Hopkins & Walker
[2013] FamCA 616
•1 May 2013
FAMILY COURT OF AUSTRALIA
| HOPKINS & WALKER AND ANOR | [2013] FamCA 616 |
| FAMILY LAW – Application for Leave to bring proceedings – circumstances insufficient to justify grant of leave – application refused FAMILY LAW – CHILD SUPPORT – Application to amend to seek leave for departure order – no reasonable prospects of success – application refused. |
| Child Support Assessment Act 1989 Part 6A, s.54F, s.54G, s.54H, s.54G, s.111, s.112, s.116, s.117, s.118 Vexatious Proceedings Act 2005 (Qld) Family Law Act s.64, 118 Family Law Rules Rule 11.04 |
| Hopkins & Walker [2007] FamCA 317 |
| APPLICANT: | Mr Hopkins |
| FIRST RESPONDENT: | Ms Walker |
| SECOND RESPONDENT | Child Support Registrar |
| FILE NUMBER: | TVC | 539 | of | 2011 |
| DATE DELIVERED: | 1 May 2013 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 1, 4 March 2013 |
REPRESENTATION
| APPLICANT: | In person |
| FIRST RESPONDENT: | In person |
COUNSEL FOR THE SECOND RESPONDENT: | Mr. Green |
| SOLICITORS FOR THE SECOND RESPONDENT: | DLA Piper |
IT IS ORDERED THAT:-
The Father’s application for leave to commence his extant applications is dismissed and leave is refused.
The Mother’s application for leave to amend her Application in a Case to seek various departure orders pursuant to s.118 of the Child Support Assessment Act 1989 is dismissed and leave is refused.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hopkins & Walker has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT |
FILE NUMBER: TVC539/2011
| Mr Hopkins |
Applicant
And
| Ms Walker |
Respondent
REASONS FOR JUDGMENT
A. INTRODUCTION
Before me are a number of matters requiring determination. Firstly there is an Amended Initiating Application filed by the applicant Mr Hopkins (“the father”) on 21 September 2012 in which he seeks a variety of orders which might best be described as declarations in relation to the conduct of the respondent Ms Walker (“the mother”) in relation to earlier orders of this Court. Also in that application he seeks an order revoking all previous reviews conducted by the Child Support Agency (“CSA”) under Part 6A of the Child Support Assessment Act 1989 (“the Act”) and an order that the CSA be restrained from collection and enforcement of any CSA debt. I should say that there was also, by order 1 of that Amended Initiating Application, an order sought in relation to a child of the parties spending Christmas school holidays with the father, but by operation of order 4 of orders made by O’Reilly J on 2 July 2012, that part of the amended initiating application stands dismissed.
Secondly, there is a contempt Application filed 19 June 2012 by the father seeking orders against the mother.
Thirdly, there is an Application in a Case filed by the father on 21 February 2013 which, in substance, seeks reviews of orders of several Registrars refusing the father permission to view and copy certain subpoenaed documents.
Fourthly, there is an Application in a Case filed by the mother on 23 August 2012, seeking an order that the father be declared a vexatious litigant pursuant to the Vexatious Proceedings Act 2005 (Qld). Before me all parties treated that as being an application under either s.118(1)(c) of the Family Law Act, or Rule 11.04 of the Family Law Rules. Further, at the commencement of the hearing before me, the mother sought to amend that application to also include an order departing from several administrative assessments of child support pursuant to s.118 of the Act.
As the matter progressed, it became clear that the mother’s application to amend was opposed by the Child Support Registrar, principally on the grounds that to permit the amendment would be an exercise in futility, as the foreshadowed application was doomed to fail.
During the course of the hearing, an issue arose as to whether or not the three applications filed by the father were properly before me, or whether by virtue of undertakings given by the father to Warnick J on 29 July 2004, upon which orders made by his Honour on that day were premised, the father needed leave to bring the proceedings.
It seemed to me as though these two latter matters needed to be dealt with before any other aspect of the applications could properly be determined. I therefore heard argument in relation to both of those matters and reserved my decision in relation to them. These are my orders and reasons arising from that hearing.
B. THE FATHER’S APPLICATION FOR LEAVE
(a) Is leave required?
On 29 July 2004 Warnick J delivered his judgment on competing parenting applications before him between the parties. At para.[7] of his reasons, his Honour noted that there had been a long history to the conflict between the parties.
