Hopkins and Shorley and Anor (SSAT Appeal)
[2014] FCCA 158
•17 February 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HOPKINS & SHORLEY & ANOR (SSAT APPEAL) | [2014] FCCA 158 |
| Catchwords: CHILD SUPPORT – SSAT Appeals – whether appellant required by previous undertakings to seek leave to proceed – considerations for leave to be granted – requirements of Notice of Appeal. |
| Legislation: Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988, ss.110B, 151, 101(1), 110D, Federal Circuit Court Rules 2001, r.16.06 |
| S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd [1988] 12 NSWLR 358 Langmeil & Grange [2013] FamCAFC 31 Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321 Waterford v The Commonwealth (1987) 163 CLR 54 SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146 |
| Applicant: | MR HOPKINS |
| First Respondent: | MS SHORLEY |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | TVC 539 of 2011 |
| Judgment of: | Judge Coates |
| Hearing date: | 28 October 2013 |
| Date of Last Submission: | 28 October 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 17 February 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Self- Represented |
| Solicitors for the First Respondent: | Self-Represented |
| Solicitors for the Second Respondent: | Australian Government Solicitor |
ORDERS
That the Notice of Appeal (Child Support) filed 24 June 2013 be dismissed.
That the Notice of Appeal (Child Support) filed 5 July 2013 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Hopkins & Shorley & Anor (SSAT Appeal) is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
TVC 539 of 2011
| MR HOPKINS |
Applicant
And
| MS SHORLEY |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
On 29 July 2004, Warnick J in the Family Court of Australia delivered judgment in a parenting matter between the father Mr Hopkins and the mother Ms Shorley (then known as Ms Walker).
It is accepted by both parents that the parenting orders beneficial to Mr Hopkins were predicated on undertakings he gave on 3 and 4 June 2004.
Relevant to two new applications before the court, which are appeals by Mr Hopkins on matters before the Social Security Appeals Tribunal (the SSAT) pursuant to s.110B of the Child Support (Registration and Collection) Act 1988, is the undertaking given on 4 June 2004.
The undertaking is in these terms: “I will not bring any proceedings pursuant to the Child Support Act or any associated legislation without first obtaining leave of the court pursuant to my Undertaking tendered 3 June 2004”.
The two appeals were filed by Mr Hopkins on 24 June 2013 and 5 July 2013.
The appeal filed 24 June 2013 is against an SSAT decision made on 20 May 2013, wherein the SSAT upheld a decision by the Child Support Agency to allow the mother to apply for administrative assessment of child support for their child X, who was over the age of 18. The application was for child support until he finished secondary school in November 2013.
The appeal filed 5 July 2013 is not against what is known as a substantive decision of the SSAT, but is against a preliminary matter whereby the SSAT determined that it had no legislative power to hear a review concerning a change from private collection to Child Support Agency collection of child support, because the appellant had not objected to the Agency’s determination as required under legislation.
I will come back to these matters, as the requirement of s.110B is that the appeal document states a question of law.
However, it would appear as a matter of legal logic that the question of whether to grant leave has to be determined before the appeal applications can be determined, because of the appellant’s undertakings. Otherwise any order or undertaking requiring leave would have no functionality.
I should also state that I am satisfied that an undertaking and the instrument representing it is the equivalent of an order of the court.
An undertaking is a formal promise to the court in relation to acting or refraining to act in a particular manner and pursuant to r.16.06 of the Federal Circuit Court Rules 2001, undertakings have the same force and effect as an order of the Court.
The binding nature of the appellant’s undertakings can be understood because the Federal Circuit Court of Australia exercises concurrent jurisdiction in this matter with the Family Court of Australia. There would be no utility in the undertakings given by the appellant to the Family Court of Australia otherwise, as he could just go forum shopping to defeat his promise.
The appellant did not seek leave to proceed, but being unrepresented, I will treat his application as encompassing leave to proceed. He certainly argued the point when objections to him proceeding without leave were raised by both the Child Support Registrar and the respondent mother.
There must be some contextual background before the court or within the court’s knowledge as to why the undertakings were required, see S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd [1988] 12 NSWLR 358.
This matter has a long history before the courts in relation to family law and associated child support litigation.
Recently, Tree J of the Family Court, in a judgment delivered 1 May 2013, refused Mr Hopkins leave to proceed with, among other matters, a child support departure application.
He considered the undertakings I have referred to.
