Ivanovic v Ivanovic

[1996] HCATrans 365

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B24 of 1996

B e t w e e n -

MILAN IVANOVIC

Applicant

and

JENNIFER JOY IVANOVIC

Respondent

Application for special leave to appeal

GAUDRON J
McHUGH J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON MONDAY, 2 DECEMBER 1996, AT 12.38 PM

Copyright in the High Court of Australia

MR G.K.W. PAGE, SC:  If the Court pleases, I appear with my learned friend, MR. K.A. McMILLAN, for the applicant in this matter.  (instructed by McCarthy Palethorpe & Blanch)

MR R. GALLOWAY:   If the Court please, I appear for the respondent.  (instructed by Marrinans Solicitors)

MR PAGE:   The application concerns, principally, the interpretation of the powers given to the court by the Child Support (Assessment) Act 1989 to make or vary assessments of child support issued by the child support agency. In particular, it concerns any power given to the court to add lump sums to periodic assessments without the necessity ‑ ‑ ‑

GAUDRON J:   Yes, we have read the papers.  We are familiar with the issues.  What is your point of principle in this case?

MR PAGE: The point of principle is this: that the powers purported to be used by the court to add the lump sum do not constitute a head of power - that is, Part 7 does not constitute an independent head of power to a court to add a lump sum to a periodic assessment without a carer having gone through the fairly convoluted and careful scheme of review and appeal that is available in other parts of the Act.

GAUDRON J:   That is contrary to the Full Court’s decision in Lightfoot, is it not?

MR PAGE:   No, it is consistent with that majority decision, in my submission, that it does not have that power.

GAUDRON J:   Lightfoot allowed that it had that power in special circumstances, did it not?

MR PAGE:   Yes, it did, and in that respect we say it was not correct.

GAUDRON J:   Was that challenged below?  Was that argument put in the Full Family Court?

MR PAGE:   It was not possible.  Lightfoot’s decision had not been made available by the time that Ivanovic was determined below.  The argument that was put was quite clearly that there was no independent head of power and that was the argument that concerned the Full Court.  The Full Court then turned ‑ ‑ ‑

KIRBY J:   So that there were two appeals running parallel before the Full Family Court and they both came down with decisions which held that the power exists.

MR PAGE:   They did, with reservations.

KIRBY J:   Here is a federal statute.  It is a statute which is of special concern to the Family Court.  The Family Court has given its decision on the matter, why should we intervene?  It is just the interpretation of some rather cumbersome federal legislation.  It does not seem to be something that would attract our attention.

GAUDRON J:   When you address that question, you might be kind enough to tell us why the argument you now put bears no relationship with your draft notice of appeal or with your reasons in support of the application.

MR PAGE: Can I address the first of those? Perhaps the second would be more apposite. The notice of appeal was an error - it is a draft notice of appeal - should have included the challenge that is made to Part 7 of the Child Support (Assessmen)t Act.  It did not.  It only sought to challenge whether one Full Court should be bound by another decision, and if leave was granted, leave would be sought to amend that notice of appeal to include that.  However, the statement ‑ ‑ ‑

GAUDRON J:   You would want an entirely new notice of appeal - an entirely new notice of appeal if leave were granted.

MR PAGE:   Within my submission would be an addition to that because the discussion that the Full Court entered into in relation to whether it was bound by its own decisions was a point that arose out of the decision in Ivanovic, and one which we challenge, albeit that it was obiter.

McHUGH J:   I have to say, Mr Page, at this moment I still do not understand what the special leave point is.  I may be confused, but the special leave question stated in your summary of argument seems to me to be different from the argument that you are now putting.

MR PAGE:   No, it is not, with respect.

McHUGH J:   Could I just ask you this:  the present case purported to follow Lightfoot and Hampson and they held that upon the facts of this case there were special circumstances which enabled an order to be made.  What is the special leave point arising from that statement of facts?

MR PAGE:   Your Honour, I take issue with the fact that Lightfoot, in fact, found that there was power in Part 7 of the Act to make an order of the type that was made. The majority decision, the decision of Justice Fogarty in particular, clearly showed that he did not consider that there was such a power and nor did he consider that section 125 provided that power in any way, even if there were special circumstances. The court, in Ivanovic ‑ ‑ ‑

GAUDRON J:   I can take it, Mr Page, that at page 85 of Lightfoot and Hampson in the judgment of Justice Fogarty, it is expressly acknowledged that in special circumstances - that there may be special circumstances justifying a non‑credit against all or part of the existing assessment.

