King and Aames and Ors

[2013] FamCA 263

FAMILY COURT OF AUSTRALIA

KING & AAMES AND ORS [2013] FamCA 263

FAMILY LAW – CHILDREN – With whom a child spends time – Where the child is to attend counselling to reconcile his relationship with his father and older brother.
FAMILY LAW – CONTRAVENTION – Where the mother claims reasonable excuse for the contravention – Child’s views.
FAMILY LAW – CHILD SUPPORT – Application for a declaration – Where the father is in arrears – Where the father is bankrupt.
FAMILY LAW – APPEAL – Appeal of the Social Security Appeals Tribunal decision – Time for appeal – Where the father sought leave to extend the time within which he may appeal– Question of law rather than question of fact – Rules of court – Where the application for an extension of time within which an appeal may be lodged is denied.

Child Support (Registration and Collection) Act 1988 (Cth) Part VIII Division 3, s 88, s 110B, s 110C.
Family Law Act 1975 (Cth) Part VII Division 13A , s 70NAE.
Family Law Rules 2004 (Cth) Chapter 4 Part 4.2 Division 4.2.5, r 1.12, r 4.16, r 4.17, r 4.21, r 4.22, r 4.23.

Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321.
Ejueyitsi v Bond University [2012] FCA 1514.
Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706.
Gallo v Dawson (1990) 93 ALR 479.
Schmidt v Geller (SSAT Appeal) [2012] FMCAfam 735.
Servos v Repatriation Commission (1995) 56 FCR 377.
Waterford v The Commonwealth (1987) 163 CLR 54.

APPLICANT: Ms King

1^ST RESPONDENT: Mr Aames

2^ND RESPONDENT: Official Trustee In Bankruptcy

3^RD RESPONDENT: Child Support Registrar

FILE NUMBER: BRC 10933 of 2009

DATE DELIVERED: 26 April 2013

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 26 and 27 March 2013

REPRESENTATION

FOR THE APPLICANT: Ms King in Person

FOR THE 1^ST RESPONDENT: Mr Aames in Person

FOR THE 2^ND RESPONDENT: No Appearance

COUNSEL FOR THE 3^RD RESPONDENT: Mr Black

SOLICITOR FOR THE 3^RD RESPONDENT: Mr Foley
Australian Government Solicitor

Orders

1. That the mother shall make all necessary arrangements for the child, S AAMES, born … 1998 (“S”), to attend the service known as “Headspace” situated at U, if it is agreed by that service to accommodate S, for S to receive such counselling as may be able to be provided by that service, particularly with a view to reconciling his relationships with his father and with his elder brother, J AAMES, born … 1992 (“J”), such counselling to involve the father and/or J to the extent that each of the father and J is willing to be involved in such counselling, but at the discretion and direction of the particular counsellor who is providing service to the child, S, through that place. 

2. That should there be any fees or costs charged by the service known as “Headspace” in respect of any counselling service provided to the child, S, same shall be borne equally by the mother and the father.

3. The contravention applications of the father against the mother are dismissed.

4. The father’s application for an extension of time within which to file an appeal against the decision of the Social Security Appeals Tribunal of 28 June 2010 is dismissed.

IT IS ALSO DECLARED

1. That the father, Mr Aames, is indebted to the mother, Ms King, in respect of unpaid child support arrears for the periods 24 September 2003 to 18 November 2007, and 24 November 2008 to 3 April 2009 in the total amount of $92,975.64 (ninety two thousand nine hundred and seventy five dollars and sixty four cents).

IT IS NOTED that publication of this judgment by this Court under the pseudonym King & Aames has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10933 of 2009

Ms King

Applicant

And

Mr Aames

1^st Respondent

And

Official Trustee In Bankruptcy

2^nd Respondent

And

Child Support Registrar
3^rd Respondent

REASONS FOR JUDGMENT

1. These are proceedings between Ms King (“the mother”) and Mr Aames (“the father).  There are other parties to the proceedings also: the two trustees in bankruptcy of Mr Aames, who are collectively the second respondent; and the Child Support Registrar who is the third respondent.

2. Various applications were heard by me in a trial over two days on Tuesday the 26th, and Wednesday the 27^th of March, 2013.  The proceedings were about a couple of distinct issues.  The first one was a child support issue.  The applicant mother had commenced proceedings sometime back in early 2011 in the Federal Magistrates Court (as it was then called).  These proceedings were in respect of child support arrears allegedly owing to her by the father pursuant to various assessments made over the years for their four children: J, born in 1992; T, born in 1995; L, born in 1997; and S, born in 1998.

3. There were also parenting proceedings that were joined with the child support proceedings, and those parenting proceedings were originally commenced by the respondent father in or around May 2010. They, too, were in the Federal Magistrates Court but were transferred to this Court.  Originally, these parenting proceedings were to go to trial in or around early March 2011, but for reasons not clear to me, that trial never commenced and was adjourned. The matter was transferred to this Court and came to trial before me late last month.

4. The father’s parenting orders application can be described as interesting, to say the least, in that on 29 February 2012 the parenting proceedings which he had previously commenced were concluded on a final basis.  This was done by an order made by Registrar Brooks on 29 February 2012 with the consent of the father and the mother and the Independent Children’s Lawyer who was in the matter still at that time.   

5. Those orders provided for the children, being the two children who remained under 18 years of age at that time, namely L and S, to live with the mother.  They also provided for the mother to have sole parental responsibility for the major long-term issues, as that term is defined in the Family Law Act 1975 (Cth), and they provided for the father to spend time with and communicate with the children as agreed between the mother and father.

6. However, before the child support proceedings got to trial, the father filed more parenting applications. Those applications fall into two categories.  Firstly, the father applies for a parenting order in respect of the youngest boy, S.  After discussion with him during his oral submissions at the end of the trial, he made it clear to the Court that he was seeking an order that S participate in structured, counselled reconciliation of their relationship with an appropriately qualified independent expert based in the F area.  I shall return to discussion of this issue later.