Tree J considered whether leave was required and the requirements of granting leave to proceed.
His judgment sets out in a detailed manner the proceedings between the parties since the undertakings were given, and at paragraph 36 he stated: “In my view, nothing in the conduct of these proceedings to date, or the involvement of this court in them, has effected the release of the father from his undertakings”.
As far as I can ascertain, that decision has not been overturned on appeal.
In considering whether to grant leave to proceed with the applications before him, Tree J considered the history. He concluded that Warnick J had determined that further conflict between the parents would only be reduced if the father’s ability to bring applications was limited.
This was achieved by having the father give his undertakings not to bring new applications about parenting or child support without first obtaining leave from the court.
Tree J had referred to the findings of Warnick J that the conflict was at a level which had caused the mother to suffer post traumatic stress disorder, basing his finding on the evidence of psychiatrist Dr K.
He also referred to the fact that the father gave the undertakings in order to, as Tree J stated in paragraph 12: “…overcome any suggestion that there remained any prospect of harassment…”.
At paragraph 38 of his judgment, Tree J stated: “Against that background, in order to obtain a grant of leave, the father would have to demonstrate that the circumstances are such that it is just to allow him to depart from the position he adopted before Warnick J.”
In my view, the father needs to obtain leave before his SSAT appeals can be considered, applying the same test as that applied by Tree J.
His affidavit was not in a form whereby he explained the issues pertaining to his appeals or to the justness consideration as to whether leave ought to be granted.
The affidavit material was a collection of unrelated documents, such as a pamphlet on post traumatic stress disorder, part of the transcript from the original Family Court proceedings and questions being directed to Dr K about post traumatic stress, correspondence to the doctor, medical reports relating to the respondent mother and various child support documents – none of which were tied together by sworn evidence or submissions explaining its relationship to either the two appeals or to seeking leave to bring them.
That affidavit was filed 24 September 2013.
The father put forward that the use of his undertakings by the respondent mother and the Child Support Registrar was to obstruct his access to the court and such was an abuse of process.
I view that as an argument designed to reverse the onus which the undertakings place on the appellant – because in my view, he is the person required to seek leave and to do so, he has the onus to present a case. That is one of the effects of the judgment of Tree J which refers to the father having to show that it was just to depart from his undertakings.
The father developed his argument by stating that the mother’s mental health did not give her the right to extinguish his rights – I assume his right to bring a matter before the court.
He also submitted that the mother’s actions have voided any obligation of his to comply with the undertakings – arguments to the effect she denied the children time with him and other similar allegations; that the mother has failed to comply with obligations placed on her by the Family Law Act 1975; that as the children involved are over 18 the undertakings cannot now be applied; undertakings are not court orders nor should they be considered a court order and that he requires the undertakings formally revoked.
It is clear from the submissions that the appellant father does not accept the mother suffers any diagnosed mental health issue, however, his arguments are his views and are not supported by any expert evidence. His views are also against factual findings made by Warnick J, based on expert evidence.
His submissions go to his beliefs about the change in child support collection from a private arrangement to collection by the Child Support Agency, but beliefs are not useful submissions and it is the legal issues which need to be addressed.
He also makes submissions relating to parts of the relevant child support legislation, in particular ss.151B, C & D, which addresses applications for support of a child over 18 but continuing with education. He states the mother forfeited her rights to apply and demand “any form of Maintenance or to even ask for it”.
He seemed to be submitting his view of the role of government, being: “If the State wants to make such an action mandatory, then the state has an obligation to ensure that rights, duties, obligations and responsibilities of all parties have been protected and that the parties fulfil those rights, duties, obligations and responsibilities placed on them by the Family Law Act”.
I would have to make a finding that no such intention can be gleaned from either the child support acts or the Family Law Act, or if there was such legislative intention, then I was not taken to the sections which would identify such legislative intention.
As to the Child Support Registrar’s involvement, if the applicant was not expressing an objection to the Child Support Registrar being a party to this proceeding, he was arguing that the Child Support Agency and Child Support Registrar should be some type of referee.
That is not the legislated role of the Child Support Agency, although the SSAT does have the legislated role of making administrative decisions in relation to child support disputes about the Child Support Agency’s decisions.
Despite the father’s views, the Child Support Registrar has a right to become a party to the appeal matters pursuant to ss.101(1) & 110D of the Child Support (Registration and Collection) Act 1988.
On becoming a party, the Child Support Registrar has a right to adopt a position and make submissions.
