J & F

[2002] FamCA 1067

[2002] FamCA 1067

FAMILY LAW ACT 1975

IN THE FAMILY COURT
OF AUSTRALIA  Appeal No SA76 of 2002
AT MELBOURNE  File No (P)MLM2799 of 2002

BETWEEN:

J
Appellant Father
- and -

F
Respondent Mother

CHILD REPRESENTATIVE

REASONS FOR JUDGMENT

CORAM:  THE HONOURABLE JUSTICE KAY
DATE OF HEARING:                 8 November 2002
DATE OF JUDGMENT:             8 November 2002

APPEARANCES:  The appellant in person.

The respondent in person

Mr Combes of Counsel, instructed by, Heneghan McLean, Solicitors, DX 30216, Richmond appeared on behalf of the Child Representative.

CHILD SUPPORT – Application for departure from assessment 
CHILDREN - Contact - Best interests

The parties, who had never married, had an 18-month-old child who lived with the wife. 

Hartnett FM made orders for contact with the father, and refused to deal with his application for departure from a child support assessment saying that the father should first seek administrative review of the assessment.

The father appealed.  In relation to the child support matter, he relied on a form provided by the Child Support Agency which suggested that he had the right to have the matter heard together with the contact matters.

In relation to contact, he sought the reinstatement of an arrangement whereby he collected the child for midweek contact from the maternal grandmother’s house rather than the mother’s house.  He also sought the extension of his midweek contact from 7pm until 7.15 pm, and of his weekend contact from every second weekend to every weekend.

Held: allowing the appeal in part and re-exercising the discretion

• While there might be some question as to whether the learned Magistrate had applied the correct test in relation to the Form 63, ie whether it was in the interests of the parties to hear the application at the same time as she heard the contact application, as there were no longer any proceedings pending there was no remedy available to the father.

• As no one had requested that the learned Magistrate vary the contact orders so that the child be collected from the maternal grandmother’s house rather than the mother’s house, and as the mother did not object to it being reinstated, it was appropriate to do so.

• Otherwise, the contact orders were within discretion and no error was shown in the process followed.

APPEAL ALLOWED IN PART AND DISCRETION RE-EXERCISED
NO ORDER AS TO COSTS

1. This is an appeal against a series of orders made by Hartnett FM on 23 August 2002.  The appeal focuses on three areas of the orders made.

·     The refusal by the Magistrate to hear an application for a departure order that had been brought by the father.

·     Contact. 

·     Costs ordered by the Magistrate in respect of two sets of reserved costs.

1. The parties who, have never married, are the parents of X born in 2001.  At the time of the hearing before the Magistrate X was 18 months of age. 

1. The parties have had serious differences of opinion concerning the best interests of that child from the time of his birth, and litigation has been a continuing and perpetual process, both in the Federal Magistrates Court and in this court. 

Child Support

1. Even though no appeal lies from an order made under the Child Support (Assessment) Act 1989 without leave (s 102), I am content to deal with the appeal on its merits without applying the usual threshold tests for leave.

1. The father has been assessed to pay child support.  It appears that in respect of at least one period of child support he sought to complain that the assessment was too high because the income that was being attributed to the wife for the purposes of calculating the amount of child support was less than her actual income and, according to his assertion, had the actual income been calculated he would be entitled to a reduction of child support in the vicinity of something like $1200 per annum. The father also sought to complain that the amount of child support being assessed did not match the needs of the child. 

1. The process that the father chose to bring in respect of child support was to bring a Form 63 application in the Federal Magistrates Court to be heard at the same time as there were pending contested issues relating to contact.  He did so, he says, on a bona fide basis (and I accept him entirely on that point), he being in receipt of a document published by the Child Support Agency that occupies several pages.  It is headed “Your Application -  Changing Your Child Support Assessment In Special Circumstances.”  The document details the nature of an application for departure and the process to be undertaken which, under the terms of the Child Support (Assessment) Act 1989, prima facie is an application to the Agency itself for a departure. That is brought under the provisions of Part 6A of the Child Support (Assessment) Act.

1. The document, however, contains the following notation.  I would comment that it appears to be an inaccurate notation or a misleading notation and I propose in due course to draw the existence of this judgment to the attention of the Child Support Registrar so that the document may be perhaps appropriately amended.  It reads as follows:

“Court matters:  If you have any family law matters being considered by a court you can also ask the court to change your child support assessment at the same time.”

1. That notation attempts to paraphrase the provisions of s 115 of the Child Support (Assessment) Act. Division 4 of Part 7 of the Act empowers the Court to make orders for a departure from administrative assessment, but it limits the cases in which an application may be made to a court basically to cases which have already undergone the process of administrative review and an objection to administrative review under provisions of Part 6A of the Act.

