavits or responses to be filed by the Child Support Registrar are dispensed with.
The Application in an Appeal filed on 4 February 2016 is dismissed.
There be no order as to costs.
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 Gupta & Child Support Registrar 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 19 of 2016
File Number: PAC 5828 of 2008
| Mr Gupta |
Appellant
And
| Ms Gupta And Child Support Registrar |
Second Respondent
And
Independent Children’s Lawyer
Introduction
By an Application in an Appeal filed on 4 February 2016 Mr Gupta (“the applicant”) seeks an extension of time in which to file a Notice of Appeal against orders made by Judge Dunkley on 22 December 2015.
On that day there were two matters before the court. In parenting proceedings between the applicant and Ms Gupta (“the first respondent”), the primary judge made an order for the applicant to spend time with the parties’ two children at a contact centre for not less than two hours per fortnight. An order was also made for the parties and the children to attend an appointment with a family consultant for a Child Inclusive Child Dispute Conference.
In proceedings between the applicant and the Child Support Registrar (“the CSR”) the primary judge stayed the CSR from collecting a debt in the sum of $12 000, pending further order of the court, but otherwise dismissed the applicant’s Application in a Case. That application sought that the court set the annual rate of child support payable by the applicant to the first respondent for the period 17 November 2010 to 31 December 2013 to the annual minimum rate, that a departure prohibition order made on 22 May 2015 be set aside or revoked and that a departure authorisation certificate issue granting leave for the applicant to travel overseas.
Ultimately, the applicant proceeded to seek an extension of time only in respect of the orders as to child support, as the following paragraphs explain.
The application for an extension of time was first listed before the court on 24 March 2016 but that date was vacated on the application of the first respondent who was then in an advanced state of pregnancy and in ill health. The matter was then listed for hearing on 16 June 2016.
On 16 June 2016 the applicant informed the court that he was only seeking to proceed to seek an extension of time against the orders made in relation to the parenting matters and not the child support matters. He said, however, that he was not ready and wished to file further evidence. An adjournment was granted and the matter stood over to 14 July 2016.
On 14 July 2016 the applicant withdrew his application for an extension of time insofar as it related to the parenting issues and indicated that he instead wished to proceed in relation to the child support matters. This created a difficulty because the CSR was not a party to the application and had never been served with it. Accordingly orders were made excusing the Independent Children’s Lawyer and the first respondent from the further hearing of the proceedings and directions were made for service of the application upon the CSR.
When the matter was before the court on 11 August 2016 the CSR appeared, seeking to be added as a party to the application and for any rules requiring affidavits or responses to be filed to be dispensed with. The applicant did not oppose those orders and they will be made.
The principles to be applied in an application for an extension of time in which to lodge an appeal are set out in Gallo v Dawson (1990) 93 ALR 479 at 480-481, where McHugh J said:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
The hearing of such an application therefore involves the exercise of discretion so as to enable the court to do justice between the parties. In doing so, the court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the appeal.
The applicant’s affidavit filed in support of the Application did not attempt to explain why he did not file his appeal within the 28 day period required. However the applicant referred to what he said was an attachment to his proposed Notice of Appeal. It was not in fact attached but I permitted him to hand up a copy of the document. In that one page unsworn statement the applicant set out the following reasons:
·First he was advised that the courts would be closed between Christmas and New Year.
·He then sought assistance from Legal Aid on 7 January, 15 January and 20 January 2016. They declined to assist.
·He also approached two solicitors but there were delays in seeing them and in any event he could not afford their services.
·He then attempted, he said, to file a Notice of Appeal on 20 January 2016 but he was informed that he was one day late.
That is, in my view, a reasonable explanation for the delay.
It is necessary to consider the merits of the proposed appeal which I will do by reference to the particular orders sought by the applicant in his Application in a Case which was heard on 22 December 2015 and which was dismissed.
The proposed grounds of appeal
That for the period of 17 November 2010 to 31 December 2013, the annual rate of child support payable by the applicant to the respondent be set to the annual minimum rate or amount
In order to understand this aspect of the proposed appeal it is necessary to consider the relevant statutory provisions.
Section 112(1) of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) provides that if an application is made to a court under s 111 of the Act the court may grant leave for the CSR to make a determination under s 98S or the court to make an order under s 118.