At no time has it been apparent that the Registrar has not taken a role as anything other than the Model Litigant.
If the father’s argument is correct, that the Child Support Registrar does not have a right to appear, at least until the question of leave is decided affirmatively and leave granted, then I accept the submissions from the Child Support Registrar as being of assistance to the court.
The respondent mother opposes the applications, relying on the undertakings, however, she is also self-represented and has as much difficulty as the applicant in addressing the law.
How a litigant discharges the onus to have leave granted is a matter of their evidence and submissions on the law, and this is what Tree J decided.
The salient point of Tree J’s decision is that the applicant has to show how it is just to depart from his undertakings so as to overcome the issues which caused him to give his undertakings.
Apart from that, the Child Support Registrar referred me to Langmeil & Grange [2013] FamCAFC 31, where it was said that leave would not be granted unless the court was satisfied that the case had a reasonable likelihood of success. That case referred to Zabeneh & Zanabeh (1986) FLC 91-766 where it was said that multifarious and overlapping applications should be prevented which amount to harassment, an abuse of process and involve enormous expense. The case also referred to a consideration of time and whether it would be reasonable to reconsider issues.
These cases really require the father to address in detail the history which lead him to give his undertakings, and what has changed so that the court can consider why it would be just to allow him to proceed with his application.
Taking all of these matters together, it would seem that there is a common thread about what an applicant must provide to the court when seeking leave to proceed.
A non-exclusive list of what should be addressed would include:
a) Evidence of all applications made since the order or undertaking was made or given;
b) Reference to all relevant facts;
c) Why the grant of leave to proceed would be just – to all parties;
d) A strong case, and what I will call
e) A bone fide position.
It is apparent that none of these issues have been addressed by the father.
It is apparent that his affidavit falls short of being in any form from which the context of the appeals can be understood.
It is apparent that the applicant has argued what he believes is the justice of such a decision – although he is wrong at law when he asserts numerous points, including the state’s alleged use of the Child Support Registrar; that the mother and the Registrar have the onus of showing why leave should not be granted; his view of the mother’s mental health status and that the undertakings are not valid because the children are now over 18.
It is apparent that the bone fides, the measure of his good faith, is reflected in such statements where he simply castigates the mother, without providing sworn evidence of all that he alleges are her actions and omissions which are in conflict with current orders – in other words, he simply appears to be using the process to abuse her.
As to his case that his undertakings could not be relevant now that the child is over the age of 18, there was no basis for that given that the legislation allows from a child support application after a child reaches the age of 18.
On that basis, I would not grant leave to appeal.
However, I will address the strength of his appeals, because of the manner in which the appeals have been drafted.
The appeals come under s.110B of the Child Support (Registration and Collection Act 1989.
The section states
“S.110B. A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.
As has been stated in various cases, the question of law to be identified is not a qualifying condition, it is the subject matter.
It has also been stated and accepted that such questions have to be stated with precision.
The court will allow some latitude because the applicant is not represented, to understand his case.
But it is worth now re-producing the appeal documents.
The grounds of appeal pursuant to the Applicant’s Notice of Appeal filed (Child Support) 24 June 2013 are:
“1. Mother not entitled to file a “A18 application”
2. The undertakings of the father place obligations on the Mother not to conduct herself in any manner that may lead to further litigation.
3.The Mother who has extinguish/destroy the rights, role duties and relationship of the Father with the children and also the rights of the children under the Family Law Act is then not entitled to revive those rights under the Child Support Acts for the sole purpose of collecting Money.
4. sec 151C(2) makes an application mandatory if certain conditions exist. The state is not entitled to make such a mandatory law when the Mother has extinguish/destroy the rights, role duties and relationship of the Father with the children and also the rights of the children under the Family Law Act.
5.sec 151C(2) makes an application mandatory if certain conditions exist. The state is not entitled to make such a mandatory law when those responsible for administering the law fail to protect the rights, role duties and relationship of the Father with the children and also the rights of the children under the Family Law Act.
6. The State is not entitled to reward the Mother for knowingly disregarding and avoiding the obligations, duties and responsibilities place on her by the Family Law Act.
7.if any child support is to be paid then it should be paid directly to the Child (X) consistent with other payments (youth allowance, Ausudy, Abstudy) from government services for the children 18 and over, and not to the Mother.
