I v Y - [2017] WASCA 75

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: I -v- Y [2017] WASCA 75

CORAM: MURPHY JA
MITCHELL JA

HEARD: 13 APRIL 2017

DELIVERED : 13 APRIL 2017

PUBLISHED : 18 APRIL 2017

FILE NO/S: CACV 74 of 2016

BETWEEN: I
Appellant
AND
Y
Respondent

ON APPEAL FROM:
Jurisdiction              :  FAMILY COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE KAESER
File No  :PTW 230 of 2010

Catchwords:

Family law - Child support payments - Appeal from determination that the appellant was the father of the respondent's child - Application for an extension of time to appeal

Courts and Tribunals - Jurisdiction of courts - Whether Court of Appeal has jurisdiction in the appeal - Whether transfer to the Family Court of Australia is appropriate

Legislation:

Child Support Assessment Act 1989 (Cth), s 99, s 102A, s 106A
Family Law Rules 2004 (Cth), r 1.14, r 22.03
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 4, s 5, s 7

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: No appearance

Solicitors:

Appellant: In person
Respondent: No appearance

Case(s) referred to in judgment(s):

Allan v Allan [2014] FamCAFC 162; [2014] FLC 93‑606
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101
DKG v SJB [2016] WASCA 149
Gallo v Dawson (1990) 64 ALJR 458
OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95
Taylor v Taylor (1979) 143 CLR 1
REASONS OF THE COURT:
(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

Background

On 18 October 2010, the Magistrates Court of Western Australia, constituted by a family law magistrate, made an order under s 106A(5)(a) of the Child Support (Assessment) Act 1989 (Cth) (Act) (Child Support Act). The effect of that order was that the respondent was entitled to an administrative assessment of child support for a child, payable by the appellant, because the appellant was a parent of the child. Section 106A provides for a court having jurisdiction under the Act to make such a declaration where the Child Support Registrar refuses to accept an application for administrative assessment of child support because he or she is not satisfied that the person who was to be assessed in respect of the costs of the child is a parent of the child. Subject to certain conditions, the Magistrates Court had federal jurisdiction to make such a declaration under s 99(2) of the Child Support Act.
The appellant, who was not present at court on 18 October 2010, claims that he was not aware of the hearing at the time the declaration was made. The appellant has deposed that he only became aware of the declaration after he received a letter from the Child Support Agency in April 2011, notifying him of outstanding child support payments. The appellant says that he unsuccessfully tried to obtain information about the case from the Family Court of Western Australia but only 'managed to obtain' a copy of court documents in 2015.
The appellant seeks to appeal against the declaration, essentially on the ground that he was not notified of the hearing on 18 October 2010 before the declaration was made. He also contends, in effect, that the evidence before the Magistrates Court was not sufficient to enable it to conclude that he is in fact the father of the child. The respondent's application for a declaration was accompanied by an affidavit which deposed to sexual relations with the appellant on two occasions falling within 'the window of opportunity for the conception of the Child'. The affidavit did not state whether or not she had sexual relations with any other person in that period.
The appellant seeks to rely on his evidence as to oral admissions which he contends the respondent made indicating that she had sexual relations with other men during the relevant time. The appellant also seeks to rely on an email of 15 July 2008, in which the respondent referred to her belief 'without the benefit of accurate testing that you may be the father'. In that email the respondent referred to the appellant wishing 'to take full responsibility for the child if it happens to be yours'.

Appeal notice and application for an extension of time to appeal

On 1 August 2016, the appellant filed an appeal notice in this Court purporting to appeal against the orders made by the Magistrates Court on 18 October 2010. He also filed an application in support of an extension of time to appeal.
The application for an extension of time was heard by Newnes and Murphy JJA on 1 February 2017. The appellant did not appear at that hearing, and the application for an extension of time to appeal was dismissed. The court also ordered that the appellant have liberty to apply to vary or set aside the order dismissing his application for an extension of time to appeal within 14 days.
On 15 February 2017, the appellant filed an application in an appeal, seeking an '[e]xtension of time to appeal until 30 April 2017'. The appellant filed an affidavit explaining, in effect, that he did not attend the hearing on 1 February 2017 because he misunderstood a notice he received from the court advising him that his application for an extension of time had been adjourned to that date. This application in an appeal has been listed for hearing today.

