Kettle & Baker & Green - [2009] FamCAFC 113

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER & GREEN

[2009] FamCAFC 113

FAMILY LAW - APPEAL – CHILD SUPPORT – where the trial Judge had before him applications by the two mothers of the father’s children for departure from Child Support Agency assessments against the father and applications by the mothers for the capitalisation of periodic child support for the purpose of such capitalised sums being held in trust for security for the future payment of periodic child support – where the trial Judge made departure orders for periodic child support and orders for the payment of lump sum child support in the event that the father defaulted in periodic child support payments but where the trial Judge did not order that the lump sums be held as security for future payments of periodic child support – where another Judge appointed a trustee for sale of the father’s farming property to satisfy his child support liabilities and other costs orders – leave to appeal granted – appeals allowed – orders of both Judges set aside – the mothers’ child support applications remitted for re-hearing.

FAMILY LAW - APPEAL – PARENTING – where the trial Judge ordered that the children of both mothers and the father should live with their mother and spend defined time with the father – where the mothers had made an application that the father’s appeals be summarily dismissed “for want of prosecution” or because the notices of appeal did not “disclose proper grounds of appeal” – finding that the husband’s parenting appeals did not disclose proper grounds of appeal – parenting appeals dismissed without further hearing pursuant to s 96AA of the Family Law Act 1975 (Cth).

Child Support (Assessment) Act 1989 (Cth) Part 7, Divisions 4 and 5, s 141
Child Support (Registration & Collection) Act 1988 (Cth) s 30, s 113A
Family Law Act 1975 (Cth) s 96AA
Family Law Rules 2004 (Cth) Rules 17.02 and 22.58 (now Rule 22.45)
Federal Proceedings (Costs) Act 1981 (Cth)

Darvall v Marmindie Holdings (2001) FLC 98-014; 27 Fam LR 267; [2000] FamCA 1614
Dwyer & McGuire (1993) FLC 92-420
Lightfoot & Hampson (1996) FLC 92-663
R & R (No 1) [2002] FMCAfam 153
Van Reesema & Giameos (1979) 27 ALR 525
Whelan & Rizzo (1995) FLC 92-567

APPELLANT:

Mr Kettle

RESPONDENT:

Ms Baker

Ms Green

FILE NUMBER:

(P)BRF

2360
1456

2002

2001

APPEAL NUMBER:

NA
NA
NA
NA
NA

2
3
19
20
69

of
of
of
of
of

2007
2007
2007
2007
2007

DATE DELIVERED:

7 July 2009

PLACE DELIVERED:

Canberra

PLACE HEARD:

Brisbane

JUDGMENT OF:

Finn, May and Murphy JJ

HEARING DATE:	3 March 2008
DATE OF LAST SUBMISSIONS:	30 June 2008

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

Orders made on 24 November 2006; 31 January 2007; 7 September 2007

LOWER COURT MNC:

[2006] FamCA 1295; [2006] FamCA 1296; [2007] FamCA 1653

REPRESENTATION

COUNSEL FOR THE APPELLANT:

The appellant appeared in person

COUNSEL FOR THE FIRST AND SECOND RESPONDENTS:

Mr Hamwood

SOLICITOR FOR THE FIRST AND SECOND RESPONDENTS:

Burchill & Horsey

COUNSEL FOR THE INDEPENDENT CHILREN’S LAWYER:

Mr McGregor

SOLICITOR FOR THE INDEPENDENT CHILREN’S LAWYER:

Carter Naughton Rice

Orders

That leave to appeal Orders 14 and 15 of the orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 2360 of 2002 be granted; that the appeal (NA 2 of 2007) be allowed; and that the orders be set aside.
That the appeal (NA 2 of 2007) against all other orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 2360 of 2002 be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth).
That leave to appeal Orders 9 and 10 of the orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 1456 of 2001 be granted; that the appeal (NA 3 of 2007) be allowed; and that the orders be set aside.
That the appeal (NA 3 of 2007) against all other orders of the Honourable Justice Bell made on 24 November 2006 in proceedings (P)BRF 1456 of 2001 be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth).
That leave to appeal Orders 14, 15 and 16 of the orders of the Honourable Justice Bell as amended on 31 January 2007 in proceedings (P)BRF 2360 of 2002 be granted; that the appeal (NA 19 of 2007) be allowed; and that the orders be set aside.
That leave to appeal Orders 9, 10 and 11 of the orders of the Honourable Justice Bell as amended on 31 January 2007 in proceedings (P)BRF 1456 of 2001 be granted; that the appeal (NA 20 of 2007) be allowed; and that the orders be set aside.
That leave to appeal the orders of the Honourable Justice O’Reilly made on 7 September 2007 in proceedings (P)BRF 2360 of 2002 and (P)BRF 1456 of 2001 be granted; that the appeal (NA 69 of 2007) be allowed; and that the orders be set aside.
That the application filed 14 October 2004 for child support orders in proceedings (P)BRF 2360 of 2002 be remitted for re-hearing before a Judge other than the Honourable Justice Bell.
That the application filed 14 October 2004 for child support orders in proceedings (P)BRF 1456 of 2001 be remitted for re-hearing before a Judge other than the Honourable Justice Bell.
(a)      That each party be at liberty to file and serve brief written submissions in support of an application for costs or costs certificates in relation to the appeals within 28 days of the date hereof.
(b)      That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c)      That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: EA 2, 3, 19, 20 and 69 of 2007
File Number: (P) BRF 2360 of 2002; (P) BRF 1456 of 2001

MR KETTLE

Appellant

And

MS BAKER & MS GREEN

Respondents

REASONS FOR JUDGMENT

Introduction

These reasons for judgment relate to the following five appeals by Mr Kettle (to whom it is convenient to refer as “the father”):
(1)an appeal (NA 2/07) against parenting and child support orders made by Bell J on 24 November 2006 in proceedings between the father and Ms Baker;
(2)an appeal (NA 3/07) against parenting and child support orders made by Bell J on 24 November 2006 in proceedings between the father and Ms Green;
(3)an appeal (NA 19/07) against orders made by Bell J on 31 January 2007 pursuant to Rule 17.02 of the Family Law Rules 2004 (“the slip rule”) amending the child support orders mentioned in sub-paragraph (1) above;
(4)an appeal (NA 20/07) against orders made by Bell J on 31 January 2007 pursuant to “the slip rule” amending the child support orders mentioned in sub-paragraph (2) above; and
(5)an appeal (EA 69/07) against orders made by O’Reilly J on 7 September 2007 appointing a trustee for sale of property owned by the father for the purpose of satisfying his child support liabilities and other liabilities arising under various costs orders made against him.
These reasons for judgment also relate to the following applications which were made as a result of the father’s failure to file appeal books for the five above-mentioned appeals by the date set for the hearing of those appeals:
(1)an application (filed 27 February 2008) by the father seeking the adjournment of the hearing of the appeals (listed for hearing on 3 March 2008); and
(2)an application (filed 27 February 2008) on behalf of the respondents to the above-mentioned appeals, being Ms Baker and Ms Green, seeking that the five appeals be dismissed for want of prosecution. (This application was supported by the Independent Children’s Lawyer who represented the children of the father’s relationships with Ms Green and Ms Baker.)

