Hopkins & Shorley
[2024] FedCFamC1A 221
•27 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hopkins & Shorley [2024] FedCFamC1A 221
Appeal from: Hopkins & Shorley (No 3) [2024] FedCFamC2F 1059 Appeal number: NAA 171 of 2024 File number: TVC 539 of 2011 Judgment of: SCHONELL J Date of judgment: 27 November 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant husband seeks leave to appeal from child support orders – Application of Medlow & Medlow (2016) FLC 93-692 – Where the applicant has not demonstrated that sufficient doubt attends the decision of the primary judge to warrant the grant of leave to appeal – No substantial injustice established if leave is refused – Where the appeal is otherwise without merit – Leave to appeal refused – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Child Support (Assessment) Act 1989 (Cth)
Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 28(1)(i)(a), 35
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123; [2005] FamCA 158
Hopkins & Walker [2013] FamCA 616
Lorde & Chu [2014] FamCAFC 228
Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Nada & Nettle (Costs) (2014) FLC 93-612; [2014] FamCAFC 207
Pascoe & Larsen (No 2) [2022] FedCFamC1A 126
Warbrick & Warbrick (No 2) (2021) FLC 94-030; [2021] FamCAFC 101
Walker & Hopkins [2004] FamCA 1105
Number of paragraphs: 38 Date of hearing: 22 November 2024 Place: Sydney, via audiovisual link Counsel for the Applicant: Self-represented litigant Counsel for the Respondent: Self-represented litigant Amicus Curiae for the Child Support Registrar: Mr Dennis ORDERS
NAA 171 of 2024
TVC 539 of 2011FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR HOPKINS
Applicant
AND: MS SHORLEY
Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
27 NOVEMBER 2024
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The Application in an Appeal filed 5 November 2024 is dismissed.
3.The Notice of Appeal filed 8 July 2024 is dismissed.
4.The appellant pay the respondent’s costs fixed in the sum of $752.50 within two months of the date of this order.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hopkins & Shorley has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Notice of Appeal filed 8 July 2024 the appellant seeks leave to appeal orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) on 10 June 2024. The orders the subject of appeal dismissed the appellant’s application for enforcement of a Child Support debt following his failure to appear.
As the orders the subject of the appeal relate to child support, leave to appeal is required (s 28(1)(i)(a) Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”)).
Each of the appellant and respondent appeared in person and Mr Dennis appeared for the Child Support Registrar as amicus curiae. Beyond appearing, Mr Dennis took no part in the appeal.
BACKGROUND
The parties the subject of the appeal have been engaged in litigation for nearly 30 years in relation to their children and child support. Despite the children having attained their majority, the appellant persists with litigation.
Over 20 years ago, Warnick J in Walker & Hopkins [2004] FamCA 1105 observed:
75.I accept that, from the [appellant]’s point of view, he had a certain desperation to be involved in meaningful ways in the children’s lives.
76.However, to the extent that it may be necessary to do so and based particularly on the letters written by the [appellant] which are in evidence, but also having regard to the evidence of the [respondent], I find that the [appellant] has unremittingly dealt with the [respondent] in a controlling, overbearing, offensive, aggressive and demeaning way.
77.I accept all that the [respondent] says of the impact on her of the litigation and ongoing interaction with the [appellant] about the children, over the last 9 years. It may be that because of hypersensitivity the [respondent] at times overreacts to actions of the [appellant] or leaps to assumptions, but the overall tenor of what has happened in this case is beyond dispute.
78.I accept her evidence as to the degree of distress and upset and the longevity of it for the children, arising from the [appellant]’s retention of the children last July 2003.
…
84.However, from the outset of the trial until the final moments, the declared position of the [appellant] moved considerably and I accept that, through his undertakings and instructions to his counsel, he did whatever he could to indicate an intention not to pursue the litigious and assertive path that he has in the past, true it is that he was represented by very experienced counsel and I infer that advice from his counsel contributed to the position taken by the [appellant]. To some extent one wonders whether, away from the glare of the courtroom and the likely guiding influence of counsel, the [appellant] will have the same impetus to adhere to his stated intentions. On the other hand, he is at least an assertive man and though it may be that before he gave significant instructions he received advice rather than develop his own intentions. That does not mean that he has not, in accepting that advice, demonstrated a significant change of attitude.