7. The second aspect of the parenting proceedings that the father had commenced in his further applications were contravention applications.  Those alleged contraventions were not very well particularised, and at the start of the trial after discussion with the father and consideration of the evidence that was being relied upon by him, I determined that I would hear and deal with only two alleged contraventions. I did that because I considered the father had given some evidence about those two alleged contraventions in the affidavit material that he had filed and was relying upon in the proceedings.

8. I determined that the father was alleging that the mother contravened, without reasonable excuse, primary parenting orders made by Federal Magistrate Jarrett (as his Honour then was) on 28 July 2009, wherein he made interim parenting orders that the children, T, L and S, live with the father, and that they spend time with their mother on alternate weekends.

9. The father’s two separate allegations of contravention included an allegation that on or around 18 September 2009 the mother failed to return the child, T, to the father’s care pursuant to those orders without reasonable excuse.  They also included an allegation that at the end of the Christmas-New Year school holidays of 2010-2011, the mother failed to return the child, S, to the father’s care pursuant to the orders, without reasonable excuse. 

10. The mother did not oppose the hearing of the contravention applications.  She indicated that she was prepared to meet them.  She informed the Court that she accepted that she had contravened the orders of Jarrett FM but asserted that she had reasonable excuse for doing so. 

11. There was one final aspect of the proceedings that I heard over the two days of 26 and 27 March: another application by the father.  The father applied, by way of application filed on 25 February 2013, for an order that the time within which he is able to appeal against a decision of the Social Security Appeals Tribunal, in respect of a child support matter, be extended up to and including that date of 25 February 2013, so that an appeal made by him against the decision of the Social Security Appeals Tribunal made on 28th day of June 2010 could proceed and be heard.

12. At the same time as the father filed his application for an extension of time within which to be allowed to file the appeal, he filed a notice of appeal against the Social Security Appeal Tribunal’s decision.  I had made it clear prior to the commencement of the trial, during previous directions hearings, I would entertain his application for leave to extend time during the hearing that I conducted on 26 and 27 March.  I also made it clear that, if I determined as a result of that process that leave to extend time was to be granted, I would hear and determine the appeal as well.

Some background

1. The parties began living together in 1989 and were married in 1994.  They separated, on a final basis, in or around 2001.  At that time, of course, all four of their children were still quite young. 

2. The father at the time of separation was involved in the operation of an extensive construction contracting business based principally in the outer suburbs of Brisbane.  He conducted his business through various corporate and trust entities and the business principally provided construction contracting work to developers who were undertaking suburban property development on the growing outskirts of Brisbane. The father was a busy man. He accepts that he was always working between five and a half and seven days a week. 

3. There was a substantial amount of conflict between the parties that occurred at or around the time of their separation.  The conflict that emerged then does not ever appear to have dissipated.  The four children resided with the mother from shortly after their separation, and they spent time with their father on and off between 2001 and 2003.  At some time during that period, the father commenced parenting proceedings in the Court in which he sought to have orders made in his favour that the four children live principally with him.

4. At the same time there were also property division proceedings commenced.  Some time in or around 2003, the parties resolved all of those parenting and property division issues, as well as child support issues that had emerged, and consensually entered into property settlement orders, parenting orders and a child support agreement.  Relevantly, the parenting orders provided for the four children to live with the mother and to spend alternate weekends and other special days with the father.  They did not provide for the children to spend longer periods of time during the school holidays with their father.

5. It is clear now that the terms of the child support agreement that the parties entered into were favourable to the father to the extent that they required him to pay periodic child support to the mother that was less than that which he would have been required to pay by way of an administrative assessment, if put into place by the Child Support Agency (“CSA”) at that time.  There is no dispute now that applying the administrative assessment having regard to the income that he was earning at the time would have resulted in him paying more than it was agreed by the parties in the child support agreement that he would pay.

6. The father’s case, as I understand it, is that this occurred because the terms of the property division that they otherwise entered into were more favourable to the mother than they might otherwise have been. He alleges the mother received 100 per cent of the assets of the parties, whilst he took over all of the debts that existed at the time.  I do not understand the wife to agree with that proposition and it is not a matter that I must determine in any event in these proceedings.

7. The parties have had substantial difficulties arising from their ongoing conflict over the subsequent years from 2003.  These included difficulties in co-parenting the children.  There is much dispute still today between the parents about where responsibility for this conflict falls.  Each blames the other in respect of issues that they have had with the children’s behaviour as the children have grown through their teenage years into young adulthood. Those issues have been significant, to say the least.

8. In or about 2006, the mother commenced proceedings in which she sought to have the child support agreement into which she had entered in 2003 set aside.  Primarily, she based her application on allegations that her agreement had been induced by false or fraudulent representations made by the father as to his financial position at the time.  Those proceedings went to trial in the Federal Magistrates Court (as it was then called) in 2007, and they were determined by judgment of Jarrett FM delivered in early 2009 in which his Honour acceded to the mother’s application, having found that there had been sufficient misrepresentation by the father of his financial position to justify the setting aside of the agreement.

9. That resulted in the Child Support Agency having to then issue administrative assessments of the father’s child support liability going back to the time at which the child support agreement had been entered into.  That was done.  During the period of time between 2003 and 2009 when the child support agreement was set aside and whilst it was operative, the father had indeed been meeting child support obligations to the mother in accordance with the terms of the agreement. 

10. However, that fact, of course, did not prevent conflict from emerging between them during that time or continuing between them during that time, and, indeed – as I understand the evidence – much conflict arose around the mother’s assertions that the child support payments that the father was making pursuant to that agreement were well and truly insufficient to meet the financial obligations of supporting the four children.  That was her expressed motivation for bringing the application to have the agreement set aside.

11. Of course, the issue of fresh assessments by the Child Support Agency for that entire period of time resulted in the immediate emergence of substantial arrears of child support owed by the father to the mother.  The father’s ongoing liability for child support was also being assessed by way of the administrative formula.  

12. Apparently, as I understand the evidence, the CSA on its own motion, made an application for a change of the assessment that had been made in respect of the father’s ongoing liability based on his estimated income of $34,000.  The CSA sought an assessment based on a much higher income or earning capacity being attributed to the father.