Background to the appeals

At some time prior to July 1994 when their first child, a daughter, M, was born, the father and Ms Green began a relationship. They apparently only lived together for a period of about a year (August 1998 to August 1999). Their second child, a daughter, A, was born in December 1999.
After the father and Ms Green separated, their two children remained living with their mother, but spent time with the father.
Following his separation from Ms Green, the father began a relationship with Ms Baker, who gave birth to a son, B, by the father in August 2000. For a time Ms Baker lived part of the time on the father’s farm, while maintaining her own flat in a nearby town.
The father and Ms Baker separated in early 2001, with the child, B, staying with his mother, apart from a two week period in October 2005 when he stayed with the father.
On 14 October 2004 both Ms Green and Ms Baker filed applications stated to be under ss 116, 117 and 118 of the Child Support Assessment Act 1989 seeking by way of “departure order” lump sum child support. Both mothers alleged in their affidavits (also filed 14 October 2004) that the father was in arrears with his child support obligations (apparently as assessed by the Child Support Agency).
At some time prior to 13 November 2006, Ms Green also filed an application for parenting orders apparently seeking that her two daughters by the father should live with her. The father apparently responded with an application seeking a shared residence arrangement for the girls.
Also at some time prior to 13 November 2006, Ms Baker filed an application for parenting orders seeking that her child, B, live with her, and also that she and the child be permitted to “relocate” from the town in the rural area where they had been living and which is near the father’s farm. The father opposed Ms Baker’s application and sought that there be an order that B live with him.
The child support departure applications of both mothers, and also their applications for parenting orders, were heard by Bell J in the Family Court on 13-17 November 2006. On 24 November 2006 his Honour delivered an oral judgment and made orders.
In relation to the parenting proceedings between the father and Ms Green, his Honour’s orders provided that their two children should live with their mother and spend defined time (in default of agreement) with the father, being essentially alternate weekends and half school holidays.
In relation to the child support proceedings between the father and Ms Green, his Honour’s orders (in the original engrossment bearing the date of 24 November 2006) provided:
…
9.If the Father fails to comply with the orders of the child support agency and fall into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant’s Solicitors, …, the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.
10.Enforcement of Order (10) [sic, semble Order (9)] is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…
In relation to the parenting proceedings between the father and Ms Baker, his Honour’s orders provided that their son, B, should live with his mother and spend defined time (in default of agreement) with the father, being essentially alternate weekends and half school holidays. Ms Baker’s “application for relocation” (as it was described in his Honour’s orders) was dismissed.
In relation to the child support proceedings between the father and Ms Baker, his Honour’s orders (again in the original engrossment of 24 November 2006) provided:
…
14.If the Father fails to comply with the orders of the child support agency and fall into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant’s Solicitors, …, the amount of $113,350 for the child [B].
15.Enforcement of Order (14) is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…
On 22 December 2006 the father filed notices of appeal against his Honour’s parenting and child support orders in the proceedings involving Ms Baker (Appeal NA 2/07) and in the proceedings involving Ms Green (Appeal NA 3/07). These are two of the appeals now before us (albeit having been re-instated as will be later explained).
On 31 January 2007 Bell J re-issued in amended form his orders of 24 November 2006 in the proceedings between the father and Ms Green and also in the proceedings between the father and Ms Baker. We were informed by counsel for Ms Green and Ms Baker that the amended orders were issued following a letter to his Honour’s Associate from the solicitor for Ms Green and Ms Baker; that it could not be confirmed whether or not that letter was copied to the father; and that there was no further hearing or communication before the amended orders were issued to the parties.
The amended orders in relation to the proceedings between the father and Ms Green contained the following notation:
Pursuant to Rule 17.02 of the Family Law Rules 2004 this Order has been amended:
(1)by the insertion of Order 9 and the renumbering of Orders 9 to 13 as Orders 10 to 14;
(2)by the deletion of the words “If the Father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months…” and the insertion of the words “If the father fails to comply with Order 9 of these Orders and falls into arrears for a period of three months…” in paragraph 10.
Thus those amended orders were as follows:
…
9.The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $330.00 per week.
10.If the Father fails to comply with Order 9 of these Orders and falls into arrears for a period of three (3) months his property at [G] in the State of Queensland is to be sold and he shall forthwith pay to the Applicant’s Solicitors … the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.
11.Enforcement of Order (10) is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…
The amended orders in relation to the proceedings between the father and Ms Baker contained the following notation:
Pursuant to Rule 17.02 of the Family Law Rules 2004 this Order has been amended:
(1)by the insertion of Order 14 and the renumbering of Orders 14 to 18 as Orders 15 to 19;
(2)by the deletion of the words “If the Father fails to comply with the orders of the child support agency and falls into arrears for a period of three (3) months…” and the insertion of the words “If the father fails to comply with Order 14 of these Orders and falls into arrears for a period of three months…” in paragraph 15.
Thus those amended orders were as follows:
…
14.The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $215.00 per week.
15.If the father fails to comply with Order 14 of these Orders and falls into arrears for a period of three (3) months his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant’s Solicitors … the amount of $113,350 for the child [B].
16.Enforcement of Order (14) [sic, semble Order (15)] is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…
The references in the notations to the orders of 31 January 2007 to Rule 17.02 indicate that the amendments to the orders of 24 November 2006 were made pursuant to the slip rule.
On 20 February 2007 the father filed notices of appeal against the amended orders made in the proceedings involving Ms Green (NA 20/07) and in the proceedings involving Ms Baker (NA 19/07). These two appeals are also now before us (again having been re-instated).
On 17 May 2007 Ms Green filed an application (together with a supporting affidavit) in the Family Court seeking that she be appointed a trustee (under Chapter 20 of the Family Court Rules 2004) for the sale of the father’s farming property and that out of the proceeds of sale (after payment of the costs of sale and other incidental costs): the sum of $125,140 be held in trust for the discharge of the father’s child support liabilities; costs liabilities of the father pursuant to orders of 30 August 2005 and 5 July 2006 be discharged; and the balance paid to the father.
On 13 June 2007 Ms Green filed an amended application (together with supporting affidavit) seeking that the trustee to be appointed for the sale of the father’s farming property be a solicitor (rather than Ms Green herself), and that out of the net proceeds of sale of the property the father’s liabilities under a costs order of 4 April 2007 and any further costs liabilities incurred in connection with the proceedings also be discharged (in addition to the liabilities referred to in her original application filed 17 May 2007).
A similar application and similar amended application had been filed by Ms Baker (with supporting affidavits) on 17 May 2007 and 13 June 2007, respectively, seeking the appointment of a trustee (ultimately the same solicitor as sought by Ms Green) for the sale of the father’s farming property. The amount sought to be held on account of the father’s child support liability to Ms Baker was $113,350 (with the other liabilities to be discharged being as in Ms Green’s original application and amended application).
These applications for the appointment of a trustee for sale of the father’s property were ultimately heard by O’Reilly J on 5 September 2007 - Bell J having disqualified himself from further hearing the father’s proceedings on 29 May 2007.
A further affidavit in support of the applications for the appointment of a trustee for sale had been filed by Ms E, the solicitor for both Ms Green and Ms Baker, on 30 August 2007 apparently for purposes of the hearing on 5 September 2007.
On 7 September 2007 O’Reilly J published reasons for judgment and made orders appointing a solicitor, Mr S, as trustee for sale of the father’s farming property for the purpose of paying to the solicitors for Ms Green and Ms Baker, the amounts, respectively, of $125,140 and $113,350 (as provided in Bell J’s orders of 24 November 2006 and 31 January 2007) and also paying various costs orders referred to in Order 7 of her Honour’s orders of 7 September 2007.
On 5 October 2007 the father filed a notice of appeal (NA 69/07) against O’Reilly J’s orders of 7 September 2007. This appeal is also one of the five appeals now before us.

Background to the applications for an adjournment of the hearing of the appeals and for dismissal of the appeals for want of prosecution

On 21 March 2007 the father’s appeals against the orders of 24 November 2006 (NA 2/07 and NA 3/07) were deemed abandoned due to the father’s failure to file the then required Pre-Argument Statement within the prescribed time. Similarly the father’s appeals against the (amended) orders of 31 January 2007 (NA 19/07 and NA 20/07) were deemed abandoned on 9 May 2007 due to the father’s failure to file the then required Pre-Argument Statement.
On 23 October 2007 the father filed an application seeking the re-instatement of all four abandoned appeals. That application was heard and granted by May J on 26 November 2007.
Her Honour also ordered on that day that all the father’s outstanding appeals be listed for hearing by the Full Court in the week commencing 3 March 2008; that the father prepare his appeal books in accordance with an index to be settled by the Appeal Registrar; and that he file the books by 25 January 2008.

On 6 December 2007 the Full Court (Bryant CJ, Finn and May JJ) ordered that the court should in the first instance obtain and provide to all parties copies of the transcript of the proceedings before Bell J on 13-16 November 2006 (with the question of ultimate liability for the costs of the transcript being reserved). The copy of the transcript, with which we were provided, bears a filing date of 31 January 2008. As will shortly be explained, the father has acknowledged that he received the transcript on 1 February 2008.
On 3 January 2008 the Appeal Registrar made an order providing for the index of the documents to be included in the appeal books. The father applied to review the Registrar’s order. That review was heard and dismissed by May J on 8 February 2008. However her Honour extended the time for the father to file and serve the appeal books until 15 February 2008, and she also permitted him to file and serve a book of “contentious” documents (being documents which were not before Bell J or O’Reilly J).
In her reasons for judgment May J recorded the difficulties which the Appeal Registrar had encountered in endeavouring to obtain the father’s co-operation and consent in relation to the settling of the appeal book index. Her Honour also recorded (at paragraph 5 of her reasons) that the father had said that he had received the transcript of the proceedings before Bell J on 1 February 2008.
The appeal books were not filed by the extended date of 15 February 2008. Nevertheless, on 26 February 2008 the Appeal Registrar advised the parties that the appeals would remain listed for hearing on 3 March 2008.
On 27 February 2008 the father filed an application (supported by an affidavit) seeking that the hearing of his “five pending appeals be adjourned to a date to be fixed”.
In his supporting affidavit the father referred (at paragraph 4) to “the arbitrary decision to determine the contents of the Appeal Books [which] was done without any opportunity or fair opportunity for me to be heard; to have any input into that decision or to make submissions in that regard”.
More particularly in relation to the settling of the appeal book index, the father referred to various communications between himself and the Appeal Registrar. He also relied on the fact that the period for the filing of an appeal against May J’s orders of 8 February 2008 had not yet expired. The father also stated that he had only on the day of swearing his affidavit (27 February 2008) received O’Reilly J’s reasons for her orders of 7 September 2007 (being the orders to which one of the father’s appeals is directed). He also stated that he had never received reasons for Bell J’s orders of 31 January 2007.
Overall, the father’s affidavit can be read as his seeking a further extension of time to prepare for the hearing of his appeals, with some reliance being placed on his self-represented status.
Also on 27 February 2008, an application was filed on behalf of the respondents to the appeals, Ms Green and Ms Baker, seeking that the father’s five appeals be “dismissed for want of prosecution”. That application was supported by an affidavit from the respondents’ solicitor Ms E.
In her affidavit Ms E set out the long history of proceedings between the father and the respondents (commencing some two years before the hearing before Bell J in November 2006). Ms E recorded at length the extensive procedural history of the matter since the proceedings before Bell J, with particular references to the various extensions of time which the father had been granted in the immediately preceding few months, and to his failure to comply with such extensions, as well as to his failure to meet his child support obligations and his liabilities under various costs orders made against him.
These applications by the appellant father for an adjournment and by the respondent mothers for what would in effect be a summary dismissal of all appeals were listed before us for hearing on the date on which the appeals had been listed for hearing (3 March 2008).