From the Outline of Case filed by husband on 1 June 2004, it appears as though parties had their first trial in July and August 2000 before Jordan J, against whose judgment the father appealed on 30 August 2000, with that appeal being dismissed by the Full Court on 22 February 2002. The father sought leave to appeal to the High Court on 5 July 2002, which leave was refused by the Court on 25 June 2003. The husband then commenced fresh proceedings resulting in the judgment of 29 July 2004.
Before Warnick J, the mother argued that both she and the children had had enough of conflict with the father, which informed her application that the father’s contact with the children be suspended, and that he be declared a vexatious litigant.
At paras.[41]-[44] Warnick J reviewed the evidence of Dr P, a consultant psychiatrist. He diagnosed the mother as suffering from post traumatic stress disorder which was “entirely due to the chronic history of traumatically stressful experiences related to the interactions between [the father] and [the mother]…”
In an effort, which ultimately proved successful, to overcome any suggestion that there remained any prospect for ongoing harassment, on 3 June the father proffered undertakings to the Court. Relevantly the first undertaking provided:-
1. I will bring no further applications pursuant to the Family Law Act 1975 again the mother [Ms Walker] in relation to this matter to this matter without leave of the court;
2. ..
Then on 4 June 2004 the father 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.
Both undertakings concluded with the following words:-
And I agree to be bound by this undertaking until or excused by the court.
I acknowledge that:-
(a)the nature and terms of the undertaking have been explained to me; and
(b)I promise that (sic) court I will comply with the terms of the undertaking; and
(c) the undertaking has the same effect as an order of the court; and
(d)if I breach the undertaking, I may be guilty of contempt of the court and may be punished by a fine or imprisonment.
Likewise each undertaking concluded with a certificate of a lawyer in the following terms:-
I am the lawyer for the person giving the undertaking and I certify that I have explained to the person giving that undertaking:-
(a) the nature and terms of the undertaking; and
(b)that the undertaking is a promise to the court to comply with its terms; and
(c)that the undertaking has the same effect as an order of the court; and
(d)that a breach of the undertaking may be a contempt of the court punishable by a fine or imprisonment.
It appears as though after the trial before Warnick J, the father commenced proceedings by Application filed 7 November 2005 in which, by para.17, he further sought on a final basis to “vary or discharge the undertaking as is appropriate.” The preceding 16 paragraphs of the Application were in relation to contact with the parties’ children C and B. On the same date he sought interim orders in identical terms to the final orders, including para.17. In his affidavit also filed the same day, the father exhibited the orders of Warnick J, including the annexed undertakings.
On the return date of that Application on 21 November 2005, Jordan J refused leave to the father to institute proceedings, but stood the matter over for 6 months “to see if there is any change in the landscape in that time, if you wish to take up that opportunity.”
On 24 May 2006 the father filed an Application in a Case in which he sought “that the father 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 father in 2005 to the Federal Magistrates Court in relation to contact. The affidavit in part reads:-
The mother claimed that the father 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.
The father’s application was dealt with by Jordan J on 30 May 2006 insofar as an ICL was appointed. At para.[7] of the ex tempore reasons, the Court said “Justice Warnick’s concern in 2004, and my concern now, is the very prospect of further litigation may have a serious, adverse impact upon one or both of the children and upon the parents. I am concerned that I do not enable further litigation to proceed if the net effect of that would be adverse, particularly in this focus, as it were, upon the child [B].”
On 29 June 2006 the father filed a Further Application in a Case in which, by order 1, he sought “that the father be granted leave to make an application for parenting orders and CSA.” He also sought “that the orders made by justice (sic) on the 30 May 2006 be revoked or permanently stayed.”
On 26 September 2006, Jordan J ordered, inter alia:-
1. The father have leave to proceed with paras.1, 2, 3 and 4 of his application filed on 7 November 2005 in relation to the child [C] born ... 1995.
Leave was not given to proceed in respect of applications relating to B and ex tempore reasons delivered by Jordan J on that day explained why. Further it is clear from para.[20] of those reasons that, even though leave was given in relation to proceedings relating to C, they were intended to be managed in a way which minimised the impact upon the mother and C.
On 18 October 2006 the father filed an appeal from those orders, and on 17 November Jordan J stayed them, presumably on the basis of the pending appeal.