1. It creates an exception. That exception is contained in s 115(c) (ii) and also in s 116(1B). The exception is as follows: If a person is a party to an application pending in the court having jurisdiction under the Act, and the court is satisfied that it would be in the interests of the carer entitled to child support and the liable parent for the court to consider at the same time as it hears that application whether an order should be made under this division in relation to the child in the special circumstances of the case.

1. Then the requirements that the parties first attend for internal administrative assessment may be waived.  That section creates a discretion in the court.  It does not create an automatic right in a party or even an expectation in a party that a court will consider a departure application at the same time as it considers other matters before the court.  At best, it creates a right for a party to seek the exercise of the discretion by the court.  It seems to me that any notation should warn the party that they may not necessarily obtain a hearing in a court and they may be still required to undergo the internal administrative processes.  Indeed that is what happened here. 

1. The Magistrate took the view in the circumstances of the case that it was inappropriate to deal with the child support application.  The reasons expressed by the Magistrate in respect of that are a little confusing and perhaps did not thoroughly give consideration to the issue at large that is required to be given consideration; namely, “is the court satisfied that it is in the interest of the carer entitled to child support and the liable parent for the court to consider at the same time as it hears the other application pending the departure application?”  That is the discretionary issue.  There are no guidelines laid down in the legislation as to the circumstances in which the court might consider it to be in their interests.

1. In this particular case the issue that the father was asking the court to consider in respect of the child support was capable of simple clarification.  It is correct that the application that he brought in respect of the child support did not give sufficient particulars to the reader of it to understand exactly what it was that the father was seeking.  The Form 63 application that he relied upon began as follows, and I read the relevant parts:
   “[Mr J] applies for the following orders: 

(1)      Departure from admin (sic) assessment of child support. 

…

GROUNDS OF APPLICATION

The application is made on the following grounds: 

(1)That the child support assessment has resulted in an unjust and inequitable determination of the level of financial support provided by myself, as it does not take into account [Ms F’s] correct income.

(2)Both parents are party to a pending court hearing under the Melbourne Family Court on 4 February 2002 under file number ML 3567/01.”

1. Somebody reading that application would not know exactly what it was that was being complained of.  The Magistrate drew this to the attention of the parties.  What was the assessment that was being challenged?  What period of time was it being challenged for?  In what manner was it being challenged?  These were not matters that were capable of being readily discerned from a reading of the notice itself, but they were capable of being readily ascertained from the lips of the husband in that his complaint was simply that for one particular year the assessment did not properly acknowledge the income of the mother.  He produced the relevant notice of assessment.  The mother had notice of it.  He detailed to the Magistrate the particular year in which he was concerned about and the amount by which he said the mother's income was understated.

1. One would have thought that these were issues capable of a fairly easy resolution before the Magistrate whilst the parties were there on other matters.  They did not require a complicated investigation.  To the extent that it saved the parties the time and effort of having to go through the process of review and then a further internal review, when they were already before a court and when they were already in disputation, it seems to me that it might have been more appropriate to simply have got on with the issues, unless there was strong objection forthcoming from the mother, which on my reading of the transcript was not the position.  It seems that the Magistrate more than the mother took the view that the case should not be allowed to go ahead.

1. She initially perceived that she had no discretion, but she quickly moved away from that position when she had a chance to read the relevant legislation and accepted that she did have discretion in the matter.  She said, however, when first considering this matter at page 35 of the transcript:

“…Now, it's still discretionary for the court. I can determine that I am satisfied that it would be in the interests of each of you to hear your departure application or I am not so satisfied under section 115 of the act. I have nothing before me that would make me satisfied I should hear a departure application on the basis of what is before me, which is a totally defective and inadequate application where there is no child support assessment in the application or the affidavit by either side, where I have no details as to the income that was assessed by the agency of each of you and I also determine that if you say that the wife's correct income wasn’t taken into account to determine the appropriate assessment, that’s a very easy matter to have at an internal review.”

1. After the relevant documentation was drawn to the attention of the Magistrate.  She said:

“…I am not satisfied that it would be in the interests of each of you to hear your departure application at the same time as I hear your contact application.  I am satisfied that your application as it is put before the court is inappropriate - you need to set out what you're departing from, what periods you're talking about and there's a very simple cost-effective avenue open to you, which you've chosen not to use to date, which is to go to the agency itself and apply for a review and you will be given a notice of decision and you'll be given reasons.  The other side will partake in the conference and the other sides will produce tax returns as required by a person conducting it.  You're not here on a departure application seeking a number of matters for which the court can exercise discretion and it should involve the court's time and judicial resources which are things like high cost of contact or that she has a business and that she's claiming a gross income less expenses and the expenses aren't justified and we're left with a net income that's questionable.