The hearing on 3 March 2008

The first issue raised by the father (who appeared without legal representation) at the hearing before us on 3 March 2008 was the contents of the appeal book. We understood from our discussions with the father that the material which he wished to include in the appeal book related to what appeared to be his principal complaint, being that he had been denied procedural fairness, and that that material largely related to complaints which he had made to the Court and to various other persons and bodies about not receiving, or receiving very late, information or documents regarding his proceedings.
We endeavoured to explain to the father that we could not deal with complaints concerning administrative matters, but only with the question of whether Bell J or O’Reilly J had erred in a way which would permit an appeal court to interfere with their discretionary decisions. We also endeavoured to explain to the father that we had the reasons for judgment of both Judges in relation to the orders which were the subject of his appeals (at least where reasons existed) and also the transcript of the trial before Bell J in November 2006; that we could, if necessary, obtain the documents which were before both Judges; and that on the basis of such material we considered we could, and should, determine his appeals without the need for any further adjournments which, in our view, would be in no party’s interest.
The primary position of counsel for the respondent mothers and of counsel for the Independent Children’s Lawyer continued to be that we should dismiss the appeals without hearing because of the father’s failure to prosecute them in accordance with the relevant Rules of Court and with the particular procedural orders made in this case.
It was clear from the written submissions of counsel for the respondents filed in anticipation of the hearing on 3 March 2008, that the application for what would be a summary dismissal was made pursuant to the provisions of Rule 22.58 of the Family Law Rules 2004, which at that time provided:
(1)This rule applies if:
(a)rule 22.56 does not apply; and
(b)a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Regulations;
(ii)complied with an order; or
(iii)shown reasonable diligence in proceeding with an appeal.
(2)A court having jurisdiction in the appeal may:
(a)if the defaulting party is the appellant:
(i)dismiss the appeal; or
(ii)fix a time by which a requirement is to be met and order that the appeal will be dismissed if the order imposing the requirement is not complied with; or
(b)if the defaulting party is the respondent:
(i)fix a time by which a requirement is to be met and order that the appeal will proceed if the order imposing the requirement is not complied with; or
(ii)proceed to hear the appeal.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order.
Counsel for the respondents also relied in support of the application for summary dismissal on the decision of the Full Court of the Federal Court in Van Reesema & Giameos (1979) 27 ALR 525. However, before us counsel was prepared to concede that before we could summarily dismiss the appeals, we would, having regard to Van Reesema & Giameos (supra), have to satisfy ourselves that at least no error appeared on the face of the judgments appealed.
In this context we raised with counsel concerns which we had as to whether on the face of his reasons for judgment of 24 November 2006 Bell J had applied the proper approach to the determination of the child support departure orders, and furthermore whether there was jurisdiction to make the orders which his Honour did on the application of the mothers given that his Honour’s orders might be said to amount to enforcement orders. We also raised our concerns about an apparent lack of notice to the father regarding the slip rule amendments made on 31 January 2007 to the orders of 24 November 2006.
It also emerged in discussion during the hearing on 3 March 2008 that s 96AA of the Family Law Act 1975 (Cth) (“the Act”) could provide a foundation for the respondents’ application for dismissal of the appeals on a summary basis. Section 96AA provides:
If it appears to a court hearing an appeal under this Part that the notice of the appeal does not disclose proper grounds of appeal (whether generally, or in relation to a particular ground of appeal), the court may order that the proceedings on the appeal be stayed or dismissed (either generally or in relation to that ground).
However, as we explained at the hearing on 3 March 2008, before exercising the power in s 96AA we would need, given the father’s self represented status, to satisfy ourselves as to what his grounds of appeal actually were, and whether or not they were competent grounds of appeal.
Ultimately on 3 March 2008 we determined that we would not summarily dismiss the father’s appeals against the orders relating to child support. But rather having explained to counsel for the respondents our concerns regarding his Honour’s approach to the child support matters and to the making of the slip rule orders, we would provide counsel with the opportunity to make further written submissions directed to the determination of the appeal, and then provide the father with an opportunity to respond in writing to counsel’s written submissions. Our directions for such further submissions also provided that all parties should, prior to preparing such submissions, receive copies of the transcript of the hearing on 3 March 2008 so far as it related to child support matters.
As to the father’s appeals against the parenting orders, we determined that we would reserve our decision as to whether those appeals should be dismissed either under s 96AA for want of proper grounds, or under Rule 22.58 (now Rule 22.45) for want of prosecution.
It will thus be seen that we were not prepared to adjourn the hearing of the father’s appeals against the child support orders, save to the extent that the provision for further written submissions amounted to an adjournment.
So far as the appeals against the parenting orders were concerned, we were of the view that given the history of delay in the prosecution of the appeals, we should first determine the respondents’ summary dismissal application. Should that application be dismissed, the appeals would have to be heard, and thus the father would, in effect, gain the adjournment which he sought.

Submissions filed subsequent to 3 March 2008

On 2 April 2008 submissions were filed by counsel for the respondents addressing the child support and slip rule matters which we had raised at the hearing on 3 March 2008.
The father did not file responding submissions within the time required according to the directions which we had made on 3 March 2008. Nevertheless, we were prepared for the time for the father to file such submissions to be extended until 27 June 2008. The father’s submissions were not filed until 30 June 2008, but we have been prepared to accept them given the nature of this case and the issues which it raises.
We will first consider issues relating to the child support orders, before considering the application for the summary dismissal of the appeals against the parenting orders.

The child support orders made on 24 November 2006

Included in the father’s notices of appeal against Bell J’s orders made on 24 November 2006 was the following ground of appeal, identical in both notices (albeit numbered Ground 9 in the appeal against the orders in favour of Ms Green and Ground 13 in the orders in favour of Ms Baker), which is expressly directed to the child support assessments and “sanctions”:
Child Support was unreasonably assessed and improper sanctions applied, especially as the mother’s income is considerably higher than the father’s income.
As earlier mentioned, we had at the hearing on 3 March 2008 expressed to counsel for the respondent mothers our concerns based on the contents of his Honour’s reasons for judgment of 24 November 2006, which related to his Honour’s approach to, and determination of, the child support applications, and also to the issue of whether or not there was jurisdiction to make certain of the orders.

The orders originally sought

The orders sought in Ms Green’s application filed 14 October 2004 were:
1.That the child support assessment be departed from and that in lieu the father pay child support of $100.00 per child per week for the two children of the relationship, namely [M] born [in 1994] and [A] born [in 1999] until they turn 18 years of age.
2.That the father’s liability for child support pursuant to clause 1 be capitalised into a lump [sic] of $119,600.00.
3.That the father be ordered to pay such sum within 28 days of the date of these Orders.
It was later stated in that application that it was brought under ss 116, 117 and 118 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”).
The orders sought in Ms Baker’s application filed 14 October 2006 were:
1.That the child support assessment be departed from and that in lieu the father pay child support of $100.00 per week for the child of the relationship, namely [B] born [in 2000] until he turns 18 years of age.
2.That the father’s liability for child support pursuant to clause 1 be capitalised into a lump [sic] of $68,800.00 to be placed into trust as security for payment.
3.That the father be ordered to pay such sum within 28 days of the date of these Orders.
It was also stated in Ms Baker’s application that it was brought under ss 116, 117 and 118 of the Assessment Act.

Relevant statutory provisions

Sections 116, 117 and 118 are to be found in Division 4 of Part 7 of the Assessment Act. That Division is headed “Orders for departure from administrative assessment in special circumstances”. Section 116 provides for applications for such a departure to be made to a court under the Division. Section 117 sets out the matters about which a court must be satisfied before making an order. In summary those matters are:
(1)whether one or more of the grounds for departure in “the special circumstances of the case” from the administrative assessment in s 117(2) is established;
(2)whether it is “just and equitable” within the meaning of s 117(4) to make a particular departure order; and
(3)whether it is “otherwise proper” within the meaning of s 117(5) to make a particular departure order.
Section 118 then sets out the orders that may be made under Division 4.
It will have been seen from the applications of both mothers that they sought that the father’s liability for periodic child support “be capitalised into a lump [sum]” and that only Ms Baker sought that such lump sum “be placed into trust as security for payment”. However, it will later be seen that Ms Green’s application as formulated in her counsel’s final submissions was also for some form of trust arrangement.
There is no express provision in s 118 for the making of lump sum orders, nor for orders to be made to secure payment of periodic child support. However, s 141 (to be found in Division 8 which contains general provisions relating to court orders) provides that in exercising its powers under the Act the court may (amongst other things) order payment of a lump sum, or order that amounts to be paid be secured. It is accepted that the powers in s 141 may be used when making departure orders under Division 4 of Part 7 (see for example, the discussion by Fogarty J in Lightfoot & Hampson (1996) FLC 92-663 at 82,853-4 citing Kay J in S & S (Unreported, Full Court of the Family Court of Australia, Ellis, Baker and Kay JJ, 13 April 1994)). (We will later set out the terms of s 141(1).)
There is also power to make an order for the provision of lump sum child support in Division 5 of Part 7 of the Assessment Act. That Division (which comprises s 121 to s 131) is headed “Orders for provision of child support otherwise than in form of periodic amounts paid to carer”.
It seems clear from the passages of the transcript of the five day hearing (13-17 November 2006) before Bell J, which we will shortly set out, that the orders for “capitalised” sums sought by Ms Green and Ms Baker were being sought under Division 5 (also with reliance, if necessary, on the general powers in s 141). Given the references in the transcript to s 123, s 124 and s 125 (all of which are in Division 5), we will now set out those sections (in the form in which they stood as at 24 November 2006):
123 (1) Application may be made to a court having jurisdiction under this Act for an order that a liable parent provide child support for a child otherwise than in the form of periodic amounts paid to the carer entitled to child support.
(2) An application:
(a) may only be made if an administrative assessment is in force in relation to the child, the carer entitled to child support and the liable parent; and
(b) may be made by the carer entitled to child support or the liable parent.
(3) Before hearing the application, the court must hear and determine any pending application made to the court for an order under Division 4 (Orders for departure from administrative assessment in special circumstances) in relation to the child, the carer entitled to child support and the liable parent.
(4) Subject to section 145 (Registrar may intervene in proceedings), the parties to the application are the carer entitled to child support and the liable parent.
124 (1) Where:
(a) a custodian entitled to child support or a liable parent makes an application to a court under section 123; and
(b) the court is satisfied that it would be:
(i) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(ii) otherwise proper;
to make an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the carer entitled to child support;
the court may make the order.

(2) In determining the application, the court must have regard to:
(a) the administrative assessment in force in relation to the child, the carer entitled to child support and the liable parent; and
(b) any order in force under Division 4 (Orders for departure from administrative assessment in special circumstances) in relation to the child, the carer entitled to child support and the liable parent; and
(c) whether the carer entitled to child support is in receipt of an income tested pension, allowance or benefit or, if the carer entitled to child support is not in receipt of such a pension, allowance or benefit, whether the circumstances of the carer are such that, taking into account the effect of the order proposed to be made by the court, the carer would be unable to support himself or herself without an income tested pension, allowance or benefit; and
(d) the effect that the making by the carer entitled to child support of an application under section 128 (Pensioners entitled to apply to have assessed child support not reduced by more than 25%) would have on the order proposed to be made by the court (and any statement included in the order.
(3) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(3A) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).