8. sec 151C(2) makes an application mandatory if certain conditions exit. The state be controlling what they collect from parents control what they payout to parents thorough social welfare payments and FTB A & B.”
The orders sought in the Applicant’s Notice of Appeal (Child Support) filed 24 June 2013 are:
“1. The Mother not entitled to file an application.
2. The Mother’s application to extend child support after X turns 18 be revoked.
3. If any child support is to be paid then is should be paid directly to the Child (X) consistent with other payments (youth allowance, Ausudy, Abstudy) from government services for children 18 and over, not to the Mother.”
The SSAT decision dealt with child support for X, who had reached the age of 18, so as to continue at school until November 2013. Apart from the substantive decision, the father argued before the SSAT that his undertakings prevented the mother from making an application for such child support. The SSAT did not hold that view, which is a question of fact in any case. Apart from ground 1, the other stated grounds of appeal do not address a question of law as to the decision-making process, but rather portray the father’s personal opinions. Ground one could pose a question of law, that the mother was not entitled to make her application, but in fact, as correctly found by the member, she was entitled to make her application.
The grounds of appeal pursuant to the Applicant’s Amended Notice of Appeal (Child Support) filed 5 July 2013 are:
“1. Refusal to consider application.
2. Objection has been made to CSA.
3. Collection change from private to CSSA collect is the Mother entitled to make such an application after a child has turned 18.
4. Part 6A review is the Mother entitled to make such an application after a child has turned 18.
5. Error of law by CSA Failed to comply with the requirements of sec 39, 29A and sec 4 of the Child Support Registration and Collection Act.”
The orders sought by the Applicant in his Amended Notice of Appeal (Child Support) filed 5 July 2013 are:
“1. SSAT be ordered to hear the application or
2. FLC hear application
3. CSA Failed to comply with requirements of sec 39, 39A and sec 4 of Child Support Registration and Collection Act
4. The Mother has not made an Application for Change of Collection from Private to CSA Collect."
The SSAT has not made a decision within terms of deciding a matter between the parties.
The SSAT simply told the father that he had not complied with legislative requirements to object to a Child Support Agency decision before appealing and therefore it had no power to hear his matter.
Even if the SSAT in that instance could hear the father’s matter, in my view no question of law is stated in the Notice of Appeal.
The grounds unfortunately represent mere ramblings, and do not in any form refer to questions of law.
They represent a person who is not satisfied with the decisions made previously, by himself and the courts and the child support decisions, but do not provide a question of law which empowers the court to hear the appeals.
While a litigant is often dissatisfied with such decisions, the court can consider such an appeal only where it is based on the raising of a question of law, see Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321.
None of the grounds stated raise such a question – they merely raise a factual situation whereby the applicant is dissatisfied with the decision. Findings of fact, most usually, are not to be turned into questions of law, see Waterford v The Commonwealth (1987) 163 CLR 54.
Why I am addressing this issue is because I am trying to determine whether the applicant has a strong case.
However, that does not include the court running of his case, as was determined by the Federal Court of Australia in SZRUR v Minister for Immigration and Border Protection [2013] FCAFC 146, where, in referring to High Court and other decisions in relation to proceedings and unrepresented litigants, it was held that the courts have an overriding duty to ensure proceedings are fair, that is, that there is fair trial.
That is fairness extended to all parties, not just an unrepresented party.
Apart from ensuring fairness, I take into account that the appellant has been the applicant before a court in relation to children and child support matters on many occasions, which in my view does not allow for any claim that he completely lacks an understanding of what is required.
As far as I could, in pursuance of fairness to the appellant, I questioned his case in great detail, reflected in 56 pages of transcript, to gain an understanding of his case.
After hearing his answers and submissions, I would have to conclude that he does not have a case at all.
Determining whether he has a case, or a strong case, or a reasonable case is a consideration of granting leave to bring the proceedings because of his undertakings.
The appellant has not been prevented from making an application, by the mother or the Registrar, but he is prevented from pursuing any application before a court grants leave to proceed.
What the appellant must consider is what Tree J stated, being “in order to obtain a grant of leave, the father would have to demonstrate that the circumstances are such that it is just to allow him to depart from the position he adopted before Warnick J.”
On that basis, I am not going to grant leave to proceed, because he does not come to the court demonstrating circumstances to show it would be just to allow him to depart from his undertakings and he does not identify a question of law in the appeals.
Both appeals have to be dismissed.
I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of Judge Coates
Date: 17 February 2014
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