13. In 2009, on that change of assessment application, a determination was made that the father’s earning capacity was actually $150,000 a year.  As was his statutory right, the father objected to that determination. The objection was considered by a senior case officer within the CSA who dismissed it. The previous decision that the father’s income or earning capacity was $150,000 per year was upheld.  Again, as was his right, the father lodged an appeal against that decision. 

14. That appeal was heard by the SSAT in April of 2010.  The mother was a party to those proceedings, as the respondent to the father’s appeal, and, of course, the CSA was entitled to put forward material as the Child Support Registrar was also a respondent. 

15. The decision of the SSAT was delivered on 28 June 2010.  The SSAT dismissed the father’s appeal, but set aside the decision of the CSA’s case officer and substituted its own decision that for the period 26 February 2009 through to 8 March 2013 the father’s adjusted taxable income for child support assessment purposes be set at $442,000, nearly three times as much as the internal CSA processes had determined.  It is that decision the father seeks to appeal and for which he seeks an extension of the time within which to appeal, nearly three years after it was made. 

16. At or around the same time as these child support proceedings between the mother and the father were underway, the parents themselves were in substantial conflict and dispute about the parenting arrangements for the four children.  Pursuant to the 2003 orders, the children were living with the mother. The mother had some difficulties with the eldest child, J, in or around 2006, and he was sent off to live, for some time, with his maternal grandmother on the south side of Brisbane.  Otherwise, the three other children lived with their mother through that time and spent time with their father.

17. It seems, from the evidence that I have read and heard, that the school holidays of June/July 2009, were a time when the child support issues had reached a fairly significant point.  Jarrett FM’s decision had been handed down. It had set aside the child support agreement and an assessment had issued from the CSA resulting in a substantial lump sum arrears owing. The father’s income for ongoing child support purposes had been assessed at $150,000.  Notably, it was at this time that the father determined to retain the three younger children with him after a visit that they had with him in accordance with the existing 2003 orders.

18. He asserts that he did so because of physical abuse perpetrated against the children by the mother’s new partner.  I do not, of course, have to determine any factual issues in respect of that in these proceedings.  After he retained them, the mother applied for a recovery order to get the three children returned to her.  Jarrett FM heard that on 28 July 2009. On that day, his Honour dismissed the mother’s application for recovery and ordered that the three children, T, L and S, all live with the father.  His Honour ordered that the children then spend time with the mother from after school Friday to before school Monday, with the mother to collect the children from school on Friday and return the children to school on the Monday.

19. There was an issue as to his Honour’s intention in respect of the alternate weekend time with the mother, and when it was to commence.  The order states that it was to commence on Friday 31 August 2009. The 31^st August 2009 was not a Friday but the 31^St July 2009 (three days after the hearing) was.  It seems that the reference to August was likely to have been a typographical error or a mistake that was never corrected.

20. The evidence is that the mother had a great deal of emotional difficulty coping with the decision that was made by his Honour at that time and for some days and weeks was unable to talk to or see her children.  The evidence also suggests that the father immediately went about changing the children’s schools and placing them in schools closer to where he lived. That was quite a distance from where the mother was living at the time and from the schools that the children had been attending.  The mother asserted during the trial that Jarrett FM had indicated that he expected the children to continue going to the same schools. As there was no evidence in the form of a transcript before me, I am unable to make any firm determination of fact about that.

1. However, having regard to the fact that his Honour’s orders that day were only interim orders, I consider it very likely that his Honour might have indicated that he did expect the children to continue going to the same schools they were already attending. I consider this even more likely given that his Honour made an order that the mother collect and deliver the children from and to their schools. 

2. In or around the August/September school holidays, some time just thereafter, on one of the occasions that the children were visiting and spending time with the mother pursuant to his Honour’s orders, the child, T, was not returned to her father’s care.  T was, this time, withheld from the father without his consent.  It is that retention of the child T, by the mother, that is the basis of one of the father’s contravention applications.  The mother, as I have observed, asserted that she had reasonable excuse for not returning T.

3. It is agreed that a couple of weeks after T’s retention the mother took T to the father’s home and T saw her father, spoke with her father, and asked for and took with her possessions of hers that were still at the father’s home.

4. The children, L and S, however, were returned to the father pursuant to the orders. In fact, in November 2009, orders were made by consent between the parties that provided for the two boys, L and S, to continue to live with the father and spend time with the mother, and for T to continue to live with the mother and spend time with the father.  That occurred pursuant to those arrangements until the next significant event in respect of these proceedings: the filing by the father of an application initiating proceedings in April of 2010 seeking parenting orders that again provided for T to go back and live with him.

5. Around the same time, in April of 2010, the father’s application in the SSAT was heard.  In evidence before the Court is a copy of a letter that the mother received from the SSAT which is dated 28 June 2010.  It said:

   Dear Mrs [King]. 

   Your decision is enclosed. Mr [Aames’] appeal has been decided and a notice of the decision and reasons is enclosed. We have also sent a copy of this decision to the Child Support Agency and the other party today. If you are not satisfied with the tribunal’s decision, you can appeal on a question of law only to a court with jurisdiction under the Child Support Registration and Collection Act 1988, such as the Federal Magistrates Court. You should lodge any appeal within 28 days of being notified of the Tribunal’s decision. The CSA must accept the Tribunal’s decision unless it lodges an appeal. If you have any questions about when the decision will come into effect, please contact your local CSA office.

   Your sincerely.

   Signed by the state business manager of the SSAT.

6. The father was shown this letter by the mother in the witness box during the trial and, when asked, he indicated that he recalled receiving the decision under cover of a similar letter from the SSAT.  He asserted that he could not remember reading the content of the letter itself, saying he was more interested in the outcome of the appeal and reading the decision that the letter attached. 

7. The proceedings commenced by the father and the mother in 2010 in the Federal Magistrates Court ultimately found their way into this Court. There was also an Independent Children’s Lawyer, namely, Mr Trent Waller, who was appointed as a party in the parenting proceedings.  Family report interviews were undertaken and reports prepared.  A family report interview took place on 19 January 2011.  I do not know when the report actually issued.  However, there is evidence that the mother had been negotiating with the father in respect of the child, S, for some period commencing some time in 2010.  She was attempting to negotiate with the father for him to agree to the child, S, returning to live principally with her.  In 2010, he was in his final year of primary school and was about to embark on his high school education.