(4) In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
(5) Subsections (2), (3), (3A) and (4) do not limit the matters to which the court may have regard.

125 (1) If the court makes an order under section 124, the court must state in the order whether the child support ordered to be provided by the liable parent is to be credited against the liable parent’s liability under any administrative assessment (in this Division called a relevant administrative assessment) of the child support payable by the liable parent to the carer entitled to child support that relates to the period, or a part of the period, for which the order has effect.
(2) The court may state that the child support is not to be credited against the liable parent’s liability under any relevant assessment only if it is satisfied that, in the special circumstances of the case, it would be:
(a) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(b) otherwise proper;
that the child support should not be credited.
(3) If the court states in the order that the child support is to be credited against the liable parent’s liability under any relevant administrative assessment, the court must also state in the order either:
(a) that the child support has an annual value of a specified amount and that the annual rate of the child support payable under any relevant administrative assessment is to be reduced by that amount; or
(b) that the child support is to count for a specified percentage of the annual rate of child support payable under any relevant administrative assessment.
(4) The court may, under subsections (1) and (3), make different provision in relation to different child support periods and in relation to different parts of a child support period.
(5) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a statement of the kind referred to in subsection (2), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
(5A) In having regard to the earning capacity of a parent of the child under paragraph 117(4)(da), the court may determine that the parent’s earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied as mentioned in subsection 117(7B).
(6) In determining whether it would be otherwise proper to make a statement of the kind referred to in subsection (2), the court must have regard to the matters mentioned in subsection 117(5).
(7) Subsections (5), (5A) and (6) do not limit the matters to which the court may have regard.

The hearing of the child support applications

At the opening of the hearing before his Honour, there was the following discussion, principally between his Honour and the father, which shows that all concerned understood that a departure order for lump sum child support was being sought:
[THE FATHER]: And anyway, your Honour, I asked if the departure application for lump sum child support filed on the mother in the Magistrates Court on 14 October be dismissed.
HIS HONOUR: Why?
[THE FATHER]: Because there are no arrears for child support and I've had to borrow the money for child support. And I've lived at my address for 37 years and I've - I haven't left the country and I'm not about to leave the country.
HIS HONOUR: Well, what she's saying is - this is a matter for hearing of the application - as I understand it, she's saying, (1) she doubts whether, in fact, you'll comply - don't jump - she doubts whether you'll comply with the order and that it is preferable that there be a lump sum amount made to protect the interests of the child and in case you do not comply with the order.
Secondly, insofar as your income is concerned, it is not only income that the Child Support Agency looks at, but your financial resources, i.e., property. And you have property, which on one is 1.7, on another is more than 2 million, which I would have thought was more than adequate to pay an amount of 68,000 or something, Mr Hamwood - - -
MR HAMWOOD [Counsel for the mothers]: Yes.
HIS HONOUR: - - - that the mother is looking for…
…I would not dismiss it… She has to prove it. She's got to prove that you're likely not to comply with the order because as the Full Court has said it is preferable - much more preferable to have periodic payments rather than lump sum because it could be either you or the child might get run over by a bus tomorrow. Right. Do you understand that?
[THE FATHER]: Yes. And - - -
HIS HONOUR: The onus is on her, not on you. Okay? We'll hear it. Next
matter? (Transcript 13/11/06 p 22)
Then at the conclusion of the evidence on the fourth day and in preparation for final submissions which were to be made the next day, counsel for Ms Green and Ms Baker provided to his Honour and to the father a list of authorities on which he would be relying in support of the child support applications, with the following exchange then occurring:
MR HAMWOOD: Your Honour, might I - more for [the father’s] benefit, I'm sure, than for yours, just hand up and hand to [the father] a couple of cases that I will be referring to?
HIS HONOUR: I see, yes, that's quite proper.
MR HAMWOOD: I've handed up the ones I've copied, but the other one, of course, is Dwyer & Maguire, which your Honour took a note of.
HIS HONOUR: I'm concerned about that part of the case. I take your point that you would be submitting, I assume, that there's little chance of his ever complying with a periodic order.
MR HAMWOOD: None, none.
HIS HONOUR: Then we've still got to look at his financial resource, haven't we? That's the problem.
MR HAMWOOD: Yes.
HIS HONOUR: If there is a problem. You say there isn't.
MR HAMWOOD: Lindenmayer J says well, that's a problem, but it's a problem for [the father], once the Court has determined what an appropriate level of maintenance for these children is. Nicholson CJ says much the same, I think, in Wheeler [sic, semble Whelan] & Rizzo and R & R, which is a decision of then Chief Federal Magistrate Bryant. That is also helpful in terms of that. But, once again, with the Child Support Assessment Act, there's elaborate little steps one has to go through.
HIS HONOUR: Isn't 117 involved, too, as well?
MR HAMWOOD: Yes, 117 comes first - - -
HIS HONOUR: Then 123?
MR HAMWOOD: Yes, that's right. So, you first of all have to find that there's special circumstances for a departure. Then you have to find that it's just and equitable and otherwise proper.
HIS HONOUR: And otherwise proper. If I don't do that, you're gone.
MR HAMWOOD: Then you go on to 123, and you find - and you determine whether it is just and equitable and otherwise proper to capitalise.
HIS HONOUR: If you've got - how have you capitalised it? I don't remember seeing - is it on a 3 per cent table or what?
MR HAMWOOD: No, your Honour. What we've done - and it seems to be - it is certainly the way that Chief Federal Magistrate Bryant did it, I recall, it gets around the question of making an order of capitalising in circumstances where there may be a change in residence or arrangements between the parties, is that a lump sum is simply allocated. That is then paid to the solicitors for the applicant on trust for both parties.
HIS HONOUR: I appreciate that, yes. But how do you find that capitalised sum?
MR HAMWOOD: You just - - -
HIS HONOUR: You just can't say $25 per week for the next six years? You've got to look at the capital sum?
MR HAMWOOD: You can do that, your Honour, because if there's any left over at the end of the time, it goes back to the father.
HIS HONOUR: Yes.
MR HAMWOOD: I'm happy to do it - - -
HIS HONOUR: I think you'd better do it on 3 per cent tables.
MR HAMWOOD: I'm happy to do that, your Honour.
HIS HONOUR: I suppose you've got to pluck a figure out of the air, haven't you. What's [M], 12, and [A] - - -
MR HAMWOOD: [A's] six.
HIS HONOUR: Six, and [B's] six.
MR HAMWOOD: Yes.
HIS HONOUR: Those two, you'd use the same multiplier, with [A], I suppose, three or four, at the most, but with [B] - you can't make it six.
MR HAMWOOD: No.
HIS HONOUR: Because you've got to take into account exigencies of life, Mr Hamwood. She might get run over by a bus, fall off a horse.
MR HAMWOOD: If she does, then the money goes back to her father. Or, if she moves to her father, he gets the money.
HIS HONOUR: Yes, yes, I see.
MR HAMWOOD: That gets around that whole exigency argument.
HIS HONOUR: Yes, the exigencies of life.
MR HAMWOOD: It is really moneys that have been sequestered by way of security to ensure the payments, and then the payments get made - - -
HIS HONOUR: If, in fact, she does get - - -
MR HAMWOOD: If she retains it, if she moves to [the father’s] residence, then it's still there.
HIS HONOUR: All right.
MR HAMWOOD: It goes back to him.
HIS HONOUR: Thank you. I'll have a look at that (Transcript 16/11/06 pp 388-391).
The following exchanges then occurred between his Honour and counsel for Ms Green and Ms Baker in the course of final submissions to his Honour:
MR HAMWOOD: Yes. Your Honour, the process that is required in - I think it was set out first in Geiselman [sic] - - -
… - - - under the Child Support Assessment Act 1989 where the Court is being asked to make a capitalised payment of child support, is a two-step process: firstly in relation to departure, which is under section 117 of the Act - actually it's a three-step process in relation to the departure: your Honour first must find that in the special circumstances - - -
…
MR HAMWOOD: - - - of the case it is appropriate that there be a departure, and then that the order of departure - - -
HIS HONOUR: And what do you say the special circumstances - - -
MR HAMWOOD: Special circumstances are primarily that the application of the child support assessment formula is never going to produce an appropriate result.
HIS HONOUR: But that's also one of the reasons for my making a lump sum, if I am persuaded.
MR HAMWOOD: Sorry, your Honour?
HIS HONOUR: That would also be one of the reasons for my making - - -
MR HAMWOOD: Yes.
HIS HONOUR: - - - a lump sum.
MR HAMWOOD: Yes, of course.
…
HIS HONOUR: But you say that your case is quite clearly that the only way, at this stage, that he would ever pay or comply with the child support assessment is either by borrowing money from his father or decreasing the equity in his farm?
MR HAMWOOD: Yes. Well the evidence is clear that he's been living - - -
HIS HONOUR: He's not been paying.
MR HAMWOOD: No. He's been living on the equity, and that emerges from a study of financial statements because every year the debt rises.
…
MR HAMWOOD: …the special circumstance is the total incapacity of the child support formula to deal with it.
HIS HONOUR: How do you capitalise this? How do you quantify it? I
should use - the word is "quantify". Have you got a little - - -
MR HAMWOOD: I've got some schedules, your Honour. (Transcript 17/11/06 p 425-427)
After considerable discussion with his Honour as to what the capitalised amounts should be, and how they should be calculated, counsel submitted that the order should be:
that the mother’s solicitors hold it on trust for both parties and pay the child support probably on a monthly basis, so it’s less onerous for the mother’s solicitors, pay it to the Child Support Agency so that it gets recorded in discharge of the father’s liabilities. And then at the end of the time if there’s money left over it goes back to the father. (Transcript 17/11/01, p 439)
It will be noted that at this point a trust arrangement for the capitalised sum out of which periodic amounts would be paid was being sought on behalf of both mothers (notwithstanding the terms of Ms Green’s original application).
Counsel then finally submitted, relying on Lindenmayer J’s decision in Dwyer & McGuire (1993) FLC 92-420 that there should be a “default” order which would require a sale of the father’s property, with the following exchange occurring between his Honour and counsel:
HIS HONOUR: Could I make a default order, Mr - - -
MR HAMWOOD: Yes.
HIS HONOUR: No, don't go - an order that he comply with the child support assessment, should he fail to do so for a period of two months that this order comes into force and affect? Sword of Damocles?
MR HAMWOOD: Your Honour - - -
HIS HONOUR: It's a default order. If he defaults under the order - under the child support assessment, this comes in.
MR HAMWOOD: Your Honour, in my submission, whilst in cases where there might have appeared to be - where there might in the past have appeared to be a willingness to pay on a periodic basis or there might in the future appear to be a reasonable prospect of capacity to pay on a periodic basis, then you would give - make that default provision. But, in my submission, looking at the history of [the father], nothing that you see in the history would give you any confidence that, despite his capacity to borrow - he has in the past been prepared to borrow so as to make payments on a periodic basis - he only pays when brought to Court.
In terms of his future prospects, we don't know, except to the extent that he says that he's been paying the payment to his former wife out of borrowings, whether he would make any such - I mean he's got to pay out of borrowings in the future anyway, because his own evidence is that [farming] is unlikely to be profitable in the foreseeable future. And in terms of his proposal, which emerged in cross-examination that he was going to run a profitable … [property], your Honour there's simply no evidence to support that. So, in my submission, the order that you would make would be that the husband, within 30 days, pay those sums into - - -
HIS HONOUR: Thirty days? Yes?
MR HAMWOOD: Well, your Honour, we're probably looking at a situation where it is going to be necessary to realise some part of - - -
HIS HONOUR: How could be [sic] possibly - - -
…
- - - sell that property within 30 days?
MR HAMWOOD: Ninety days.
…
HIS HONOUR: It'll have to be longer than 30. Yes, go on.
…
HIS HONOUR: And if it - - -
MR HAMWOOD: If he doesn't do so then the property be sold and the – and sufficient or - of his properties - of those … blocks, sufficient properties be sold to facilitate that payment.
HIS HONOUR: Okay. Have you anything further?
MR HAMWOOD: Nothing at this - - - (Transcript 17/11/01 p 441-442)
Immediately following that exchange, the hearing before his Honour concluded, with his Honour reserving his judgment until the following week.