MR PAGE:   Yes, but your Honour, that is a secondary consideration only deriving to the court after it has determined to make a lump sum order.  It must exercise its powers under sections 123 and 124 before it can consider whether to give a credit against the assessment or not to do so in terms of section 125.  The Full Court, in Lightfoot and Hampson, determined that there was no such power in Part 7, and that was what the majority concluded.

The point that arises in this application is this:  that in Ivanovic the Full Court determined that it would not differ with the decision of the majority in Lightfoot and Hampson, but it then purported to use the powers in section 125 to say that Justice Fogarty’s consideration in Lightfoot of the special circumstances that might arise were too confined and that Justice Warnick, at first instance and in Ivanovic, had been quite correct.  They purported to find a head of power then in section 125, and that is what we challenge because we say that the head of power, if any, must derive from section 123 and 124, and that section 125 is then only a machinery provision, and that really is ‑ ‑ ‑

GAUDRON J: Are we concerned only with the interrelationship then between sections 123, 124 and 125 of the Family Law Act?

MR PAGE:   No, it is the Child Support (Assessment) Act.

GAUDRON J:   Child Support, yes, sorry.

MR PAGE:   We are not dealing with the Family Law Act at all at the moment, we are dealing with Division 5 of Part 7 of the Child Support (Assessment) Act.

GAUDRON J:   But we are concerned only with the interrelationship of those three sections - 123, 124 and 125.

MR PAGE: Yes, for the moment, but I will be relying upon the other sections within that division to endeavour to show that the whole of Division 5 of this part is simply a bundle of machinery provisions that is intended to cover a situation which might arise where there is in force a periodic assessment issued by the child support agency, and where it is thought just and equitable to order part of that periodic assessment paid in a lump sum.

The point that was raised in Ivanovic was this: that the child support agency issues a child support assessment. It is always a periodic assessment and that is part of the scheme of this legislation, that Part 7 of the Act gives certain powers to the Court to make departures from, or hear appeals from, those assessments. But, Division 5 is the only power, if it is, that looks to payments made to a carer in a form other than a periodic payment. It is specifically worded to show that it is a change of the periodic assessment that is anticipated, not an additional lump sum. That was the argument that was advanced to the Full Court in Ivanovic.

GAUDRON J:   But is there not a statutory provision which authorises the court to determine whether or not it is going to be credited?

MR PAGE:   Yes, there is, and that is section 125. That is the only section that considers whether special circumstances exist to determine whether it will or will not be credited. But before that happens, the Court must have exercised the powers it is given in sections 122, 123 and 124. It must have determined to order part of the periodic assessment paid by way of lump sum.

GAUDRON J:   It has, in this case.  It has determined that.

MR PAGE:   With respect, it did not.  It added to the periodic assessment by ordering the $20,000 paid in addition to the periodic assessment that was made and that is where, we say, the issue arises; that nowhere in that part is power given to add to a periodic assessment, because the part itself talks of ‑ ‑ ‑

GAUDRON J:   But that follows from section 125.  If section 125 is to have any meaning, then it must follow that the power exists under 122, 123 and 124 for there to be ‑ ‑ ‑

MR PAGE:   With respect, that does not follow, in our submission.  Justice Fogarty, in Lightfoot, used examples as to when he considered that a credit might be given, or might not be given.  They all related to matters that arose out of the periodic assessment.  For instance, if school fees had been included in the periodic assessment and had not been paid, then it might be ordered that they, indeed, be paid by lump sum, but not credited.  Or, a carer had incurred interest on moneys which she had borrowed to cover support which had not been paid.

GAUDRON J:   Or, as in this case, the husband had reduced his earning capacity.

MR PAGE:   He had.  He was found to have reduced his earning capacity, and his Honour held that there were special circumstances that warranted the fees being paid.  But the fact is that the fees had not been ordered to be paid, or assessed to be payable, in any of the procedures that were developed earlier in the Act by way of departure or appeal; whereas, in other cases they are.