8. The child S was attending E State School whilst in his father’s care, a school in the vicinity of his father’s home.  The mother asserts in her evidence that the child was very keen to return to live with her, unhappy living at his father’s, and wanting to start high school at P College, a private Catholic School in the vicinity of where the mother lived.  That school was the high school at which his brother, J, had attended.  The father had, however, enrolled him to commence high school at another high school closer to his  residence.

9. The matter came to a head at the end of the school holidays in 2010/201. Those school holidays fell between the end of primary school and the beginning of high school for S.  S did not return to live with his father at the end of the time that he spent with his mother during those school holidays.  In contrast, his brother, L, did return to live with his father at the end of those holidays. 

10. It is that non-return of S to his father’s care that is the basis of the second count of alleged contravention made by the father against the mother in these proceedings.  The mother asserts that she had reasonable excuse for not returning the child because he was most adamant that he did not wish to return to live with his father and that she could not make him.  I shall return to that later. 

11. The proceedings continued through the courts and eventually found their way into my list.  They were first before me on an interim application on 21 May 2012.  It emerged at that time that the father had voluntarily entered into bankruptcy.  The official trustee in bankruptcy was served and joined in the proceedings. Later, it was discovered that the official trustee was not the trustee appointed but that two other privately employed accountants had been appointed as trustees. They were inserted as the second respondents to the proceedings in lieu of the official trustee.

12. The matter then progressed through numerous directions and compliance hearings, ultimately to be listed before me for hearing on the two days of March 2013.  The mother filed an amended initiating application on 27 February 2013 in which she set out the child support orders that she was seeking at the hearing.  I shall set those out.  The mother seeks the following:

    (1)That a declaration order be made for the amount of $95,038.45, being arrears of child support for the periods of 24 September 2003 to 18 November 2007, and 24 November 2008 to 3 April 2009;

    (2)That the father pay to the mother to an account nominated by her within 14 days of the date of these orders $95,038.45 being the total of the following amounts:

    (a)the sum of money of $1080.26, being arrears of child support for the period 24 September 2003 to 18 November 2007;  and,

    (b)the sum of $3958.19 being arrears of child support for the period of 24 November 2008 to 3 April 2009.

    (3)That the applicant and the first respondent have liberty to apply to the Court as to the implementation and/or further enforcement of these orders upon the giving of seven days written notice to the other party.

13. The child support application of the mother is dependent upon the outcome reached in respect of the application by the father for an extension of the time within which he could file an appeal, and if that is granted, the appeal itself.  Accordingly, I shall turn firstly to determine those particular matters.

The application for an extension of time to appeal the SSAT’s decision

1. At the trial before me on 26 and 27 March, the child support registrar appeared represented by Mr Matt Black of counsel.  The second respondents, the two accountants who were appointed trustees in the bankruptcy of the father, did not appear.  They indicated to the Court and to the other parties that they had no intention of appearing once the mother made it clear that the only orders that she would be seeking from the Court were orders declaring the amount of child support debt that the father owed to her.  They indicated to the Court and the other parties that in those circumstances they would simply abide the orders of the Court and did not intend to appear.

2. The respondent father was directed by me on 13 September 2012 to file an application for an extension of the time within which to file his appeal against the decision of the SSAT; to file a draft notice of appeal for consideration in the event that an extension of time was given; to file written submissions in support of his application for an extension of the time within which to file his appeal; and to file written submissions in support of his appeal for consideration in the event that the extension of time was given.  He was directed to do all of this by 25 January 2013.  As he did not comply with all those directions, he later brought an application for the extension of the time within which he was to file those documents.

3. That application was heard by me on 25 February 2013. The father was given the extension of time that he sought and his application for an extension of time in which to file an appeal from the SSAT’s decision and his actual draft notice of appeal were filed by leave on 25 February 2013. 

4. The provisions of Division 4.2.5 of the Family Law Rules 2004 (Cth) relate to matters heard in this Court in respect of child support and child maintenance. Before I turn to those, I shall refer to some provisions of the Child Support (Registration and Collection) Act 1988 (Cth). In Part VIII Division 3 of that particular statute which is headed “Appeals and References of Questions of Law from SSAT to Courts”, section 110B says:

   A party to a proceeding before the SSAT under Part VIIIA may appeal to the Court having jurisdiction under this Act, on a question of law, from any decision of the SSAT in that proceeding.

5. Section 110C, headed “Time Limits For Instituting Appeals”, says:

   (1)      An appeal by a person under this Division must be instituted in a court:

   (a)      within:

   (i)       the time prescribed by the applicable Rules of Court;  or

   (ii)such further time as is allowed under the applicable Rules  Court;  and

   (b)in such manner as is prescribed by the applicable Rules of Court.

6. Section 110C(2) says:

   (2)Without limiting the grounds on which further time may be allowed under subparagraph (1)(a)(ii), further time may, in the interests of justice, be allowed on the ground that:

   (a)the SSAT made an oral statement as to the reasons for the decision under paragraph 103X(3)(a);  and

   (b)the SSAT later gave a written statement of reasons for the decision under paragraph 103X(3)(b) or subsection 103X(5) ;  and

   (c)the written statement contains reasons that were not mentioned in the oral statement.

7. I have no basis for considering in this particular case that 110C(2) applies. Therefore, my attention in respect of the time limits for instituting appeals must, pursuant to paragraph 110C(1) of the Child Support (Registration and Collection) Act focus on the applicable rules of court. So I turn back to Chapter 4, Part 4.2, Division 4.2.5 of the Family Law Rules 2004.

8. Rule 4.16 provides for:

   (b)an appeal under the Registration Act, other than an appeal from a court.

9. Rule 4.17 says that an application under the Part must be made in accordance with an initiating application in Family Law.  The father’s application in these proceedings has been made in that form.

10. Rule 4.21 is headed “Appeals on Questions of Law”.  This is the relevant rule in respect of the father’s application and his appeal.  4.21(1) says:

    (1)An appeal on a question of law from the Social Security Appeals Tribunal may be made by filing a Notice of Appeal (Child Support).