The reasons for judgment in relation to child support

In his reasons for judgment delivered on 24 November 2006, his Honour began his discussion of the child support applications by observing:
57.The departure application: this deals with the question of s 117 and 123 of the relevant Act. I have to be satisfied as to those matters; there must be a special reason for departure pursuant to 117. What are they?...
His Honour then first considered Ms Baker’s application, saying
57.…Insofar as the [Baker] case is concerned it appears to me to be much clearer than it is in relation to the [Green] case. [The father] has continuously or frequently been in arrears under any assessment which he has received from the child support agency in relation to [B]. But just immediately prior to this trial being set down for hearing in February this year, he paid up the arrears; that brought him up to date. Thereafter he, once again, did not pay the assessment until this matter was set down for hearing and shortly before it commenced hearing on 6 November, once again paid the arrears.
58.The mother has complained that she finds it very difficult for the father to comply with the orders and notwithstanding, it has been suggested that the mere failure to comply with orders is not sufficient in this case, taking into consideration the fact that the father says that he earns $6 per week, that he has a property which on his own valuation is worth something between $800,000 to $900,000 and upon which he owes $340,000 I think at the maximum. He cannot afford to pay anything but believes in about six months' time he will get his own property back to a viable condition, convinces me that this is a special reason to depart.
59.Why should I make a lump sum order? Well, I have to take into consideration not only the needs of the child but I must also take into consideration whether or not he has the financial capacity to comply with a lump sum maintenance order. I have been referred to numerous authorities but particularly there is the matter of Bassingthwaite & Leane 16 FamLR 918; there is the Federal Magistrates Court Judgment of Bryant CFM of R v R No. 1 [2002] FMCfam 135 which was delivered on 4 July 2002 in which she refers to, in particular, the case of Gyselman; and also Whelan & Whitser [sic, semble Rizzo] [1994] 18 FLC 557. I can, in fact, make that order. It is an order which, of course is in my discretion and I have to work out with difficulty how much it is worth.
60.Insofar as [B] is concerned, it has been put before me that an assessment for [B's] needs, according to the mother, are $250 per week whereas the assessment was $272 and Mr Hamwood of counsel has, using the three per cent tables, extrapolated that out to an amount of, on actual costs, of $113,348, $113,350 rounded off.
61.If I am persuaded to make that order does the father have the financial resource to comply with it? In my opinion he does have...
His Honour then referred to the competing valuations which he had before him in relation to the father’s property and to the father’s “procedural fairness” concerns about the higher valuation. Having regard, it would seem, at least to some of the father’s concerns, his Honour accepted a valuation of $1.75 million. His Honour then continued:
63.So, on the one hand we have a valuation of a property of $1.75 million and that is bare as I understand. It does not take into consideration any machinery that he may have, although perhaps there isn't any. It does not take into consideration the value of the [livestock] which he has on someone else's property which is at least 50 head. It does not take into consideration [livestock] which I think he says are running on the property at this stage. I recognise that it is not for me to determine the value of the property, it is for me to make a rough estimate to indicate whether or not I consider he has the financial resource to pay any lump sum order I make. Clearly on that material he has an equity in the property of about $1.2 million to $1.5 million - around about $1.4 million which is more than adequate, I would have thought, to pay an amount of $113,350.
Then turning to Ms Green’s application, his Honour said:
64.Insofar as the [Green] case is concerned, although I said I do not think it is quite as strong, it is very similar in that they have been endeavouring to recover the arrears. He fails to comply with the order, notwithstanding the order now is, I think $25 per child per week. He is still in arrears according to the evidence of Ms [Green] and that she does set out that up until 2005 he has paid something like $2000 and that there is something like $1700 still owing. They have endeavoured to recover moneys from, I think some accounts. In particular they were hoping to recover some moneys from $118,000-odd which he received … for resumption of a certain part of his property, of which he complains that has all gone and he sets out how it went and it appears to me as though it has gone.
65.But if we took the [Green] case on the child support assessment which originally was for $408, it is now only, as I said, $25 each, but the claims by the mother for the weekly expenses for the two girls is $330. It must be that she learns to live on … farms to be able to say that she can support two girls of the ages of [M] and [A] on $330, but that is the evidence…

His Honour can then be seen as commencing to consider together both mothers’ applications, saying:
65.I must say that I am satisfied that the claims of [Ms Baker and Ms Green] in relation to the outgoings of the children are fair and reasonable.
66.I am satisfied that it is just and reasonable that there be a departure from the assessments of the child support agency and that it is in all other extents proper but [the father] has pointed out to me that this property has been in his family since 1940 or thereabouts. I recognise the close affinity that … farmers have with their properties, not only because I have had evidence before, but I have had some contact with … farms when I was young myself and I do not want to see his property sold over his head because he says he cannot afford to pay $113,350 for [B] and $73,000 for [A] and $51,000 for [M]. It appears that the document which was tendered by [counsel for the mothers] where he has done that calculation on the three per cent - by the way, also on the CSA assessment, it is of much higher amount but that appears - anyway, it is an exhibit now.
67.But as I said, I do not want [the father] to be put in the position of having to force sale his property so I am going to do what perhaps is a novel thing. I am going to order that he comply with the orders of the child support agency and should he fall into arrears for a period of three months, the property will be forthwith sold and he will forthwith pay to the solicitors for the applicant [Baker] the sum of $113,350 and for the child [A], the sum of $73,500 and for [M], the sum of $51,642 - $51,640 rounded off.
68.The order which I am making will be self explanatory but in fact if he fails to comply with the enforcement order that in itself will trigger for the lump sum payment to be made in lieu of compliance with the Child Support assessment.
69.I adjourn the enforcement of that order to a date to be fixed, to be brought on in 14 days' notice before me.
Following paragraph 69 the words “Recorded: Not Transcribed” appear in the transcript. The following paragraph then appears:
70.That is the amount of $215 and $330, that in other words is $545 per week. Very well, order accordingly.
We assume that the amounts mentioned in paragraph 70 were the weekly amounts of child support to be paid respectively for the children of Ms Baker and Ms Green by way of departure from the existing administrative assessments.
It will be convenient to repeat here the orders which his Honour then made on 24 November 2006 to give effect to the reasons which he had delivered, as well as those orders in their amended form as issued on 31 January 2007.