85.I consider that, as a result of the [appellant]’s stance in this case, the situation between the parties is new. There is a reasonable chance that most, if not all, of the manifestations of conflict between them will not be repeated.
The reference to undertakings included one given by the husband to the Court on 4 June 2004 not to bring any proceedings pursuant to the Child Support (Assessment) Act 1989 (Cth) without first obtaining leave.
Any expressed hope by his Honour that there had been a change in approach proved to be short lived. The husband commenced further proceedings in 2005 and 2006. An appeal was dismissed by the Full Court in February 2007. Further litigation ensued in 2007 and again in 2011 and 2012.
In 2013, Tree J in Hopkins & Walker [2013] FamCA 616 when considering the applications then before him observed:
41.Virtually all, if not entirely all, of these orders have no prospect of being made. In a very real sense, the [appellant] seeks to re-litigate issues which have been determined for many years, including the 2004 trial before Warnick J. The orders sought smack of harassment and an attempt to undermine and perhaps even intimidate the [respondent]. There is nothing in them which could possibly warrant their commencement. Moreover, I cannot identify any aspect of them which would be of any benefit to either of the parties’ children – indeed to the contrary, my view is that any further litigation between these parties is contrary to the children’s interests. It therefore follows that there should not be a grant of leave to commence either the Amended Initiating Application filed 21 September 2012, or the Application seeking that the [respondent] be punished for contempt filed 19 June 2012.
Further litigation continued in relation to child support in 2019, 2020, 2021 and 2022.
The application the subject of this appeal was listed before the primary judge on 10 June 2024 with the parties granted leave to appear by telephone.
On 10 June 2024, the appellant did not appear.
In the primary judges’ reasons, her Honour records as follows:
9In February 2024 the matter was reopened when [Mr Hopkins] filed an enforcement application for child support seeking the following orders:
1.The [respondent] owes the [appellant] $26,853.50 child support debt from current assessments
2.The [respondent] pay all costs incurred for obtaining the order
3.The [respondent] be issued with a departure prohibition order
4.The [respondent] pay the child support debt within 60 days into a bank account nominated by the [appellant]
10The application was listed for mention in April 2024 before Judicial Registrar McCormack.
11On that day the parties appeared and the matter was listed to the child support enforcement list before me on 10 June 2024 with all parties given leave to appear by phone.
12Notations were made to the orders that the [respondent] was seeking a summary dismissal and that the [appellant]’s dispute as to the undertaking remaining in effect.
13Further notations were made that an appearance on behalf of the Child Support Registrar was as a friend of the court and that the orders sought by [Mr Hopkins] as to a departure prohibition was outside the court’s jurisdiction.
14On 10 June 2024 [Mr Hopkins] failed to appear whereby there was an appearance by the [respondent]’s legal representative and by the Child Support Registrar’s legal representative as a friend of the court.
15I dismissed the [appellant]’s application based on the following:
(a) The [appellant] failed to attend.
(b)There existed a binding undertaking of the [appellant] that leave of the court is required before the filing of any further applications.
(c)The [appellant] had not obtained the leave of the court before bringing the enforcement application.
(d) In any event in respect to the application itself was defective because:
(i)The [appellant] had not provided a legal basis for the calculation of the amount being sought.
(ii)There is a question of whether the court had jurisdiction to make the orders sought by the [appellant].
16After consultation with the parties present as to whether they had a different view (of which they did not) as to the application being dismissed, an order was made for dismissal of the [appellant]’s application for enforcement.
LEAVE TO APPEAL
As referred to earlier, the appellant needs leave to appeal given the nature of the proceedings the subject of the appeal. In Medlow & Medlow(2016) FLC 93-692 the Full Court enunciated the principles referrable to leave that are required to be established by an appellant to be as follows:
(1)that the decision of the primary judge was attended by sufficient doubt to warrant its reconsideration; and
(2)that if leave were refused a substantial injustice would result.
A failure to establish either limb is fatal to the question of leave.
APPLICATION IN AN APPEAL
By Application in an Appeal filed 5 November 2024, the appellant seeks leave to adduce further evidence.