    (2)A person must file with a Notice of Appeal (Child Support) a copy of the Statement of Reasons of the Social Security Appeals Tribunal.

11. The father has filed a notice of appeal and he has filed an affidavit to which he has attached a copy of the statement of reasons of the SSAT handed down on 28 June 2010.

12. Rule 4.22, headed “Time Limit for Appeals on Questions of Law”, says this:

    A party to a proceeding before the Social Security Appeals Tribunal under Part VIIA of the Registration Act may file an appeal, on a question of law, from any decision of the Social Security Appeals Tribunal in that proceeding, within 28 days of the publication of the Statement of Reasons.

13. Twenty-eight days from the date of the publication of the reasons of the SSAT, which was 28 June 2010, would make the expiration of the time limit within which the father had to appeal on a question of law somewhere around 26 July 2010.  He ultimately filed his notice of appeal along with the application to extend the time within which to appeal, as I have said, on 25 February 2013, more than two years and six months after the expiration of the time limit.

14. In addition to this, Rule 4.23 of the Family Law Rules requires that the persons to be served with an application or a notice of appeal under this part are each of the respondents, relevantly including the child support registrar. The parties requiring service are as follows: the mother, who was aware of his application and served with it; the Child Support Registrar, being a party to the proceedings already; and in respect of appeals from the Social Security Appeals Tribunal, the Executive Director of the SSAT; and any other parties to the appeal. I am not satisfied that the father served the Executive Director of the SSAT but, in the circumstances, I do not consider that it is an impediment to the determination of his application and I consider that it is a requirement of the rules that I will dispense with in the circumstances so as to be able to determine the application.

15. Nothing is said in these Rules about an extension of the time within which one must file an appeal. However, Rule 1.12 of the Family Law Rules headed “Court May Dispense With Rules”, is a rule that says this Court may dispense with compliance with any of these rules at any time before or after the occasion for compliance arises.  That means, quite clearly, that I have the power to dispense with the requirement that the notice of appeal had to be filed within 28 days and the power to grant an extension of the time for as long as the father seeks.

16. Rule 1.12, section 3, says that in considering whether to make an order under this rule the Court may consider:

    (a)       the main purpose of these Rules (see rule 1.04) ; 
    (b)      the administration of justice; 
    (c)      whether the application has been promptly made; 
    (d)      whether non-compliance was intentional;  and

    (e)the effect that granting relief would have on each party and parties to other cases in the Court.

17. In this respect, I was assisted by written submissions by Mr Black, counsel for the child support registrar.  In those written submissions, Mr Black referred me to the well-known decision of McHugh J in Gallo v Dawson (1990) 93 ALR 479. That case is as well-known for the quote that is often referred to when litigants appear unrepresented by lawyers, as it is for its enunciation of principle. His Honour said in that case that “lack of legal knowledge is a misfortune, not a privilege”.

18. In that case, McHugh J was considering an application by an unrepresented party in the High Court for an extension of time within which to file a notice of appeal against an order that dismissed an action brought in the High Court in its original jurisdiction.  McHugh J observed that the discretion to extend time is given to the Court for the sole purpose of enabling the Court to do justice between the parties.

19. Mr Black submitted that certain factors are of particular relevance when considering whether to exercise the discretion in this present case.   They were:

    ·the extent of the delay;

    ·the explanation offered for the delay;

    ·the merits of the proposed appeal;

    ·the questions of prejudice and fairness. 

20. Those are, in my view, similar to the matters set out in Rule 1.12(3) of the Family Law Rules. They are the same sort of considerations referred to by McHugh J in Gallo v Dawson[1]. McHugh J said that the discretion could only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.  His Honour went on to say that in order to determine whether the rules will work an injustice it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time. 

    [1] (1990) 93 ALR 479.

21. Under the heading “Extent of the Delay”, Mr Black observes that the SSAT decision was made on 28 June 2010, and that the father’s application for an extension of time was filed on 25 February 2013, over two and a half years outside of time

22. In this regard, he referred to a decision of Bromberg J of the Federal Court in Gabor v Secretary, Department of Education, Employment and Workplace Relations [2010] FCA 706, where an applicant for an extension of time had delayed some six years before seeking the extension of time. In that case, although Bromberg J found that the applicant had good prospects of success on the appeal if leave was granted, his Honour nevertheless found that the six year delay in seeking the extension of time was “an insurmountable barrier” and that the “interests of justice in the finality of litigation is a powerful impediment which itself would deny the applicant’s success.”

23. In this particular case, the fact that the father has taken over two and a half years from the time within which his appeal rights were required to be exercised to actually appeal, is in itself a significant factor weighing against the grant of an extension of time. The SSAT process of reviewing CSA decisions on their merits was set up to provide a mechanism of review that is fair, just, economical, informal and quick. See s 88(i) of the Child Support (Registration and Collection) Act.

24. Mr Black submitted that objective would be undermined if parties were too readily permitted to appeal SSAT decisions after excessive delay.  I accept that two and a half years of delay is a very long time and it is a significant factor for me to consider at this point in the process.

25. More important, however, I consider, is the issue of the explanation provided for the delay.  In this regard, the evidence satisfied me in respect of the following matters:

    (1)The father received, along with his written copy of the decision of the SSAT, a covering letter which advised him of his appeal rights and the fact that he had 28 days from the date of the decision to lodge an appeal against the decision in respect to the question of law.

    (2)That the father, having effectively lost his appeal to the SSAT in dramatic fashion – getting a result that assessed his taxable income at three times that which the internal CSA review process had set it at – would have been acutely concerned about the impact of that decision upon him and, therefore, acutely concerned about his rights of appeal of that decision.

    (3)That the father had previously been represented by lawyers in his family law related disputes, including the parenting, property and child support matters, and was, indeed, a man well and truly aware of his right to obtain legal advice in respect of matters of importance such as rights and prospects of appeal against unfavourable decisions.

    (4)That the father had, on his own admission, indeed sought and obtained legal advice specifically in respect of his rights and prospects of appeal against the SSAT’s decision from two very senior, experienced family lawyers.