On 28 February 2007 the Full Court (Kay, Warnick and Barry JJ), dismissed the father’s appeal, but allowed the mother’s cross-appeal. Order 3 of the Full Court orders provided “orders 1 to 6 of the orders made by Justice Jordan on 26 September 2006 be set aside.” Order 4 was that “the application of the father filed 7 November 2005 be otherwise dismissed.”
The Full Court’s reasons are published in Hopkins & Walker [2007] FamCA 317. At para.[74] the Court recorded that it had previously indicated an intention to dismiss the appeal, in which event the father said he would consent to the mother’s cross-appeal being allowed, because he was of the view that there was no point proceeding in relation to one child but not the other.
On 22 May 2007 Jordan J dismissed the father’s form 1 Application filed 7 November 2005, the form 2 Application in a case filed 7 November 2005, the form 2 Application in a case filed 24 May 2006, and the form 2 Application in a Case filed 29 June 2006.
Against that background, there seems little room for argument that the applications currently before me brought by the father 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 father on 6 June 2011 in the Federal Magistrates Court at Townsville, 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 father 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.
On 30 November 2011 a Registrar of this Court listed the mother’s application for summary dismissal of the father’s application (upon the basis that the father had breached the undertakings given to the Court on 29 July 2004 by commencing the proceedings) before a judge of this Court. On 12 March 2012 when the matter came before this Court, it does not appear to have determined that application, but rather ordered the appointment of an Independent Children’s Lawyer and the preparation of a Family Report, and otherwise adjourned the matter to 19 June 2012. Order 9 of those orders was as follows:-
Leave given to the father to institute proceedings for recovery order but such application be adjourned to a date to be fixed until the completion of the Family Consultant’s report.
On 2 July 2012, another judge of this Court dismissed the father’s application for interim parenting orders, and by order 2 ordered as follows:-
The father’s application made orally today to be released from paragraph 2 of his undertaking filed 3 June 2004 is dismissed (the undertaking being a premise of the orders made by Warnick J on 29 July 2004).
However, the Court then proceeded to list the proceedings for trial directions before a Registrar. One assumes, although it is not clear, that the anticipated trial related solely to recovery proceedings, because that was the scope of the leave given on 19 June. However order 4 provided:-
If trial proceedings have not been conducted and determined by 3 February 2013 (when the child [C] turns 18 years) all proceedings concerning him on that date be dismissed.
No such proceedings were conducted and determined by 3 February 2004 and therefore that order has effected the dismissal of proceedings with respect to C.
In the ex tempore reasons given on 2 July 2012, the Court said as follows:-
41. In relation to the father’s application for release of para.2 of the undertaking 3 June 2004, usually undertakings, by their nature, are voluntarily given, as opposed to injunctions which are court sanctions imposed upon people. Thus, usually, voluntarily undertakings can, on notice to the court, be retracted.
42. However if the court accepts a voluntarily undertaking, and on the premise of that undertaking makes orders, then the undertaking, whilst given voluntarily, is of different effect, such that if the undertaking be withdrawn, or not abided, then all orders predicated upon the undertaking cease to have effect.
43. It is possible, however, for a person who has given a voluntary undertaking to seek to be released by the court from it. That is what the father seeks today in relation to para.2 of the undertaking given on 3 June 2004.
44. I have carefully considered whether I should do that on this interim basis and I have concluded that it would not be in [C’s] best interests that I do so particularly because the undertaking already allows the father to communicate with [C’s] school teachers and any treating professional persons concerning [C], in writing, to ask anything he wants to ask about any reports from such people, this aspect of the undertaking being linked with final order 5 of Warnick J’s orders made on 29 July 2004…
45. In all of the circumstances, I will dismiss all interim relief sought by the father.
Although there is no reference to it in the orders and reasons made 2 July 2012, in fact on 19 June 2012, the father had commenced further proceedings comprising the contempt application which is presently before me.
Since the orders and reasons of 2 July, the matter proceeded seemingly towards a trial, although as I have said, what is was to be a trial of, is not altogether clear. The only leave that had been given was for a recovery application to be filed, but the interim orders sought by the father in his Amended Initiating Application filed 18 November 2011, which included recovery orders in relation to C, were dismissed.
It appears possible that the Court, in dealing with the release from undertakings on 2 July 2012, was of the view that was a matter which could be determined on two occasions: firstly at an interim hearing, and secondly, at the final trial of the matter. If that was indeed the approach of the Court, I regret that I cannot support it. Either the father had leave to commence the proceedings or he did not. If he did not, then they should not have been progressed at all, much less towards a final trial of them.
