Jasper and Corrigan

[2017] FCCA 1466

FEDERAL CIRCUIT COURT OF AUSTRALIA

JASPER & CORRIGAN [2017] FCCA 1466

Catchwords:
FAMILY LAW – Child support proceedings – whether special circumstances established for the purposes of s.116 Child Support (Assessment) Act 1989 – special circumstances established.

Legislation:

Child Support (Assessment) Act 1989, ss.116, 123, 124

Family Law Act 1975, ss.90RD, 117

Cases cited:

Savery & Savery (1990) 13 FamLR 812

Applicant: MS JASPER

Respondent: MR CORRIGAN

File Number: WOC 732 of 2015

Judgment of: Judge Altobelli

Hearing date: 22 June 2017

Date of Last Submission: 22 June 2017

Delivered at: Wollongong

Delivered on: 22 June 2017

REPRESENTATION

The Applicant was self-represented

Counsel for the Respondent: Ms Bridger

Solicitors for the Respondent: Williamson Isabella Lawyers

ORDERS

1. The Court declares that pursuant to s.116(1) of the Child Support (Assessment) Act 1989 (Cth) there are special circumstances that justify the Applicant in bringing her application under the said Act.

IT IS NOTED that publication of this judgment under the pseudonym Jasper & Corrigan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 732 of 2015

MS JASPER

Applicant

And

MR CORRIGAN

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The Applicant is 33 years old. The Respondent is 77 years old. They have a 3 year old daughter. The Applicant contends that they were in a de-facto relationship the Respondent only concedes that there was a sexual relationship between October 2012 and January 2014.

2. The issue that has arisen as a preliminary matter in the present case is whether the Applicant has satisfied the Court as to the matters set out in s.116(1) of the Child Support (Assessment) Act 1989 and, specifically, whether there is enough evidence before the Court to indicate that there are special circumstances that would warrant her bringing the s.117 departure application part of her claim in the present proceedings.

3. By way of background, the application that the Applicant makes has three parts to it:

   a)there is the s.90RD Family Law Act 1975 application - the issue being whether there was a de facto relationship between the Applicant and the Respondent;

   b)there is the s.117 departure application; and

   c)there is an application for lump sum child support variously under ss.123 and 124 and following of the Child Support (Assessment) Act 1989. 

4. It is common ground that there is presently pending before the Administrative Appeals Tribunal an application by the Applicant to review an order of the Child Support Registrar which declined to further amend the current child support assessment. The focus for present purposes is on whether there are special circumstances. 

5. As Counsel for the Respondent quite correctly pointed out, Kay J, as he then was, in Savery & Savery (1990) 13 FamLR 812, many years ago, explained that special circumstances means:

   …facts peculiar to the particular case which set it apart from other cases.

6. A number of things need to be underscored. The application that is made is in the nature of a summary dismissal application. The assertion being that because s.116 has not been prima facie established, the s.117 claim should not be allowed to proceed. The issue for the Court, of course, is that whilst the Applicant makes numerous assertions in her evidence, she has not been cross-examined and, of course, the Respondent has not been cross-examined. It is possible, after the conclusion of the evidence in this case, that the Court might form a different conclusion to the one that it presently forms.

7. The approach that the Court adopts is to look at the material advanced on behalf of the Applicant at its highest and to see whether it establishes that there are special circumstances in this case.  The Applicant is representing herself.  That is not a criticism.  The material that she has put before the Court is quite voluminous.  The issues are actually quite complex.  The Court must do the best it can to assist the Applicant by providing information whilst at the same time being fair and manifestly fair to the Respondent.  One of the issues or challenges that faces a trial judge in this particular situation is, of course, that there might be material before the Court advanced by the Applicant to which she has not made reference in submissions but which the Court cannot blithely ignore. 

8. In any event, doing the best that the Court can, the Applicant has alluded to a number of matters that she contends, in effect, are facts peculiar to this particular case which set it apart from other cases.  For example, and these are not in the order in which they were submitted, nor are they in any order of priority, she referred to the fact that Counsel for the Respondent had herself conceded that her client was of advanced age.  It is a somewhat unusual case wherein a man of the Respondent’s advanced age would be engaged in a child support contest involving a very young child.  Some would say that is a fact peculiar to this particular case and somewhat unusual in the objective scheme of things. 

9. The history of the matter, the Applicant contends through her material and in her submissions, also constitutes special circumstances.  The Applicant asserts in her material – and this is untested - that at first the Respondent denied the paternity of the child in question.

10. After paternity was established, the Applicant asserts it was only as a result of legal proceedings initiated by her that the appropriate declaration was made such that child support could be assessed. 

11. The Applicant asserts that during the course of the paternity and subsequent child support procedures that the Respondent evicted her from the premises in which she lived.  She contends, impliedly, that these too are facts that peculiar to this particular case and which warrant a finding of special circumstances. 

12. The Applicant then points to what is known about the Respondent’s financial affairs.  What the Court knows about the Respondent’s financial affairs comes almost exclusively at the initiation of the Applicant, and that is because the Respondent has declined, so far, to the best of the Court’s knowledge, and despite various orders to that effect, to file a statement of his financial circumstances.  In any event, doing the best the Court can, and based on the material that the Applicant has provided to the Court, it would seem - and this is a preliminary impression only, in the absence of any material filed by the Respondent - that during the course of the child support assessment and during the course of the proceedings, the Respondent appears to have been disposing of various properties that were once held in his name.  The Applicant impliedly contends that this, too, is a special circumstance, namely, a fact peculiar to her particular case against the Respondent. 

13. The issue of the Respondent consistently failing to disclose his financial circumstances is an issue that is also alluded to in her case.  For example, Exhibit ‘R2’, documents tendered on his behalf by the Respondent’s Counsel, includes the details of an objection decision.  One of the statements made by the learned officer making this decision is as follows:

    Mr Corrigan has not provided any income and expense information. 

    This is consistent with the Applicant’s contention to the effect that, and in substance, the Respondent has not been forthright or even in the least cooperative about disclosing his financial circumstances.  Indeed, the Applicant refers to an earlier decision that was made in a child support assessment decision, being a decision that was made much earlier in these proceedings and, in which, the learned child support officer makes a similar observation. 

14. The question for the Court is, if these matters are accepted at face value, do these matters cumulatively or individually constitute special circumstances for the purposes of s.116 of the Child Support (Assessment) Act 1989? If the Court concludes that it does establish special circumstances, then it means that the Applicant can continue with her claim under s.117 and, subject to success in that regard under sections 123 and 124 of the Child Support (Assessment) Act 1989. 

15. It must also mean, of course, that she cannot run proceedings in this Court and in the Administrative Appeals Tribunal in relation to the same issue. There can be no doubt, this Court would have thought, if it adjudicates on the s.117 application in this case, that the Applicant would, at the very least, be estopped from relying on the same evidence and the same submissions in proceedings in the Administrative Appeals Tribunal. It is important to recite this because one of the submissions made on behalf the Respondent by his Counsel is that there is an underlying policy consideration of avoiding duplication in proceedings and that is reflected in a statutory scheme that favours proceedings going from the Registrar to the AAT and only then to this Court or, indeed, to other courts.

16. Section 116 is the only explicit provision that deals with the Court’s jurisdiction and it focuses on special circumstances. The Court concludes, based on the material that is before it, that the Applicant should, at least for the time being, have the benefit of the doubt in relation to special circumstances. Thus, the Court is satisfied that special circumstances exist for the purposes of s.116 of the Child Support (Assessment) Act1989 and at least in that regard, the Applicant’s claim under s.117 may proceed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Altobelli

Date:  29 June 2017