The child support orders

The original orders in favour of Ms Green were:
…
9.If the Father fails to comply with the orders of the child support agency and fall into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant’s Solicitors, …, the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.
10.Enforcement of Order (10) [sic, semble Order (9)] is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…

In the amended form those orders were:
…
9.The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $330.00 per week.
10.If the Father fails to comply with Order 9 of these Orders and falls into arrears for a period of three (3) months his property at [G] in the State of Queensland is to be sold and he shall forthwith pay to the Applicant’s Solicitors … the amount of $73,500 for the child [A] and $51,640 for the child [M] totalling $125,140.00.
11.Enforcement of Order (10) is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…
The original orders in favour of Ms Baker were:
…
14.If the Father fails to comply with the orders of the child support agency and fall into arrears for a period of three (3) months, his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant’s Solicitors, …, the amount of $113,350 for the child [B].
15.Enforcement of Order (14) is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…
In their amended form those orders were:
…
14.The decision of the Child Support Agency be departed from and in its place the father pay child support to the mother in the amount of $215.00 per week.
15.If the father fails to comply with Order 14 of these Orders and falls into arrears for a period of three (3) months his property at [G] in the State of Queensland is to be sold and he will forthwith pay to the Applicant’s Solicitors … the amount of $113,350 for the child [B].
16.Enforcement of Order (14) [sic, semble (15)] is adjourned to a date to be fixed, to be brought on in fourteen (14) days notice before the Honourable Justice Bell.
…

Discussion of the child support orders and reasons for judgment

When the orders made by his Honour in their amended form (leaving to one side the father’s complaints that he had no notice of the amendments) are considered, there is no difficulty, at least on its face, with the first of the orders, being the order which contains a departure (or variation) from the Child Support Agency’s assessment of the periodic, or weekly, amounts to be paid. It will, however, be necessary for us to return later to consider the reasoning which supported these departure orders for periodic amounts.
Difficulties clearly arise with the second order in both sets of orders, being the order which refers to the capitalised amount which had been sought by each mother and which was referred to in his Honour’s reasons. It will be recalled that counsel for the mothers had sought orders that the father pay capitalised lump sums to the mother’s solicitors, who would then hold such sums on trust to pay the required periodic sums each month to the Child Support Agency for payment to the mothers, with any amount not ultimately required to be paid to the mothers to be returned to the father (with an order for the sale of the father’s property as a “default” provision; that is, presumably, if the father defaulted in lodging the required lump sums with the solicitor for the mothers).
However, his Honour has not made any order which would require the father to pay a lump sum into trust to be held as security for further child support periodic obligations. Rather his Honour simply provided that if the father failed to make his periodic child support payments to the Agency and fell into arrears for a period of three months, his property would be sold and out of the proceeds “he” pay to the solicitor for the mothers the specified lump sum amounts for each child. It seems clear from paragraph 67 of his Honour’s reasons that he did in fact intend to make orders to this effect, notwithstanding the applications of the mothers for lump sums to be held in trust in order to secure future periodic payments of child support.
Further, it is difficult to understand why having made the orders for a sale of the father’s property in the event that he was in arrears for three months with his periodic child support payments, his Honour then in the third of his orders adjourned the “Enforcement” of the order for sale. Paragraphs 68 and 69 of his Honour’s reasons would appear to be addressed to this issue of enforcement, but they do not, in our view, explain what “Enforcement” process his Honour had in mind.
Any attempt in proceedings which did not involve the Child Support Agency, to make orders enforcing the father’s child support liabilities (which, as we understand the position from the submissions to his Honour of counsel for the mother, were registered for collection with the Agency) would as at 24 November 2006 have been of no effect given the provisions of s 30 of the Child Support (Registration & Collection) Act 1988 (Cth) (“the Registration & Collection Act”), which as it stood at that time, relevantly provided:
30 (1) If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order or maintenance agreement under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
…
(3) If a registrable maintenance liability is registered under this Act, the payee is not entitled to, and may not enforce payment of, amounts payable under the liability.
(See in this regard Darvall v Marmindie Holdings (2001) FLC 98-014; 27 Fam LR 267; [2000] FamCA 1614).
However, on 1 January 2007 the Registration & Collection Act was amended by the insertion of s 113A which permits enforcement proceedings to be instituted by a person other than the Agency, but only on certain conditions.
Section 113A, as introduced on 1 January 2007 and in the form it was in when O’Reilly J made her orders for the appointment of a trustee for sale of the father’s property on 7 September 2007, was as follows:
113A Recovery of debts by payees
Payee to notify Registrar of intention to institute a proceeding to
recover debt
(1) A payee of a registered maintenance liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:
(a) at least 14 days before instituting the proceeding; or
(b) in exceptional circumstances—within such shorter period as the court allows.
Note: For provisions relating to proceedings instituted under this section, see sections 111F and 111G.
Payee to notify Registrar of orders made
(2) A payee of a registered maintenance liability who has instituted a proceeding in a court to recover a debt in accordance with subsection (1) must give notice to the Registrar, in the manner specified by the Registrar, of any orders (including orders as to costs) made by the court in relation to the payee and the debt due in relation to the liability, within 14 days of the order being made.
Note: Section 16A provides for the Registrar to specify the manner in which a notice may be given.
(3) A payee commits an offence if:
(a) the court makes an order in relation to the payee and the debt due in relation to the liability; and
(b) the payee fails to notify the Registrar under subsection (2) of the order being made.
Penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
We will return later to this matter of enforcement of registered child support liabilities.
In seeking to uphold Bell J’s child support orders, counsel for the respondents in his supplementary written submissions (filed subsequent to the hearing on 3 March 2008) sought to rely in particular on the provisions of s 141(1) of the Assessment Act, which provides:
(1) In exercising its powers under this Act, a court may do all or any of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic amount;
(c) order that a specified transfer or settlement of property be made;
(d) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;
(e) order that any necessary deed or instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f) order that payment be made to a specified person or public authority or into court;
(g) make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;
(h) make an order expressed to be retrospective to such day as the court considers appropriate;
(j) subject to section 129 (Modification of orders under Division 5), make an order:
(i) discharging an order; or
(ii) suspending the operation of an order wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(iii) reviving wholly or in part the operation of an order that has been suspended; or
(iv) varying an order in any way;
(k) make an order imposing terms and conditions;
(m) make an order by consent;
(n) make any other order (whether or not of the same kind as those referred to in paragraphs (a) to (m) (inclusive)) that the court considers appropriate;
(p) make an order at any time.
Counsel submitted that his Honour had:

under s 141(1)(b) ordered the payment of periodic amounts in respect of both the respondents;
imposed a condition under s 141(1)(k) that if the appellant defaulted in paying the periodic amounts for a period of three months, the payment of that amount be secured under s 141(1)(d), either by payment by the appellant of a lump sum to be used as security and to be drawn against to discharge the obligation under a periodic order or under s 141(1)(e) that a portion of the appellant’s property be sold so as to provide the funds which would in turn provide security for the due performance of the periodic orders;
made permanent orders as provided for under s 141(1)(g) in that they made provision for child support in respect of the subject children for the period of their minority and dependence.

We agree that his Honour ordered periodic amounts of child support (albeit only in his amended orders). We would also be prepared to agree that his Honour could be read as imposing a condition in the event that there was a default in the periodic payments. But we do not agree that that condition was for the payment by the father of a lump sum “to be used as security and to be drawn against to discharge the obligation under a periodic order” or that it was for the sale of property to “provide security for the due performance of the periodic orders”. Not only did his Honour not use the word “security” or “secured” in his orders, he did not use either of those words in his reasons for judgment. Moreover, there is nothing in his reasons to suggest that he was determining applications for the provision of a lump sum to be held in trust as security for the payment of future periodic amounts.
Counsel for the respondents further submitted that if this Court was to conclude “that his Honour’s judgment, whilst sound in essence, was lacking in the degree of particularity desired to give clarity to the parties and the [C]hild Support Agency as to the terms of the order and its effect on the appellant’s liability to be assessed for child support during the period of currency of the orders”, then this Court could “elucidate” those orders to provide:

that the periodic child support liabilities be assessed as $215 per week for B and $165 each per week for M and A and be payable until the particular child turned 18;
that the appellant having failed to comply with the orders in respect of periodic payments by way of child support for a period in excess of three months from the date of Bell J’s orders, be ordered to provide by way of security for the performance of those orders the sum of $113,350 in respect of B, $73,500 in respect of A and $51,640 in respect of M; and
that the orders staying the orders of Justice O’Reilly of 7 September 2007 for the sale of the father’s property be discharged.

Unfortunately for the respondents, we are unable to be satisfied that his Honour’s judgment was, in counsel’s words, “sound in essence”, for the following reasons.
It must be acknowledged that his Honour was faced with unusual applications, being for orders for capitalised lump sums to be held in trust to secure future periodic payments of child support. The transcript shows that his Honour received some, but rather limited, assistance from counsel for the applicant mothers. But the fact of the matter is that on the face of his reasons, his Honour did not determine the application which was before him.
It is clear from the transcript that for purposes of determining the lump sum security application his Honour was asked to follow the decisions of Lindenmayer J in Dwyer & McGuire (supra), Nicholson CJ in Whelan & Rizzo (1995) FLC 92-567 and Bryant CFM (as she then was) in R & R (No 1) [2002] FMCAfam 153, and accordingly to apply the provisions of Division 5 of Part 7 of the Assessment Act, notably s 124 and s 125. While his Honour made passing reference in his reasons to Whelan & Rizzo (supra) and R & R (No 1) (supra), he cannot be seen as having followed those decisions and applied the relevant sections of Division 5. Nor did he make sufficient findings which would enable us to now determine the applications which were before his Honour.
His Honour can certainly be seen as attempting to apply the provisions of Division 4, which he had to do both because there were before him applications for departure orders from the Agency’s assessment of periodic amounts, and also because a determination under Division 4 would, in the circumstances of this case, be a necessary prerequisite to a determination under Division 5. (See s 123(3) and 124(2)(b)).
However, it appears from his Honour’s reasons, that before he had completed his necessary determination of an appropriate departure order for periodic amounts under Division 4, he moved on to consider the lump sum issue. It is true that many of the matters about which the court has to satisfy itself before it can make an order under Division 4 are the same matters about which the court has to satisfy itself before making an order under Division 5 (as is expressly recognised in s 124(3) and (4), and s 125(5) and (6)). The burden imposed by this duplication of reasoning can be lessened by adopting in the application of Division 5 the findings made for the purposes of Division 4. However, before that course can be adopted, the findings required for the making of an order under Division 4, must be clearly made. As earlier mentioned those findings are:
(1)whether one or more of the grounds for departure on the basis of “the special circumstances of the case” from the administrative assessment in s 117(2) is established;
(2)whether it is “just and equitable” within the meaning of s 117(4) to make a particular departure order; and
(3)whether it is “otherwise proper” within the meaning of s 117(5) to make a particular departure order.
It would seem from his Honour’s reasons and also from passages in the transcript of the hearing before him, that the special circumstances (referred to by his Honour in paragraph 57 as “a special reason”) which he proposed to rely on to justify the making of departure orders were that the father had little income and had a history of non-payment of child support, but that he also possessed valuable property.
These circumstance would certainly come within the terms of s 117(2)(c) and thus constitute “special circumstances” for the purposes of the applications of both Ms Green and Ms Baker, although on a strict reading of his Honour’s reasons, he appears only to have made an express finding of “special circumstances” in relation to Ms Baker.
But even if it can be accepted that his Honour impliedly found “special circumstances” existed in relation to the applications of both Ms Green and Ms Baker, he was required to find that his proposed orders were “just and equitable” and “otherwise proper”.
The matters to which a court must have regard in determining whether a proposed departure order is “just and equitable” and “otherwise proper” are set out principally in sub-sections 117(4) and (5), which were in the following form when his Honour delivered his judgment:
(4) In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b) the proper needs of the child; and
(c) the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da) the earning capacity of each parent who is a party to the proceeding; and
(e) the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f) the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g) any hardship that would be caused:
(i) to:
(A) the child; or
(B) the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A) the liable parent; or
(B) any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5) In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a) the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b) the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.