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.
(b) Should the father be given leave?
It seems to me that the purpose of the father’s undertakings – which succeeded – was to persuade the Court that, if it was prepared to order ongoing contact between the children and the father, that could not, and would not, facilitate further conflict in this Court between the parties, without the Court’s express permission first obtained. As I read the reasons of Warnick J of 29 July 2004, the undertakings were a central platform of his Honour’s reasoning towards ordering that the father have contact with C.
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. I am mindful that, whilst leave to commence proceedings is not a parenting order as defined in s.64B of the Family Law Act, such that the paramountcy principle established by s.60CA is invoked, nonetheless insofar as the leave sought is to commence proceedings relating to children’s matters, in determining it I need to be mindful of what the High Court in CDJ v VAJ[1] described as the “constant shadow” of the paramountcy principle in child welfare cases. Particularly in this case, it seems to me that the father would need to be able to point to circumstances sufficient to outweigh the prospect of further perpetuation or aggravation of the mother’s symptoms arising from her post traumatic stress disorder. It is therefore with an eye keen to detect such matters that I review the orders sought by the father.
[1] (1998) 197 CLR 172 at [86] per McHugh, Gummow and Callinan JJ.
By “minutes of order sort (sic)” filed 31 January 2013, the father identified 18 orders that he asked this Court to make. It is unnecessary to set them out here. Many of them are remarkable. For instance, by proposed order 13, he sought an order that the mother pay his costs of the 2004 trial before Warnick J. He seeks a variety of findings including “that the mother has no willingness to promote and encourage a relationship between the children and their father now or in the past.” He also seeks findings that the mother has abused the court process, has knowingly perjured herself, and seeks a finding that she does not suffer from post traumatic stress disorder.
Equally remarkably, he seeks orders in relation to child support, including most remarkably that “the CSA court orders made in 2005 be revoked, varied or permanently stayed.”
Virtually all, if not entirely all, of these orders have no prospect of being made. In a very real sense, the applicant father 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 mother. 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 mother be punished for contempt filed 19 June 2012.
C. THE MOTHER’S APPLICATION TO AMEND
In her application filed 23 August 2012, the mother sought an order that the father be named a vexatious litigant. During the course of argument, the mother indicated that, in the event that the father’s applications were dismissed, and the court found that he is bound by the undertakings given to the court in 2004, she did not press for such an order. By her minutes of orders sought filed 13 February 2013, and by application made at the commencement of the hearing before me, the mother sought further orders as follows:-
3. That leave be granted pursuant to s.112 of the Child Support (Assessment) Act 1989 for the court to make an order under s.118 of the Child Support (Assessment) Act 1989 for the periods:-
6th September, 2010 to 28th October 2010;
12th November 2010 to 16th June 2011;
16th May 2011 to 28th August 2012
4. That pursuant to s.118 of the Child Support (Assessment) Act 1989 there be a departure from administrative assessment in relation to the children [B] and [C] born … 1993 and … 1995 respectively, for the periods mentioned in 3 above and that:-
(a) the respondent’s liability for child support for these periods be reduced to reflect the number of children in [Mr Hopkins’] care during these periods.
(b) the applicant’s liability for child support remain unchanged because of this reassessment.
These amendments were opposed by Mr. Green, who appeared as counsel for the Child Support Registrar. The essential basis upon which he opposed the amendments were that they were futile, as there was no reasonable prospect of such orders ever being granted. I therefore turn to consider the merits of the claims sought to be advanced by the mother.
There are two potential pathways by which the mother may seek to approach this court for an order under s.118 of the Act. The first is that which is referred to in para.3 of the mother’s minutes of order, namely s.112. Subsection 2 of that section provides as follows:-
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
The alternative and potentially stand alone basis is if the mother satisfies the requirements of s.116(1)(b). Relevantly that sub-section provides as follows:-
A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, applied to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:-
(a)…
(b) both of the following apply:-
(i)the liable parent or carer entitled to child support is a part to an application pending in a court having jurisdiction under this Act;
(ii)the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child and the special circumstances of the case;
…
In relation to this second provision, Mr. Green said firstly, that the mother could not establish special circumstances sufficient to justify an order, and secondly, even if she could establish such circumstances, because the facts relating to her application were quite different to those relevant to the other applications pending before me, it could not be said that it was in the interests of the parties to have the application for orders under s.118 of the Act determined at the same time as those other applications. In that regard, he referred me to the decision of Justice Kay in McGuiness v Cowie (2002) FLC 98-018, and specifically drew my attention to paras.[3] and [50] of the Reasons.