Section 35 of the Federal Circuit and Family Court of Australia Act2021 (Cth) (“FCFCOA Act”) confers on this court a discretion to grant leave to receive further evidence. In CDJ v VAJ (1998) 197 CLR 172 the High Court of Australia considered the principles relevant to the exercise of discretion and observed that evidence may be admitted to either demonstrate error or bolster the appeal.
By the affidavit in support, the appellant contends that the evidence sought to be relied upon is a decision of Walker & Hopkins [2004] FamCA 1105. The appellant does not need leave to refer to the judgment and consequently the application is incompetent and will be dismissed.
THE APPEAL
The appeal identifies six grounds, many of which are not immediately recognisable as a ground of appeal.
The Grounds are as follows:
1.for reasons unknown to the Applicant he was unable to join the telephone meeting.
2.The applicant was not required to seek leave of the court to file the Enforcement Application.
3.The Undertaking dated 4/06/2004, also ceased to to apply on the 15/11/2013 when the orders and Undertaking (03/06/2004) ceased to apply
4.Did the court in June 2004 have jurisdiction to accept the undertaking dated 4/06/2004 when there was no live Child support mater before the court.
5.If the court did have Jurisdiction – Did the court following any rules or principals of law that apply to accepting a Final Undertaking.
6.It is unknown on what bases/reasons that the Respondent … says she owes no debt.
(As per original)
Before consideration of the grounds, it is apposite to observe that the course adopted by the appellant of seeking leave to appeal runs contrary to the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and long-established authority.
In that respect, r 10.13 provides as follows:
i. the court may at any time vary or set aside an order if:
a. it was made in the absence of a party.
Further, the Full Court in Lorde & Chu [2014] FamCAFC 228 observed as follows:
36.Finally, it might be useful if we take this opportunity to draw attention to the fact that has long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a re-hearing rather than seek leave to have the matter dealt with by way of an appeal (Wilkes & Wilkes [1981] FLC 91-060).
By failing to avail himself of such a simple remedy, the appellant renders dismissal of the appeal an inevitability.
Irrespective of the application of r 10.13, the appeal has no merit.
Ground 1 and 6 are not grounds of appeal. To qualify as a ground of appeal there must be a succinct elucidation of error. A discursive or argumentative submission is not a ground of appeal.
Grounds 2–5 in their various guises restate the same proposition that according to the appellant, he does not require leave to commence the proceedings because the undertaking dated 4 June 2004 no longer applies. In relation to this contention, it is salutary to observe that the question of leave was addressed by Tree J in Hopkins & Walker [2013] FamCA 616. In the course of Reasons, His Honour referred to an earlier application by the husband in which he had sought to be released from his undertakings, referring to the ex tempore reasons of O’Reilly J delivered 2 July 2012 in which Her Honour dismissed the husband’s application for such a release.
Before Tree J was the appellant’s then application for leave to restrain the Child Support Agency from collecting a child support debt. His Honour observed as follows:
13.Then on 4 June 2004 the [appellant] gave a further undertaking, relevantly in the following terms:-
1…
2.I will not bring any proceedings pursuant to the Child Support Act or any other associated legislation without first obtaining leave of the court pursuant to my undertaking tended 3 June 2004;
3.I will give this undertaking under the same terms of my undertaking tendered 3 June 2004.
…
18.On 24 May 2006 the [appellant] filed an Application in a Case in which he sought “that the [appellant] be granted leave to make an application for parenting orders and CSA.” He filed an affidavit in support of that application. In para.12 of that affidavit, there was reference to an enforcement application made by the [appellant] in 2005 to the Federal Magistrates Court in relation to contact. The affidavit in part reads:-
The [respondent] claimed that the [appellant] was not entitled to run an enforcement application without first asking the leave of the court. The magistrate agreed with her, and dismissed the application.
…
20.On 29 June 2006 the [appellant] filed a Further Application in a Case in which, by order 1, he sought “that the [appellant] be granted leave to make an application for parenting orders and CSA…”
…
27.Against that background, there seems little room for argument that the applications currently before me brought by the [appellant] fall within the scope of his undertakings. However the issue has been to some extent clouded by the somewhat complex course of the present proceedings, which were commenced by the [appellant] on 6 June 2011 in the Federal Magistrates Court at [City F], seeking both final and interim children’s orders. In the course of the matter being dealt with by the Federal Magistrates Court on 17 August 2011, the need for the [appellant] to have leave to commence the proceedings was adverted to by the Court, however the only order that was made on that day was that the matter be transferred to the Family Court to be listed in Brisbane.