26. The father’s evidence in respect of the explanation for the delay at least in his affidavits was, as I consider the matter, very scant.  During the trial, the father was keen to inform the Court that he was extremely busy during the time that has expired since the handing down of the SSATs decision.  He attributed this to things such as searching for his children on the streets of Brisbane, trying to maintain his business, working, and answering to a significant amount of litigation that brought him to court on numerous occasions in that time.  With respect to the father, as I said to him during the course of the trial, that was as good as his explanation for the delay got.

1. In addition, the father made it clear to the Court as far back as September of 2012 that he intended filing a notice of appeal and seeking an extension of time within which to file his appeal, and, as I have said, directions were made requiring him to do that by a certain time.  Even in the face of those directions having been made, the father did not comply.  He had to come back before the Court in late February of 2013 to get a further extension of the requirements imposed upon him by those directions to allow him the leave to rely on his application and his appeal filed on 25 February 2013.  The explanation he gave for that delay and non-compliance with the original directions was that he was suffering from some stress and depression brought on by these proceedings.

2. Counsel for the Child Support Registrar submitted that the father’s lack of legal representation or legal knowledge is of little particular significance in respect of consideration of the explanation for the delay. He referred to a decision of the Federal Court in Ejueyitsi v Bond University [2012] FCA 1514, per Logan J, in support of that. In that decision, Logan J said:

   I accept that there may be facts and circumstances in relation to a litigant in person which may go to an assessment of promptness but, in my judgment, they will only operate close to the margins.  An opponent of a litigant in person is entitled to assume finality without expecting excessive indulgence to be extended to the litigant in person.

3. In all the circumstances, I do not consider that the father has given an acceptable explanation for the delay in seeking to file an appeal against the SSAT’s decision.  I am satisfied that he was, indeed, aware of his right to appeal when he received the decision, even though he said he was not.  I am satisfied that he sought and obtained legal advice in respect of that right and his prospects.

4. It cannot go without observation that it was only during the course of proceedings where the mother was seeking declarations as to the child support owed by the father that the father determined he would belatedly seek to appeal the decision of the SSAT.

5. Mr Black submitted that a further matter to consider in respect to the exercise of the discretion as to whether or not to extend the time, is the merits of the father’s proposed appeal.  An appeal against the SSAT’s decision is as a matter of statutory provision limited to a “question of law”.  In this particular case, at the beginning of the trial, the respondent father was asked some questions in respect of his appeal and the question of law which he considered the appeal seeks to raise.  I asked him those questions because I did not consider that he had in any significantly useful way met the obligation I had previously imposed upon him to file a notice of appeal that set out the grounds of appeal and written submissions in support of that appeal for consideration in the event that an extension of time was given.

6. As best as one could discern from the draft notice of appeal that the father did file, it appeared that he was alleging mistakes of fact made in the findings of the SSAT.    When asked about the question of law he was seeking to appeal on, the father submitted to the Court that the error of law the SSAT had made was “not properly investigating the Child Support Agency’s original decision”.

7. In his written submissions, Mr Black referred to a decision of the Full Court of the Federal Court in which the nature of an appeal on a question of law was considered, namely, Birdseye v Australian Securities and Investments Commission (2003) 76 ALD 321. That case, he submitted, set out the following principles:

   a)The question of law is not merely a qualifying condition to ground the appeal, it is the subject matter of the appeal itself;

   b)The question of law raised by the appeal should be stated with precision as a pure question of law; 

   c)To merely assert that a tribunal has erred in law in making a particular finding does not amount to a question of law;

   d)A question that simply invites an inquiry into whether the tribunal has committed an error of law in its decision is not a question of law;

   e)The grounds given in support of an appeal should demonstrate how the question of law justifies the orders sought.

8. Much of the evidence led by the father in support of his application for an extension of time was evidence going to the asserted mistakes in findings of fact by the SSAT.  The difficulty for the father is that with that focus he treads over the line of what is normally permissible in respect of an appeal that is limited to a question of law. 

9. Mr Black also referred to Servos v Repatriation Commission (1995) 56 FCR 377, and pointed out that Spender J of the Federal Court considered the scope of an appeal on a question of law against a decision of the Administrative Appeals Tribunal. In that decision, his Honour observed that the policy of the legislation was to make tribunal decisions “final” on questions of fact, and that the legislation did “not permit the reception of further evidence which was not before the” tribunal.

10. That decision was followed by a Federal Magistrate in the decision of Schmidt v Geller (SSAT Appeal) [2012] FMCAfam 735, at paragraph 46. Further, the High Court has determined that there is no error of law simply in making a wrong finding of fact: Waterford v The Commonwealth (1987) 163 CLR 54 at 77. This is, in essence, the major hurdle for the father in this case. He asserts that the SSAT was wrong in respect of facts. I am just not in a position to determine that even if the SSAT was wrong in respect of findings of fact, that an error of law has occurred.

11. It is clear to me on a reading of the reasons for decision of the SSAT and the material that the father puts before me in support of his application that it may indeed be the case (although I by no means say that I am satisfied to the extent of making findings to this effect) that the SSAT made a mistake in respect of some of the facts that it had to determine.  It may be that one of those mistakes has led to the decision ultimately being that the father’s income was assessed as being higher than it might otherwise have been if the alleged mistake had not been made.

12. However, even if I was to give the husband an extension of time within which to appeal, if satisfied in respect of all other matters, I am not satisfied or convinced that the father would succeed on an appeal as to a question of a law alone in all the circumstances that he asserts.  Indeed, I am quite satisfied that his prospects of success on appeal would not be good. 

13. I do not consider it necessary to go on to consider Mr Black’s final submission in respect of prejudice and fairness.

14. In all the circumstances, being satisfied that the father has not provided any adequate explanation for the substantial delay of over two and a half years since the decision was made, and being satisfied that the father has not demonstrated that he has a case on appeal that is likely to lead to success, I determine that no extension of time within which to file an appeal from the SSAT’s decision should be granted and the father’s application in that respect is dismissed. 

What of the mother’s application in respect of child support?