However I think that there are two answers to the points made by Mr. Green. The first is that the special circumstances requirement does not apply to the alternative pathway available to the mother under s.112(2) of the Act. Therefore even if I were to conclude that there were not special circumstances, that would not preclude the mother being able to nonetheless be deemed to have made an application under. S.116 by virtue of the operation of s.112(2). That would therefore not be a basis for refusing the application to amend.
Secondly, in the ordinary course, I do not think that an analysis of the degree of overlap between the facts relevant to extant applications and the facts relevant to the proposed amendments – which involve questions of extent and degree – is something which could be a basis for refusing an application to amend. They are matters which would go more to whether or not the application ultimately should succeed or fail. In any event, even if I were of the view that there was no reasonable prospect of showing sufficient overlap of the facts to satisfy the requirements of s.116(1)(b), it is a different test which applies under s.112(2), namely, I would only need to be satisfied that it is in the interest of the parties to resolve both the s.111 application and the 118 application at the same time. In saying this I am mindful that the mother’s Minutes of Orders Sought does not specifically seek a grant of leave to make an order under s.118 pursuant to s.111(1), but inferentially that must be what she is seeking in addition to an order under s.112, otherwise there would be no opportunity for s.112 to be invoked.
However Mr. Green advanced a further argument, namely that an order under s.118 simply identifies the types of orders which might be made under Division 4 of Part 7 of the Act. Within that Division is s.117 which, by subsection (1), provides the preconditions for a court making an order under the Division. One of those conditions is established by s.117(1)(b)(i), namely that one or more of the grounds of departure mentioned in subsection (2) exists or exist. Mr. Green argued that none of the grounds for departure in s.117(2) were, or could be, established.
To understand that argument one needs to consider the basis upon which the mother seeks orders under s.118. It is that during periods during which the assessment in question related, the liable parent was in fact also the residence parent, but the change of residence of the child was not notified to the CSA. Therefore the mother does not complain that the child assessment formula, as applied to the relevant facts, produced an unjust or an equitable outcome, but rather a more fundamental matter, namely that the formula was applied to incorrect facts.
Mr. Green argued that all of the grounds for departure specified in s.117(2) were directed towards special circumstances which arose because the otherwise proper application of the formula produced an unjust or inequitable result. He further said that there was no ground for departure identified anywhere in s.117(2) which applied or could be invoked where all that had occurred was that the parents had failed to notify the CSA of the change of residence of a child, in consequence of which an incorrect assessment ensued.
In my view, that argument is correct.
The Act, in ss.54F, 54G and 54H, specifically contemplates a revisitation of an assessment where the care arrangements of the child in question changes. Indeed it is common ground that the mother has sought to have relevant determinations revoked under those provisions, albeit with limited success. That is likely because pursuant to s.54G(1)(d) there is a requirement, in order for a Registrar to revoke the determinations, that they notify the Registrar “within a period that the Registrar considers reasonable in the circumstances.” It appears likely – although I do not and cannot decide – that here the Registrar did not consider the time of notification of the change in the care arrangements for the relevant children to be reasonable in the circumstances, and accordingly only revoked the determinations from the date of notification. As Mr. Green conceded, that is a decision which, in the ordinary course could be reviewed, with such appeal rights as the Act provides for in the event that the review was unfavourable. That is the regime which the Act contemplates as applying to changes of the circumstances relating to the care of the children the subject of the assessment. It does not contemplate that such changes, without more, are grounds for departure under s.117(2).
I accept that the mother is likely out of time to seek a review of the Registrar’s determination, but that is a matter which is not incapable of remedy, and in any event, even if it were incapable of remedy, would not be a basis for construing s.117(2) other than in accordance with its proper interpretation.
It therefore follows that in my view the mother’s proposed application under s.118 has no reasonable prospects of success, and is foredoomed to fail, and therefore to permit the mother’s extant application to be amended to seek orders under s.112 and 118 would be futile. I therefore decline to amend the mother’s application.
D. CONCLUSION
I will hear the parties further as to such other orders as may flow from these orders and reasons.
I certify that the preceding fifty six (56) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 1 May 2013.
Associate:
Date: 1 May 2013
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