You're not in any of the categories that would make the court determine that this sort of departure application should be heard by it in these circumstances, even if I knew on your application what periods you were talking about and what quantums you were talking about.  Of course none of that is there and nor is it in your supporting material...”

1. She then went on repeating that the Form 63 was defective:

“…I’m not satisfied under section 115 that it is appropriate that I proceed to hear that departure application. I don't even have the necessary evidence before me to hear it and there is a very, as I say, cost-effective process available to you which you have had knowledge of and which again you were told of in April this year and you have elected to date, for reasons unknown to me and incomprehensible to me, to not take the path that is very clearly set out in the act that you were required to take and you haven't done it and you should do it.”

1. I should say that in fairness to the applicant the Magistrate perhaps has overstated the very clear path because of the discretion clearly exists.  The document published by the Agency, to which I have already referred, was misleading.  In the circumstances where the parties were before the court and there was no particular strong objection being taken to the matter being proceeded with, it might well have been the simplest way to deal with the matter to simply have got on with the child support application.  But the Magistrate in the exercise of her discretion chose not to do so.  She then dealt with the remainder of the application. 

1. My difficulty is that even if I were to find that the Magistrate erred in the exercise of her discretion, that error is incapable of easy remedy because if I were to send back the application for reconsideration by the Magistrate - that is, the exercise of the discretion - or even if I was to exercise the discretion myself, remission of the matter back to the Magistrate would leave the matter unsupported by the necessary application pending in the court having jurisdiction under the Act which is a prerequisite for it to be dealt with outside of the Agency process.

1. In those circumstances, in my view, the appeal in respect of the exercise of discretion by the Magistrate to refuse to hear the Form 63 is doomed to failure.  I repeat that perhaps the easiest method would have been to have dealt with it.  It was not dealt with.  I do not see that the father is particularly prejudiced in that he still has available to him the administrative remedies and, if unsatisfied with the administrative remedies, he can no doubt ultimately bring a Form 63 more detailed and showing precisely what it is that he is seeking and supported by appropriate material.  The sum involved is comparatively small.  The process is comparatively simple, albeit there will be delay involved.

Contact

1. I move to the second of the areas, and this concerns issues of contact.  In particular, the father is taking objection to three aspects of the complicated contact regime that was ordered by the Magistrate.  The child was, as I have already indicated, 18 months of age when the Magistrate dealt with the matter.  There was a Child Representative appearing for X. 

1. There were competing claims for contact being put forward by each of the parties.  The father had what I could call a request for an expansive regime.  The mother had what I would call a request for a restrictive regime.  The Child Representative put forward a series of suggestions that were somewhere in the middle. 

1. There was a report from Mr F, a psychologist.  Mr F was not required for cross‑examination.  Mr F indicated on issues of contact a view that read as follows:

“…I can only recommend that orders be made for contact for a period of, say, four hours quickly increasing to the maximum times between breast feeds on one day of each weekend, together with a period of as long as possible between Father's work and [X's] bed on at least one night each week.  This might then progress to the weekend time on both days with return overnight for a few weekends.  If that is successful, overnight might be introduced on alternate weekends with one weeknight contact remaining each week.”

1. Mr F envisaged one midweek period of contact in the evening and for a while contact each weekend on Saturday and Sunday, that developing after the child had been weaned, and then progressing fairly quickly to alternate weekend contact.

1. The mother's perspective was that midweek contact should cease once overnight contact commenced, that the overnight contact should be done in stages and that ultimately there should be alternate weekend contact, that being from about December 2003.  Before then it should remain each weekend but without midweek contact.  So the mother would have the child with the father for one or part of two days of each week, part of four days of each fortnight; that is, Friday night and then Saturday on each weekend. 

1. The father wished to continue both midweek access and weekend access, particularly seeking to have the child each weekend. 

1. The child representative put forward a proposal that was each Saturday until July 2003 plus Wednesdays 5.15 pm to 7 pm and then changing instead of each Saturday to be alternate weekends 5.30 pm Friday to 6.00 pm Saturday for a year and then increasing until 6 pm Sunday after that. 

1. There was a dispute over what time the midweek access should take place.  The mother wanted it to conclude so that the child would be in bed by 7.30.  The father wished to retain the child until 7.15 and return the child to the maternal grandmother's home, which is about 20 minutes away from the mother's home. 

1. There were existing orders that had been made in July 2001 that provided that all Wednesday contact changeovers will be from the maternal grandparents' home at Suburb M, with the father to drop off and the father or Ms G to collect the child at the commencement of contact.  The mother sought to have that order varied only to the extent of having the child dropped off at her home in Suburb P rather than at her mother's home.