His Honour stated (in paragraph 66 of his reasons) that he was satisfied that it was “just and reasonable” and “in all other extents proper”

that there be a departure from the Agency’s assessments. But of the many matters in s 117(4) and (5) to which he was required to have regard in determining if his orders were “just and equitable” and “otherwise proper”, the only matters which he appears, at least on the face of his reasons, to have considered, apart from the value of the father’s property and his history of child support arrears, were the costs of the children. There was, for example, no consideration of the financial circumstances of either of the mothers (which is a matter about which the father complains in his grounds of appeal earlier set out).
We also consider that the father’s overall financial circumstances (including his liabilities and his responsibility for the child of his present marriage), and which were the subject of the father’s written submissions to his Honour, required much greater consideration and analysis by his Honour in determining whether there were “special circumstances” justifying departure orders for each application and/or whether such orders would be “just and equitable”.

Conclusion in relation to the child support orders of 24 November 2006

For these reasons therefore we cannot be satisfied that, in the words of counsel for the respondents, his Honour’s judgment was “sound in essence” with the result that we could make the child support orders which either his Honour intended to make or had been asked by the mothers to make. It is unfortunate for the parties given the long history of this litigation that there is therefore no alternative other than to set aside the orders of Bell J of 24 November 2006 and remit the applications with respect to child support which were before his Honour for re-hearing.
Before concluding on the issue of the child support orders of 24 November 2006, we observe that we are not necessarily persuaded that an application for the provision of a lump sum to be placed in trust to secure periodic payments of child support must necessarily be determined under Division 5 of Part 7 of the Assessment Act. It seems to us, at least as presently advised, that such an application could be determined, and determined more simply, under Division 4 in conjunction with the general powers in s 141 (particularly given that the terms of that section would appear to indicate that it can be called in aid of either Division 4 or Division 5. See also Lighfoot & Hampson (supra)).
However, the authorities to which his Honour was referred, and to which we have referred, indicate that such an application should be determined under Division 5. In the absence of full argument on the point we would certainly not regard those authorities as incorrectly decided. We would only add that this case illustrates how important it is for a court exercising jurisdiction under Part 7 of the Assessment Act, to identify exactly which provisions in that Part it is applying, and to be seen to address the matters referred to in those provisions.

The appeals against the orders of 31 January 2007 and 7 September 2007

Our decision that the child support orders of 24 November 2006 must be set aside means that we must also allow the appeal against the “slip rule” orders made on 31 January 2007 and the orders of 7 September 2007 for a trust for sale of the father’s property for the purpose of enforcing the orders of 24 November 2006.
It will be clear from our earlier discussion that the amendments made by the orders of 31 January 2007 to the orders of 24 November 2007 could not operate to save the latter orders.
The only further observation to be made in relation to the orders of 31 January 2007 is that this case also demonstrates the importance of adherence to the procedure prescribed in rule 17.02 of the Family Law Rules 2004 (Cth) for the making of “slip rule amendments”, particularly the need for notice to all parties so that they have the opportunity to be heard in relation to a proposed amendment. It should be noted that counsel for the respondents very fairly conceded in his supplementary submissions that this procedure had not been followed in this case.
In relation to the appeal against the orders of 7 September 2007 we again draw attention to the provisions s 30 and s 113A of the Registration and Collection Act which govern enforcement of registered maintenance liabilities. There must be a question as to whether an application for lump sum security for future periodic payments (such as was made in this case) would amount to enforcement within the meaning of s 30(3), and also whether a default sale order (such as was also sought in this case) would come within the meaning of s 30(3). Given these uncertainties it would seem prudent, particularly in light of the provisions of s 113A(3) and (4), for notice to be given to the Registrar of the Child Support Agency of proceedings in which such applications are to be made and of orders made in such proceedings.

The need for leave to appeal the child support orders

Under s 102 of the Assessment Act, leave is needed to appeal orders made under that Act. It appears that the father has at no stage formally sought such leave.
Given the father’s self-represented status and that the need for leave to appeal is a requirement often overlooked by legal practitioners, and given the errors of principle which we have identified in the making of the orders and the very substantial impact on the father if the orders of 24 March 2006, 31 January 2007 and 7 September 2007 were to stand, we propose to grant the father leave to appeal all of those orders, notwithstanding the submissions of counsel for the respondent that we should not do so. It is important in this context to bear in mind that the order for the sale of the father’s property in this case was not for the purposes of satisfying arrears of child support, but rather to provide for future child support obligations (which might or might not ultimately be incurred).

The application to dismiss the appeals against the parenting orders of 24 November 2006