1. I turn then to the mother’s application for a declaration as to the father’s child support liability.  The mother put into evidence an affidavit, filed on 1 February 2013, to which is attached a schedule marked exhibit K or annexure KSA2.  The schedule is headed “Summary of Child Support Period from 31 August 2001 to 31 January 2013”.  The mother’s evidence is that she prepared that schedule using the notices of assessment issued by the Child Support Agency and also that she relies upon a letter from the Child Support Agency to her dated 29 January 2013.  This letter referred to the assessments and calculations of child support in respect of each of the relevant periods based on the assessments undertaken by a person in the employ of the Child Support Agency, who is a personalised services case manager with the Child Support Agency. 

2. The copies of the assessments that the mother relied upon were admitted into evidence and marked exhibit 2.  A copy of the letter from the CSA to the mother of 29 January 2013 was admitted into evidence and market exhibit 1.  The mother has carefully set out in her schedule in a number of rows and columns each respective child support period for which a separate assessment has been issued by the agency from the period 31 August 2001 through to 29 January 2013.  Her schedule sets out that clearly there were 10 assessments issued over that period. 

3. Some of these of course, it must be remembered, were issued retrospectively once the determination of Jarrett FM was made in 2009 to set aside the 2003 child support agreement.  In the second column of her schedule, the mother sets out the actual number of days in each of the assessment periods.  In the third column she sets out whether it was to be in respect of each of those periods, and whether the amount was to be collected by the CSA or a private collection by her on her option.  It is clear that in respect of two periods, private collection was the option and those periods were for:

   (i)the period 24 September 2003 through to 18 November 2007 - that is the period during which the child support agreement was originally operative but then for which assessments had to be issued retrospectively once the child support agreement was set aside. 

   (ii)the period between 24 November 2008 and 3 April 2009. 

4. It is only in respect of those two periods that the mother says amounts are still owed by the father to her. 

5. The fourth column sets out the amount that was actually paid by the father to the mother privately in those periods based on the child support agreement that was still in existence during that time.

6. The mother said that in the first period between 24 September 2003 and 18 November 2007, the father paid her $52,439.30.  She says that in the second period the father paid her $5421.41.

7. I will not refer to the next column because it does not go to the two periods in respect of which the wife is seeking declarations. 

8. The next column is headed ‘New Child Support Assessment’. In respect of the two relevant periods, it sets out the new assessments made by the CSA once the child support agreement was set aside and having regard to the decision of the SSAT in 2010. 

9. In respect of the first period, the total amount assessed by the CSA as payable by the father for the period 24 September 2003 to 18 November 2007 is $143,519.56.  Most of that, of course, was assessed using the administrative assessment process that applied during that time, based on the actual taxable income that the father reported to the Tax Office during those years.  When one looks at the figures that were re-assessed or assessed by the CSA once the private child support agreement was set aside, one can see to what extent the father actually gained benefit from the terms of the original child support agreement. 

10. The total figure actually assessed was $143,519.56. The difference between that amount and the amount the mother says the father actually paid is an amount of $91,080.26.  In respect of the second period, that is, 24 November 2008 to 3 April 2009, the amount the father paid was $5421.41 according to the mother.  The amount the CSA assessed, according to the mother in her schedule, was $9379.60. That created a difference of $3,958.19.  During the course of the mother’s evidence, it became clear that the figure she inserted in the second of those periods, as being the amount assessed by the agency of $9379.60, was different from the amount that the agency told her was the assessment in the letter from Mr Y that is exhibit 1.  In that letter on the last page, Mr Y said that the total entitlement that is currently registered as privately collectable for the period 24 November 2008 to 3 April 2009 is $7,316.79.  When asked about it by Mr Black for the Child Support Registrar, the mother could not explain exactly where her figure of $9,379.60 came from.  Accordingly, she accepted the figure presented by the CSA of $7,316.79 as being the correct figure and said she that she was prepared to accept that and adjust her figures accordingly. 

11. So that makes the difference between the amount assessed by the CSA as owing by the father during that period, and the amount the mother said she has actually received from the father during that period, $1,895.38. That makes the total amount that the mother says the father owes to be $92,975.64. 

12. Now, having seen that evidence, I specifically asked the father at one point during the trial as to what issue he took with the mother’s case in that regard.  I did so because it is fundamentally clear to me on the evidence that the father presented that he makes no challenge to the mother’s case that she received $52,439.30 from him by way of private payments between 24 September 2003 and 18 November 2007.  Further, the father makes no case that the mother received more than $5,421.41 during the period of 24 November 2008 to 3 April 2009.  Indeed, he made no reference to those particular figures whatsoever.  When taken to the schedule, that was annexure KSA2 to the mother’s January 2013 affidavit, the father focused his attention on periods of time when he says that the children were in his care and where he asserts the mother did not inform the CSA of a change in care, to make the general assertion that these assessments are unreliable. 

13. In particular, when asked which periods he was talking about, he could only take the Court to the period in the row of 21 July 2009 to 6 October 2009, a period during which he says that the children were in different levels of care than those asserted by the mother.  The mother’s answer to that in submissions was simple.  She said that that period particularly is not a period during which she is suggesting that there are amounts unpaid and still owing.  That is clearly correct from her schedule.  As I have said, quite clearly, she only asserts that there are amounts owing as unpaid pursuant to the existing assessments in two periods, namely, from 24 September 2003 till 18 November 2007, and the second one of 24 November 2008 to 3 April 2009. 

14. The father made no specific reference, when asked, to either of those periods.  Indeed, the mother’s schedule goes further than what I have said earlier.  She has two final columns on the schedule headed “Father’s Care Percentage” and “Mother’s Care Percentage”.  In respect of the relevant years, she shows that she has calculated that the father had four children in his care for 13 per cent of time up till 1 January 2005, and then three children in his care from that time on for 13 per cent of the time.  She shows that she has calculated that she had the four children in her care: 100 per cent in respect of J, who did not spend time with his father from January 2005 for some four years on the evidence; and the other three children for 87 per cent of the time during the second period during which an arrears arises. 