Jurisdiction of this court to hear the appeal

Before turning to the merits of the application, it is necessary to consider this court's jurisdiction to hear the appeal. It is vital to determine at the outset whether a court whose jurisdiction is sought to be invoked in fact has jurisdiction: Boensch v Pascoe [2016] NSWCA 191; (2016) 311 FLR 101 [10] and cases there cited.
Part 7 div 1 of the Child Support Act makes provision for appeals against decisions of courts made under the Act. Relevantly, s 102A(1A) provides that an appeal lies to the Family Court of Australia from a decree of the Magistrates Court of Western Australia, constituted by a family law magistrate, exercising original jurisdiction under the Child Support Act. There is no provision of the Child Support Act which confers a right of appeal from the Magistrates Court exercising jurisdiction under that Act to this court.
The appellant's notice of appeal refers to s 69S of the Family Law Act 1975 (Cth) as the legislation which allows the appeal. However, that section provides for presumptions of parentage which arise from the findings of certain courts, and does not provide for any right of appeal. Sections 69H ‑ 69J of the Family Law Act confer jurisdiction in relation to matters arising under Part VII of that Act (relating to children) on specified courts which do not include this court.
Section 210A of the Family Court Act 1997 (WA) provides for an appeal from decrees made by the Magistrates Court, constituted by a family law magistrate, in the exercise of non-federal jurisdiction. That section does not confer a right of appeal to this court in the present case, where the Magistrates Court was exercising federal jurisdiction in a matter arising under the Child Support Act.
However, this court does have federal jurisdiction in the matter by virtue of s 4(1) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross‑vesting Act). That section relevantly provides:
Where:
(a) the … Family Court has jurisdiction with respect to a civil matter, …; and
(b) the Supreme Court of a State … would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c) in the case of the Supreme Court of a State … that court is invested with federal jurisdiction with respect to that matter
The reference to the 'Family Court' in this section is to the Family Court of Australia (see s 3(1) of the Cross‑vesting Act). In this case, the Family Court of Australia has jurisdiction to hear appeals from the declaration made by the Magistrates Court. This court is a division of the Supreme Court of Western Australia: s 7(1)(b) of the Supreme Court Act 1935 (WA). This court would not, apart from s 4(1) of the Cross‑vesting Act, have jurisdiction with respect to the matter. This is a civil matter. This court therefore has jurisdiction to hear the appeal under s 4(1) of the Cross‑vesting Act: see OHB v MTM [2007] WASCA 6; (2007) 207 FLR 95 [12].
Section 7 of the Cross‑vesting Act provides for certain restrictions in respect of appeals, but none of those restrictions apply in the present case. We note that s 7(4) of the Cross‑vesting Act provides that:
An appeal shall not be instituted from a decision of a court of summary jurisdiction of a State to the Supreme Court of the State if an appeal lies from that decision to the State Family Court of the State.
However, in the present case no appeal lies to the Family Court of Western Australia.
This is not a special federal matter to which s 6 of the Cross‑vesting Act applies.