KIRBY J:   So, your point is that the court has misapplied the statute.  Now, I would like you to come back to what I asked you earlier.  We cannot fix up every case where a court misapplies a statute; it just is not feasible.  Therefore, what we have got to ask ourselves is, what is it in the construction of this rather ungainly legislation that makes it a matter that should pass under the attention of this Court?  You will remember I asked you that, and you have not answered it.

MR PAGE:   Well, there were several questions.

KIRBY J:   I mean, what is the point of principle or importance, because it is inevitable that there will be different views about the construction of federal legislation, especially legislation as cumbersome as this one.  So, why should we just not leave it where the Family Court has left it?

MR PAGE:   Can I answer your first question, that the point of public importance is, firstly, that there are a large number of people who are affected by this legislation; secondly, that if there is power in Part 7 to add to an assessment, then it appears to be limited in no way by the previous portions of the legislation which dictate that there be special circumstances. A carer might obtain an assessment and go immediately to a court to obtain a lump sum in addition to that assessment, without involving him or herself in any of the departure and appeal procedures which this scheme clearly sets out as are essential for there to be a just determination of child support.

Without those provisions being invoked, then there is a likelihood that there will be an absence of justice in the determination of what is proper child support. That is the importance that we say arises from the submission that there is no power in Part 7 to provide this lump sum payment in addition to a periodic assessment.

McHUGH J:   But the Full Court, in the present case, did not think they were departing from Lightfoot and Hampson, did they?  They thought they were simply applying it.

MR PAGE:   No, they said they would not depart from Lightfoot and Hampson and, in my submission, they promptly did so by ‑ ‑ ‑

McHUGH J:   How is that a special leave point?

MR PAGE:   Because it is my submission that the Full Court of the Family Court differs from other courts which are determined to be final courts of appeal, and that that court should be bound by its own decisions.

McHUGH J:   But it was bound by its own decision.  That is the difficulty I have with the whole of your summary of argument.  At best, it seems to me the Full Court, in the present case, misapplied Lightfoot and Hampson and misinterpreted “special circumstances”, or what could constitute “special circumstances”.  But they accepted that Lightfoot and Hampson is the governing authority.  The next judge that deals with it will apply Lightfoot and Hampson.

MR PAGE:   Yes, they did that.  That is correct.  But they purported to do it, and then promptly did something completely inconsistent with that decision, which was to make the order which Lightfoot and Hampson said the Court had no power to do, and that is the point ‑ ‑ ‑

McHUGH J:   Well, that simply means that they just misapplied the law in a particular case.  That is not a special leave point, Mr Page.

MR PAGE:   My submission is that then leads to the question as to whether the Court has this power or not.  The conflict between these two cases gives rise to that point of importance.  Those are my submissions.

HER HONOUR: The applicant contends that this case raises questions as to the interpretation and interrelationship of ss 122, 123, 124 and 125 of the Child Support Assessment Act 1989 (Cth). Those questions have been answered in the case of Lightfoot and Hampson (1996) 20 Fam LR 69. Moreover, they are questions which are appropriately answered by the Family Court and they do not give rise to any issue warranting the grant of special leave. Special leave is therefore refused.

MR GALLOWAY:   If it should please the Court, I seek an order for costs.

MR PAGE:   I have nothing to say in addition to that that is in the outline, your Honours.

HER HONOUR:   It is not a jurisdiction in which costs are ordinarily made, is that so?

MR GALLOWAY:   If it should please the Court, that might once have been thought to be the case. Section 117 of the Family Law Act has application.  It certainly says that costs are not ordinarily awarded.  But then in its subsequent subsections it indicates that there are special circumstances where that may occur.  The circumstances in this case that in my submission would warrant an order for costs are that this is now the fourth Court that the husband has gone to and been unsuccessful at.  He has been ordered to pay costs below and below that and, indeed, below that again.  As is evident from the materials, the wife is in a very parlous situation financially and has, of course, lived without the maintenance and child maintenance that the husband was obliged to pay.  She is not, I can inform this Court, legally assisted and she would otherwise be seriously damaged by not having the benefit of an order for costs.  May it please the Court.

HER HONOUR:   Yes.  There will be an order for costs.  Special leave is refused with costs.

AT 12.59 PM THE MATTER WAS CONCLUDED