1. For reasons that are not abundantly clear, the Magistrate chose to order that all collection and drop-off be at the mother's home at Suburb P.  This was not sought, nor does it seem to be in the interests of the child, given that the child is normally cared for by the grandmother in Suburb M during the week while the mother is at work and the mother then picks the child up from her mother's place after work.  The father works in Suburb M.  It makes no particular sense for the father to have to leave home and go to Suburb P where the child normally is not to collect the child when he can leave work and collect the child at least 20 minutes earlier at the grandmother's home, it being much more convenient to all parties for the child to be at the grandmother's home, at least for the collection. 

1. In the course of discussion in submissions it was ultimately conceded on behalf of the mother and the child representative that the order insofar as it made provision for the collection of the child midweek to be from the mother's home, that order ought be amended and that the collection be from the grandmother's home. 

1. The father asserted strongly that a return of the child at 7 pm encroached on the time that he would spend with the child and the useful time he could spend with the child.  This was a matter that was before the Magistrate.  It was a matter to which she specifically turned her mind.  She said, paragraph 52:

“Order 3(a) continues the current regime of contact, save that it concludes at 7.00 and not 7.15 because I accept the evidence of the mother that she has a routine in place for the child and that a 7 o'clock return fits more readily into that routine. I am mindful that [X] is still a very young child.”

1. These appeals were all against exercises of discretion.  In order to succeed in an appeal against an exercise of discretion the appellant must demonstrate error or that the result was plainly untenable.  It is not sufficient for me to say that I would come to some different conclusion on this issue.  Different minds come to different views about whether it was appropriate that the child be home at 7.00 or at 7.15.  I cannot say on anything that has been put to me that there has been any error in the exercise of the Magistrate's discretion in giving consideration, as she did, to what she perceived was in the best interests of this child.  Insofar as the appeal seeks to vary the orders for the return of the child at 7 pm midweek until the child attains three or four years of age, the appeal will be dismissed.

1. Perhaps of more import to the father was the order that his weekend contact reduce to alternate weekend contact once the overnight contact commenced.  The orders that were ultimately made coincide with those of the child representative.  They do not meet the demands of the mother, nor the demands of the father.  The orders that were made, in my view, classically fit within an exercise of discretion.  There are adequate reasons given.  The Magistrate says:

“It is alternate weekend because the mother is also working and requires time herself to spend with the child which benefits the child.”

1. The order makes provision for contact to continue each week in addition so the father does have weekly contact with his son and also an overnight period. 

1. The father urges me to conclude that the best interests of the child require more contact than the Magistrate has allowed for.  Even if I shared his view, that is not the test that has to be applied at appellate level.  The test is whether there has been an error in the exercise of discretion.  I have been unable to perceive any error in the exercise of discretion by the Magistrate on this issue and the appeal must fail. 

Costs

1. The final issue concerned the payment of some reserved costs orders.  The Magistrate ordered the father to pay the sum of $890.38 for the mother's costs involved in respect of two days, $715 for one day and the balance for the other.  The circumstances in which the costs orders were made relate especially in relation to the larger one to the costs that had to be met by the mother when a claim by the father seeking DNA testing in respect of the child was ultimately abandoned after a day in court.  It seems that the father took the view that proceeding on with what was a very tenuous claim, which he describes I think in his submissions that he was 90 per cent certain he was the father, but there was a lingering doubt and he wanted to have it resolved.  He submitted to me that when he learned that the continuance of the DNA testing would inhibit his claims for contact until it was resolved he took the view that it was best to abandon the DNA test.

1. Be that as it may, the day was wasted as a result of the presence of the application.  The Magistrate thought that was an appropriate basis upon which costs should follow the event.  She took into account the financial circumstances of the parties and, in my view, she has exercised a discretion which she has under s 117 of the Act.  The manner in which she has exercised the discretion does not allow me to interfere at an appellate level unless there has been error demonstrated.  To my mind, no error has been demonstrated.  Similarly in respect of the other smaller amount of costs that were ordered relating to the mother's out-of-pocket sum in respect of another occasion in which reserved costs had been incurred, no error has been demonstrated.

1. The formal orders are:

1.      That the appeal is allowed in part.

2.      That Order 3 of the orders made by Hartnett FM on 23 August 2002 be varied by adding after “residence of the mother” appearing after 3(b) the words

"save that on Wednesdays the child is to be collected from the maternal grandmother's home"

and by substituting for the words

"the father to provide all necessary transportation to and from the residence of the mother"

where appearing in 3(c)(ii) and 3(d)(ii)

"the father to collect the child from the maternal grandmother's home at the commencement of contact and deliver him to the mother's home at the conclusion thereof, unless otherwise agreed". 

3.      The appeal is otherwise dismissed.

1. I do not propose to make an order for costs in respect of the appeal in the circumstances.

I certify that the 40 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.



Associate