…
36.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 [appellant] from his undertakings.
Consistent with the above, his Honour dismissed the appellant’s application for leave.
On 23 March 2020, the appellant sought to appeal from a determination of the Administrative Appeals Tribunal in relation to a matter dealing with child support. One of the issues on the appeal was whether the appellant required leave. In Hopkins v Shorley (No 2) [2023] FedCFamC2F 25 Tonkin J recorded the following:
1On 23 March 2020 as amended on 28 October 2022 the applicant appealed pursuant to section 44AAA of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) from a first review decision of the Administrative Appeals Tribunal (“AAT”) dated 27 February 2020 (“AAT decision”). The Registrar argued that leave to appeal was required and opposed the Court granting leave.
2I delivered judgment on 24 November 2022 and determined that the applicant had failed to demonstrate any relevant reason why leave should be granted to proceed with his application.
…
6On 4 June 2004 in proceedings before the Family Court the applicant filed a written undertaking that he would not bring any proceedings under the Child Support Act or any other associated legislation without first obtaining leave of the Court pursuant to his undertaking tendered on 3 June 2004.
7The undertaking had not been withdrawn or revoked at the time the applicant filed his draft notice of appeal on 23 March 2020.
8Notwithstanding the existence of the 2004 undertaking the applicant filed applications with respect to Child Support heard by Justice Tree in March 2013. The Court refused to grant the applicant leave to proceed.
9Judge Coates in Hopkins & Shorley & Anor (SSAT Appeal) [2014] FCCA 158 (17 February 2014) dealt with an appeal by the applicant against a decision of the SSAT dismissing his application. His Honour considered the criteria for making an application for leave and was satisfied that the undertaking given was relevant to leave being granted and dismissed the appeal.
…
13On 16 July 2019 the applicant filed an initiating application in the Federal Circuit Court seeking an order that he be released from the 2004 undertakings. In addition he sought leave pursuant to section 112 of the Child Support (Assessment) Act 1989 for a departure order to be made in respect of the period 23 August 2012 to 15 November 2013. On 8 October 2019 that application was transferred to the Family Court.
…
19On 3 February 2021 Justice Baumann heard the applicant’s application reserving judgment. On 26 July 2022 the applicant filed a notice of discontinuance with respect to that application and on 1 September 2022 the application was dismissed.
DISPOSITION
For the above reasons, leave will be refused and the Notice of Appeal will be dismissed.
COSTS
The respondent sought an order for her costs in the event the appeal was dismissed in a fixed amount of $752.50. The order was opposed by the appellant.
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth), which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) of the Act reposes in the Court a discretion to make a costs order if the Court determines there are circumstances that justify this and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A) of the Act.
It is well-settled law that no one factor in s 117(2A) of the Act is determinative, and the Court may give such weight as it considers relevant to any factor (see Fitzgerald (as Child Representative for A (Legal Aid Commission of Tasmania)) v Fish (2005) 33 Fam LR 123).
Neither party placed before the Court any evidence as to their financial circumstances. The appellant advised that he is unemployed and has been for some time. That said, and even assuming that the respondent is in a superior financial position to the applicant, impecuniosity is not a bar to the making of a costs order (Nada & Nettle (Costs) (2014) FLC 93-612 at [11]).
The appellant has been wholly unsuccessful in the appeal. I am satisfied that is a circumstance sufficient to justify the making of a costs order.
The sum sought by the respondent is a fixed amount and is modest. The Court has the power to fix a sum as opposed to having the costs assessed (Pascoe & Larsen (No 2) [2022] FedCFamC1A 126). In light of the chronic capacity for litigation as demonstrated earlier in these reasons, I do not propose to allow this aspect of the parties’ disputation to continue beyond this event (Warbrick & Warbrick (No 2) (2021) FLC 94-030 at [13]).
I will fix the amount payable at $752.50 with such amount to be paid within two months.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 27 November 2024
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