Section 111 permits the CSR (under s 98S) or the court (under s 118) to assess child support in respect of the period that is more than 18 months but less than seven years earlier than the day on which the application is made. In other words it relates to the assessment of child support on an historical basis. Section 118 permits a court to make a variety of orders varying the annual rate of child support payable by a parent for that historical period.
The primary judge seems to have approached the matter on the basis that the applicant had not sought leave under s 112 and that therefore no order could be made by a court under s 118 varying the amount of the child support. His Honour said :
3.The orders sought by the father seeking to vary his child support assessment, is beyond the jurisdiction of the Court because it is a matter that has to be dealt with either administratively within the Child Support Agency or an appeal lies to the Administrative Appeals Tribunal.
4.As such, that part of the application in a case can be determined under division 13.10 of the Federal Circuit Court Rules.
5.I am satisfied that the proceedings for variation of the child support assessment should be dismissed as the relief sought has no reasonable prospect of success as there is, in this Court at this time, no jurisdiction to hear it. The jurisdiction lies elsewhere.
It is clear that the order sought by the applicant could only be sought after a grant of leave under s 112(1)(b). As no such leave had been granted his application was incompetent.
Further, the applicant had already made an application under s 111. That application was successful and on 7 August 2015 Judge Dunkley made the following order:
Leave is granted for the registrar of the Child Support Agency to determine child support payable by [the applicant] in the period 17 November 2010 to and including 31 December 2013.
It is to be recalled that s 112(1) permits the court to grant leave to the CSR to make a determination under s 98S or the court to make an order under s 118. The options are alternatives.
Pursuant to the leave granted, the CSR made a determination of the child support on 6 November 2015. The applicant was dissatisfied and on 30 November 2015 lodged an objection to the decision. Thus, the position as at 22 December 2015 was that the applicant had successfully prosecuted a leave application under s 112, received a determination and objected to that determination which objection had not yet been dealt with. The objection was disallowed on 24 February 2016.
Thus the CSR submits the order sought by the applicant in the application before the primary judge was an abuse of process because he had already prosecuted a claim under that section. There is significant force in that argument.
It is difficult therefore to see any merit in this part of any proposed appeal.
That the departure prohibition order made on 22 May 2015 be set aside/revoked
As can be seen from the reasons of the primary judge quoted above at [17], no direct reference was made to the departure prohibition order.
Under the Child Support (Registration & Collection) Act 1988 (Cth) (“the Registration Act”), a departure prohibition order is made by the CSR (s 72D) who also has power to revoke it (s 72I).
A person aggrieved by the making of the departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit Court of Australia against the making of that order (s 72Q(1)). Thus if one were to read the application to set aside or revoke the departure prohibition order as in fact being an appeal, the primary judge did have jurisdiction and was wrong summarily to dismiss it.
The insurmountable difficulty for the applicant on this application is that appeals from judgments of the Federal Circuit Court of Australia exercising jurisdiction under s 72Q are made to the Federal Court of Australia (s 24(1)(e) of the Federal Court of Australia Act 1976 (Cth)). There is no provision in the Family Law Act 1975 (Cth), the Assessment Act or the Registration Act that gives the Family Court of Australia jurisdiction to hear such appeals.
It follows therefore that the applicant’s appeal to this court in respect of this order is incompetent and any extension of time would be futile.
Departure authorisation certificate be issued granting leave for 3-4 weeks to [go overseas for business and to visit family]
Sections 72K and 72L of the Registration Act authorise a registrar to issue departure authorisation certificates. No power is given to the court.
A person dissatisfied with such a decision may seek to have it reviewed by the Administrative Appeals Tribunal pursuant to Part VIIA of the Registration Act.
As the primary judge was without jurisdiction to deal with this aspect of the application, it was properly dismissed.
It follows therefore that there is so little merit in the proposed appeal that any extension of time will be futile. The application is dismissed.
Costs
As has been seen the first respondent and the ICL appeared in the matter on two occasions. Neither of them nor the CSR sought an order for costs in the event that the application was unsuccessful and no order for costs will be made.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 1 September 2016.
Associate:
Date: 1 September 2016
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