It will be recalled that the application by the respondent mothers for the summary dismissal of the father’s appeals against the parenting orders made by Bell J on 24 November 2006 (the content and effect of which is summarised in paras 11 and 13 of these reasons) was based both on Rule 22.58 of the Family Law Rules, with the respondents relying on an alleged failure by the father to prosecute the appeals with due diligence, and also on s 96AA of the Family Law Act, with the respondents’ claim being that the notices of appeal did not disclose proper grounds of appeal.
We will consider first s 96AA and the question of whether the father’s notices of appeal disclose proper grounds of appeal. For this purpose it is necessary to set out in full the grounds which are contained in the father’s notices of appeal against the orders made in favour of Ms Green (NA 3/07), and against the orders made in favour of Ms Baker (NA 2/07):
NA 3/07
1.I was Denied Natural Justice.
2.I was not given the opportunity to bring evidence from any of my witnesses.
3.I was by the Court refused the issuance of a documentary Subpoeana.
4.Another party did not provide me with the Documents I required them to produce.
5.I was denied the opportunity to bring witnesses of my own choosing.
6.Justice Bell should have disqualified himself for clear, on the record bias.
7.National Transcription Services provided me with Audio Copies of previous hearings, as requested by the Family Law Court [sic] but with vital information excised, thus preventing me from preparing my case.
8.I have requested permission from the Family Court to purchase Untouched Audio Copies of the Hearings in Judgement [sic] but such has not been supplied.
9.Child Support was unreasonably assessed and improper sanctions applied, especially as the mother’s income is considerably higher than the father’s income.
10.The orders made contravened the provisions of the Administrative Decisions (Judicial Review) Act 1977, inter alia as follows:
Section 5(1)(b) and (e) and (f) and (g) and (h) and (i).
11.As the Court to date has refused me a reasonable or viable opportunity to review the record of hearing, I reserve my rights in respect of this appeal and seek leave to amend this appeal within a reasonable time after I do obtain access on a reasonable and affordable basis to the court record.
NA 2/07
1.I was Denied Natural Justice.
2.I was not given the opportunity to bring evidence from any of my witnesses.
3.I was not given the opportunity to cross-examine all the other parties [sic] witnesses.
4.I was not allowed to cross-examine the other party fully.
5.I was by the Court refused the issuance of vital witness and documentary Subpoenas.
6.I was denied the opportunity to bring witnesses of my own choosing.
7.Justice Bell should have disqualified himself for clear, on the record bias.
8.Another party did not provide me with the Documents I required them to produce.
9.The other party did not provide me with the name and address, for service of legal process, of the other party’s (Ms [Baker’s]) new partner.
10.National Transcription Services provided me with Audio Copies of previous hearings, as requested by the Family Law Court [sic] but with vital information excised, thus preventing me from preparing my case.
11.I have requested permission from the Family Court to purchase Untouched Audio Copies of the Hearings in Judgement [sic] but such has not been supplied.
12.I was denied the opportunity to cross-examine a vital witness who had been living in the mothers [sic] household for a considerable amount of time.
13.Child Support was unreasonably assessed and improper sanctions applied, especially as the mother’s income is considerably higher than the father’s income.
14.The orders made contravened the provisions of the Administrative Decisions (Judicial Review) Act 1977, inter alia as follows:
Section 5(1)(b) and (e) and (f) and (g) and (h) and (i).
15.As the Court to date has refused me a reasonable or viable opportunity to review the record of hearing, I reserve my rights in respect of this appeal and seek leave to amend this appeal within a reasonable time after I do obtain access on a reasonable and affordable basis to the court record.
It will be seen that the content of the grounds in both notices of appeal is virtually identical, save that in the appeal against the orders involving Ms Baker (NA 2/07) the father asserts that he was not allowed to cross-examine Ms Baker fully and that he was not given the opportunity to cross-examine her other witnesses.
In the context of the grounds of appeal against the parenting orders, we do not have to consider the grounds directed to the child support orders (Ground 9 in NA 3/07 and Ground 13 in NA 2/07), which we have already found to have substance.
The complaints in Grounds 7, 8 and 11 of NA 3/07 and Grounds 10, 11 and 15 of NA 2/07 concerning transcription services are not valid grounds of appeal. But in any event, it will be recalled that the court, initially at its expense, provided the father with the transcript of the five day hearing before Bell J. That transcript reads as if it is complete and that nothing has been “excised” from it.
The grounds of appeal raising the Administrative Decisions (Judicial Review) Act 1977 (Cth) are not competent grounds of appeal against discretionary orders made under Part 7 of the Family Law Act (Ground 10 of NA 3/07 and Ground 14 of NA 2/07).
A complaint that another party did not provide documents which the appellant required that party to produce, or provide an address for service for that other party’s partner (Ground 4 of NA 3/07 and Grounds 8 and 9 of NA 2/07) are complaints which should have been made to the Judge at first instance, and could not constitute competent grounds of appeal, unless there was a failure to accord procedural fairness. The transcript of the hearing shows that this was not so in the present case.
The assertion that Bell J should have disqualified himself “for clear, on the record bias” (Ground 6 of NA 3/07 and Ground 7 of NA 2/07) does not constitute a competent ground of appeal given that the appellant father conceded before us that he had not asked his Honour to disqualify himself during the hearing in November 2006. But in relation to this matter, we consider it important to say that on a reading of the entire transcript of the proceedings before his Honour in November 2006 nothing emerges from it which would support a claim of actual or apprehended bias on the part of his Honour against the father. It should also be noted that in his written submissions filed 30 July 2006, the father provided a lengthy analysis of the “bias” which he claims was demonstrated in his Honour’s reasons for judgment of 24 November 2006. None of these claims in this regard have substance.
At the hearing on 3 March 2008 we endeavoured to explore with the father the substance of his claim that he was denied natural justice (Ground 1 of both appeals) or as he expressed it in his oral and written submissions to us, that he was denied procedural fairness. It emerged from our discussion with the father that these claims essentially relate to the matters which are the subject of all remaining grounds of appeal, and relate to the father’s opportunity to bring witnesses of his own choosing and to cross-examine the other parties’ witnesses and to the time given to him to do so (Grounds 1, 2, 3 and 5 of NA 3/07 and Grounds 2, 3, 4, 5, 6 and 12 of NA 2/07).
The transcript shows that his Honour did on some occasions impose time limits on cross-examinations. But a Judge is entitled to do this. On our reading of the transcript, there could be no valid complaint regarding the manner in which his Honour did this in the present case.
Technically speaking, the grounds of appeal directed to these matters relating to the calling of witnesses and cross-examination cannot be said to be proper grounds of appeal because they lack specificity. However, given the self-represented status of the father, we propose to consider the position as it appears from the transcript in relation to the various witnesses which he has referred to in his oral and written submissions.
The first witness referred to by the father in his oral submissions was a Mr L, who is the partner or former partner of Ms Baker. Mr L had sworn two affidavits in support of her case. Ms Baker’s legal representatives had apparently applied to have Mr L available for cross-examination by phone because he was said to be working in North Queensland.
On the first day of the hearing before Bell J, the father informed his Honour that he understood that Mr L was not in North Queensland but rather in the home town of the parties (which is a few hours drive from Brisbane). His Honour explained to the father that wherever Mr L was, he could be cross-examined by phone, but the father said he would prefer that he attended and be cross-examined in person in order that he could be shown some photographs and his credibility better assessed. His Honour then explained to the father that if Mr L was to attend in person, the father would have to pay his reasonable expenses. His Honour asked counsel for Ms Baker to find out the likely costs (Transcript 13/11/06 pp 36-38).
At the commencement of the second day of the hearing, counsel for Ms Baker provided his Honour with some estimates of the costs of bringing Mr L from central Queensland to give evidence in person. His Honour ultimately ruled that the costs involved in bringing Mr L to court outweighed his own preference for having Mr L appear in person. He therefore gave leave for Mr L to be cross-examined by telephone (Transcript 14/11/06 pp 87-94).
Mr L was then cross-examined by phone on the third day of the hearing by the father and by the Independent Children’s Lawyer (Transcript 15/11/06, p 227). On our reading of the transcript of Mr L’s evidence, we cannot see that there was any prejudice to the father’s case caused by the fact that Mr L gave his evidence by telephone. Nor do we consider that his Honour was in error in determining that Mr L should be cross-examined by telephone.
The next witness referred to by the father in his oral submissions to us was Ms I, with the father’s complaint being that he was not given an opportunity to cross-examine her. However, it appears from the transcript of the trial that counsel for Ms Green and Ms Baker withdrew reliance on Ms I’s affidavit when she was unavailable for cross-examination (Transcript 15/11/06, pp 182-3). As Ms I’s evidence was not ultimately relied on by the mothers in support of their cases, there can be no substance in the father’s complaint that he was unable to cross-examine her.
A further witness, or potential witness, who was referred to by the father before us was Ms S (who is apparently the former wife of Mr L), with the complaint apparently being that the court did not issue a subpoena to her as had apparently been requested by the father prior to the trial. The father informed his Honour of this situation at a very early stage on the first day of the hearing. However, the discussion which followed indicated that there was uncertainty as to her whereabouts (Transcript 13/11/06, p 5).
The transcript of the trial reveals that apart from referring to Ms S in some of his questions while cross-examining Mr L, the father did not again raise the issue of the subpoena to her until his final submissions to his Honour when he again raised the complaint that the court had refused to issue a subpoena to her. His Honour then correctly observed that the matter had not been “prosecuted” before him (Transcript 16/11/06 p 304). It was clearly too late in final submissions on the fifth day of the trial for the issue of the subpoena to Ms S to be pursued.
The final specific witness referred to by the father before us on 3 March 2008 was a Mr T. He had apparently provided an affidavit in support of the father’s case and the father had received notice from the representatives of the mother that Mr T was required for cross-examination. However, the father informed Bell J on the first day of the trial that Mr T was reluctant to come to court “after what … the other side have said to him”. His Honour then assured the father that he would look after any witness in his court (Transcript 13/11/06, pp 21-22).
Apart then from some brief references to Mr T in the father’s cross-examination of Ms Baker, Mr L and Ms W, there appears to have been no further mention of Mr T during the hearing before his Honour. Significantly, there does not appear to have been any complaint by counsel for the mother that Mr T was not produced for cross-examination. Nor can that fact be seen to have impacted adversely on the father’s case in any way.
A more general complaint from the father was that Bell J had not referred in his reasons for judgment to any of the “more than 12 witnesses who put in affidavits” in support of his case. As we endeavoured to explain to the father when he was before us, there is no requirement for a trial Judge to refer in his or her reasons for judgment to every witness who gives evidence in the proceedings. This is particularly so in this jurisdiction where litigants commonly seek to rely on the evidence of many friends and relatives while at the same time the court has available to it the often far more useful independent evidence of expert counsellors, psychologists, or doctors (as was the position in the present case).
Finally, the father raised with us some matters which might indicate that the child B was being physically abused and also that he was having problems at school. It emerged, however, that these were matters which had arisen subsequent to the proceedings before Bell J.

In light of the above analysis, we are satisfied that it is open to us to dismiss the father’s appeal against the parenting orders pursuant to s 96AA of the Family Law Act 1975 (Cth) on the basis that his notice of appeal discloses no proper grounds of appeal against those orders. However, again given, particularly, the father’s self-represented status, we consider that before doing so we should satisfy ourselves that no error appears on the face of his Honour’s reasons for the parenting orders (cf Van Reesema & Giameos).
It appears from his Honour’s reasons for judgment in relation to the arrangements for the two daughters of the father and Ms Green, that the essential issue in the proceedings was the father’s claim that Ms Green was endeavouring to alienate the affections of the children from him. His Honour can be seen as having considered the evidence regarding this issue and concluded that the father’s claim had no substance. His Honour’s reasons appear sound in this regard.
Further, his Honour can be seen as having had careful regard to the expert evidence of the family reporter, Ms W. In light of her evidence he concluded that there should certainly be no change in the existing arrangements for the eldest child (whereby she lived with her mother and spent weekend and holiday time with the father) and that the arrangements should not be different for M and her younger sister A. Accordingly, no change was made for either child, with his Honour expressly rejecting a “shared care” arrangement for them. Again his Honour’s reasoning appears sound.
It is clear from his Honour’s reasons that the position concerning Ms Baker’s son, B, was far more difficult, with B having considerable behavioural difficulties, with some allegations of risk of harm to B while in his mother’s care and with some shortcomings on her part and difficulties in her relationship with the father.
A reading of the transcript provides considerable appreciation of the many difficulties which existed in relation to B. We consider that in his reasons for judgment his Honour dealt more than adequately with the evidence of various individual witnesses, and that his decision that B should remain living with his mother and spending time with his father is certainly supported by the evidence.
Finally in relation to B, it should be noted that it is clear from the father’s submissions that a particular issue of concern to him was a certain medication which has been prescribed for B. His Honour’s summary of the medical evidence in relation to this matter also appears sound, and his conclusions were clearly open to him.
We are therefore satisfied that it is appropriate for us to dismiss the appeals against the parenting orders pursuant to s 96AA without further hearing.

Other matters

In his subsequent written submissions filed on 30 June 2008 the father raised again various complaints of an administrative nature, which even if substantiated, could not justify the interference by an appeal court with the discretionary decisions made by Bell J (or O’Reilly J) in relation to parenting (or child support) matters.
The father also referred again to procedural matters arising prior to the listing of the appeals for hearing, in particular the settling of the appeal book index. He also indicates that he wished to appeal the various procedural orders made by May J on 8 February 2008, and he can be read as taking exception to the fact that her Honour is a member of this Full Court.
In relation to this matter, we draw attention to the fact that s 94(2F) of the Family Law Act provides that no appeal lies to the Full Court from procedural orders made under s 94(2B) and (2D) (which were the provisions under which the orders of 8 February 2008 were made). We would also explain that it is common practice for a Judge of the Appeal Division who has made procedural directions for an appeal to be a member of the Full Court which hears the appeal. This practice can be of great assistance to both the litigants and the Bench, particularly in a relatively complex case such as the present where one of the parties is self-represented.

Costs

We will include in our orders directions for any party to make an application in relation to costs (including costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth)) of the appeals and the applications which have been the subject of these reasons for judgment.

I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court

Associate:

Date: 7 July 2009