Transfer of proceedings

It is also necessary to consider the operation of s 5(1) of the Cross‑vesting Act. Section 5(1)(b)(ii) applies where it appears to this court that, having regard to the following matters, it is more appropriate that this proceeding be determined by the Family Court of Australia. The matters to which this court is required to have regard in making that assessment are:
(A) whether, in the opinion of [this court], apart from this Act and any law of a State relating to cross‑vesting of jurisdiction and apart from any accrued jurisdiction of the … Family Court, [this appeal] would have been incapable of being instituted in [this court] and capable of being instituted in the … Family Court;
(B) the extent to which, in the opinion of [this court], the matters for determination in the [appeal] are matters arising under or involving questions as to the application, interpretation or validity of a law of the Commonwealth and not within the jurisdiction of [this court] apart from this Act and any law of a State relating to cross‑vesting of jurisdiction; and
(C) the interests of justice;
Section 5(1)(b)(iii) applies where it appears to this court that it is otherwise in the interests of justice that the appeal be determined by the Family Court.
The general principles governing the exercise of power under s 5 of the Cross‑vesting Act were considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400.
Where it appears to this court that, having regard to those matters, it is more appropriate that this proceeding be determined by the Family Court of Australia then this court is required to transfer the proceedings. It may do so of its own motion under s 5(7) of the Cross‑vesting Act.
Apart from the Cross‑vesting Act, this court would not have jurisdiction to hear this appeal. The appeal would have been capable of being instituted in the Family Court of Australia. The matters for determination in the appeal are matters arising under and involving questions as to the application of a Commonwealth Act, namely the Child Support Act. Those matters are not within the jurisdiction of this court apart from the Cross‑vesting Act. The State law relating to cross‑vesting of jurisdiction, the Jurisdiction of Courts (Cross‑vesting) Act 1987 (WA), does not invest this court with federal jurisdiction in matters arising under the Child Support Act. The Commonwealth Parliament has specifically provided for appeals from the Magistrates Court exercising jurisdiction under the Child Support Act to be determined by the Family Court of Australia rather than this court. There is no valid reason why an appeal could not have been instituted in the Family Court of Australia. These factors count in favour of making a transfer order.

Merits of the application for an extension of time to appeal

However, it is also necessary to consider whether the interests of justice would be served by making a transfer order. A relevant consideration is whether the application for an extension of time in which to appeal has any merit. If that application is clearly without merit, there would be no point in transferring the appeal to the Family Court. Such a transfer would unnecessarily cause inconvenience to the appellant and consume additional judicial resources of the Family Court when it came to deal with the matter.
An application for leave to appeal from the Magistrates Court constituted by a family law magistrate must be filed within 28 days after the date the order appealed from was made or such further time as the court allows: s 102A(4) of the Child Support Act read with r 1.14 and r 22.03 of the Family Law Rules 2004 (Cth). The time for filing an application for leave to appeal expired on 15 November 2010. The appeal notice was filed about 5 years 9 months after the time for doing so expired.
In exercising the discretion to grant an extension of time under the Family Law Rules, the Family Court regularly applies the principles stated by McHugh J in Gallo v Dawson (1990) 64 ALJR 458: see, for example Allan v Allan [2014] FamCAFC 162; [2014] FLC 93‑606 [37]. The court considers the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of either the grant or refusal of leave. The prospects of the proposed appeal are also relevant. The object of the inquiry is to ensure the time limitations imposed by the Rules do not become instruments of injustice.
There are three matters which combine to count conclusively against the grant of an extension of time to appeal in this case.
First, the grounds of appeal do not appear to have any reasonable prospects of success.
Ground 1 contends that the appellant was not notified of the hearing on 18 October 2010. In considering this ground, it is relevant to note the following chronology which appears from the Magistrates Court file:
1.On 22 February 2010 the Magistrates Court made orders for service of the respondent's applications on the appellant, by requesting the Child Support Registrar to forward the application to him at the address shown on the Child Support Registrar's records. The matter was otherwise adjourned for directions on 26 March 2010.
2.On 22 March 2010 the Child Support Registrar advised the Family Court of Western Australia that documents had been sent to the appellant's last known address;
3.The appellant did not appear at the hearing on 26 March 2010, and the court adjourned the respondent's application for hearing on 29 April 2010.
4.On 29 March 2010, the Deputy Registrar of the Magistrates Court wrote to the appellant, c/- the Child Support Agency, noting the hearing on 26 March 2010 at which the appellant did not appear. The letter said:
The presiding Magistrate directed that this letter be forwarded to you advising that the proceedings have been adjourned for a further hearing on 29 April 2010 at not before 2.15pm for a Special Appointment. Failure to either attend on this occasion or to arrange for a legal representative to appear on your behalf may result in orders being made in your absence.
5.The appellant responded to the registrar's letter by letter dated 1 April 2010 and received by the court on 7 April 2010, in which he noted the 'paternity claim on behalf of' the respondent. The letter, which did not have a return address or any contact details, made a number of allegations about the respondent.
6.At the hearing on 29 April 2010, which the appellant did not attend, the Magistrates Court ordered the parties to undergo parentage testing procedures within 42 days, and gave the respondent liberty to re-list her application thereafter.
7.On 14 September 2010, the respondent wrote to the Principal Registrar of the Family Court of Western Australia, advising that she had been unable to contact the appellant and requesting the matter be relisted.
8.The declaration was made at the re-listed hearing on 18 October 2010.
It appears from the Magistrates Court file that the appellant was aware of the proceedings in that court and, despite being advised of the consequences of not attending the hearing of 29 April 2010, chose not to participate in them and not to provide, even informally, any contact address. The appellant cannot reasonably complain about lack of notice of the hearing of 18 October 2010 in these circumstances.
Proposed ground 2 complains that the appellant was not notified of the declaration after it was made. That assertion does not provide a basis for impugning the making of the order.
Proposed grounds 3 and 5 in effect challenge the Magistrate's Court's finding of paternity, principally by reference to material not in evidence before the Magistrate's Court but which would have been available to the appellant at the time of the hearing on 18 October 2010. The material on which the appellant relies is not of a kind (such as results of a DNA test) which establishes that he is not the father of the child. The material before this court does not provide any proper basis for this court to overturn a factual finding that the appellant is the child's father. The only evidence before the Magistrates Court of sexual activity by the respondent at the relevant time was sexual activity involving the appellant.
Ground 4 asserts unspecified failures to observe the requirements of s 69S of the Family Law Act, and does not indicate any arguable error by the Magistrates Court.
For the reasons just given, none of the proposed grounds of appeal have any reasonable prospect of success.
Secondly, there is a long unexplained period of delay in instituting this appeal from April 2011, when the appellant says that he was notified of outstanding payments under a child support assessment. In that time, the respondent would have received the benefit of child support payments based on an order which the appellant now belatedly seeks to reverse. The appellant's affidavits contain a number of general statements, not supported by any relevant documentation, about difficulty in obtaining information about the Magistrates Court proceedings. However, there is no specific or adequate explanation of why a notice of appeal could not be filed until 1 August 2016. Further, the copy of the Magistrates Court file transmitted to this court contains a letter from the appellant dated 20 May 2011, and received on 24 May 2011, which indicates that the appellant is aware of the 'determination that I am the father of the child'. The appellant also wrote to the Principal Registrar of the Family Court of Western Australia on 28 September 2011 requesting reconsideration. He was subsequently advised that this letter was returned without action because it was not copied to the respondent.
Thirdly, so far as the appellant contends, in effect, that the declaration was made without notice to him, it is relevant to note an alternative avenue of relief. The Magistrates Court has inherent, or implied, power to set aside orders made without notice to a party and rehear the matter on the basis that the hearing took place in the appellant's absence: Taylor v Taylor (1979) 143 CLR 1; DKG v SJB [2016] WASCA 149 [4]. The Magistrate's Court file indicates that the appellant has adopted this course by an application filed in that court on 19 January 2017. The availability of an alternative avenue of relief counts against the grant of an extension of time in which to appeal.

Conclusion and orders

In all the circumstances, we are not satisfied that the application for an extension of time in which to appeal should be allowed. In circumstances where the extension of time must be refused, there is nothing to be gained by transferring the appeal to the Family Court of Australia. The interests of justice favour this court dealing with, and refusing, the application for an extension of time to appeal, rather than transferring the appeal to the Family Court of Australia. In all the circumstances, it does not appear to us that it is more appropriate to transfer the appeal to the Family Court of Australia.

For these reasons, the application in an appeal filed on 15 February 2017 should be refused, and the appeal dismissed.