15. There were also similar type calculations done in respect of the children, including crediting the father with 100 per cent care of J from 5 January 2009, a time when J went back to his care for some time.  The mother in her evidence swore that she informed the CSA each time there was a relevant change in care arrangements in any event, and that the assessments issued have reflected all of her information given to the agency. 

16. Although I must I say I was not totally convinced that the mother was truthful in respect of all of her evidence given during the course of the trial, as evidenced by her telling the Court initially that she was unemployed when it ultimately came out that she is now self-employed, having recently acquired her own business,  I am nevertheless satisfied that the schedule presented by the mother as amended by her concession in respect of the second of the two relevant periods reflects the correct position.  The father’s complaints about the timing of care of the children were directed more specifically at later periods, periods for which no amount of arrears is said to be owed. 

17. I am quite satisfied that the mother has made out her case in respect of arrears of child support.  Mr Black, in my view, quite correctly submitted that the mother is entitled to seek the declaration in respect of outstanding child support liability arising from the periods pleaded in her amended initiating application, and that the quantum of the liability is to be established by reference to the relevant notices of assessment and any evidence of payments made towards the liability. 

18. That, as I said, is already before the Court and I am satisfied with respect to it: satisfied sufficiently to declare that the father is in debt to the mother in respect of arrears of child support in the sum of $91,080.26 for the child support periods from 24 September 2003 to 18 November 2007, and in the sum of $1,895.38 for the child support period 24 November 2008 to 3 April 2009. This is a total of $92,975.64. 

19. The mother also seeks an order that the father pay to the mother those amounts within 14 days.  The circumstances of the case are that the father is an undischarged bankrupt having gone into bankruptcy on his own application sometime around April/May last year.  The moment that he was made a bankrupt, all of his property (save for some very limited exceptions in respect of personal property provided for in the Bankruptcy Act 1966 (Cth)) vested in his trustee in bankruptcy. For a time after his bankruptcy, he was employed, working for the construction business now said to be owned and controlled by his brother.

20. At the time of the trial, the father was said to be unemployed and in receipt of a Commonwealth pension.  Any property or cash assets that he owned at the time of his bankruptcy, of course, are vested in his trustee in bankruptcy.  He currently owns no property and has no cash assets from which he could pay the child support amount that I have now determined he owes the mother in these proceedings.  However, a child support liability is one liability that is not extinguished by the bankruptcy.  The mother who is owed child support does not have to prove the debt in bankruptcy.  The liability to pay the child support will survive the father’s bankruptcy and continue to exist when he is discharged from that bankruptcy, whenever that might be. 

21. Ultimately, if the father regains employment or acquires further property, then the mother will have the right to proceed against the father to seek to have the child support debt that I have declared, paid to her.  In all of these circumstances, I consider it futile at this point in time to make a further order as sought by the mother, that the father pay all of those arrears to her within 14 days, and I will not do so.  The mother, of course, will be at liberty to make a further enforcement application in the future. 

What of the father’s contravention applications?

1. I turn now to the contravention applications.  As I have said, in respect of each of the alleged contraventions, the mother has responded with the assertion that on each occasion she had reasonable excuse for non-compliance with the order. 

2. In respect of the first count, the mother gave evidence that the child, T, who was fourteen and a half years old at the time in September 2009, did not wish to return to live with her father as required by the orders.  The mother’s evidence was that T was absolutely determined not to return to live with her father.  The mother’s evidence was that Jarrett FM’s orders in July were prefaced on the children continuing at the same schools; that T was attending M School when she was ordered to live at her father’s place; and that shortly thereafter the father changed T’s school without T’s approval and against the mother’s wishes;   and that when T came and spent time with the mother during a weekend in September 2009, she simply refused to return to her father’s, wanting desperately to go back to M School. 

1. The mother says that she did all she could to encourage T to go back to her father’s and, indeed, even took T back to her father’s place a couple of weeks after, at which point T, if she had wanted to, could have stayed with her father. 

2. The father disputed the mother’s assertions and gave evidence that he believed that the child did not have a desire to stay living with her mother and to return to M School, asserting that she was not acting of her own volition in determining to stay with her mother.  He effectively submitted that the mother thereby could not rely on, or had not established, the defence of reasonable excuse in the circumstances. 

3. I turn to consider the meaning of “reasonable excuse”. Division 13A of Part VII of the Family Law Act is the division headed “Consequences of Failure to Comply with Orders and Other Obligations that Affect Children”.  Section 70NAE is headed “The Meaning of Reasonable Excuse for Contravening an Order”.  Subsection (1) provides:  

   The circumstance in which a person may be taken to have had, for the purposes of this division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7). 

4. The only possibly relevant one of those subsections in this case could be the provision provided for in section 70NAE(4) which is that: 

   A person is taken to have had a reasonable excuse for contravening an order to the extent to which it deals with whom a child is to live with in a way that resulted in the child not living with the person in whose favour the order was made if:  the respondent believed on the reasonable grounds that the actions constituting the contravention were necessary to protect the health or safety of a person (including the respondent or the child);  and the period during which, because of the contravention, the child did not live with the person in whose favour the order was made was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a). 

5. It may be that the mother’s submissions in support of her argument that she had reasonable excuse could be interpreted as including a submission that the evidence establishes that she acted in a way to protect the health and safety of her daughter. On the evidence, it could only be the emotional health of her daughter that she could assert she was acting to protect.  I am not minded to the view that the mother has made out a defence pursuant to that subsection.  However, the provisions of section 70NAE say that the circumstances in which a person may be taken to have had reasonable excuse for contravening the order “include but are not limited to” the circumstances set out in the subsections there listed. 

6. That means that I can consider the evidence and determine myself whether I accept, even if one of those subsections is not made out, that the circumstances otherwise present the mother as having a reasonable excuse.  In these circumstances, I have regard particularly to the fact that the child, T, was fourteen and a half years of age at the time.  I have regard particularly to the evidence in this case that this child, T, was a child who was quite precocious and headstrong, particularly in respect to the decisions she made for herself and about herself at or around this stage of her life. 

7. The evidence shows that this child was prepared on a number of occasions to take matters into her own hands regardless of directions made by adults in her life, even to the extent of leaving her home and absconding from the immediate care of the adults who were charged with the responsibility of caring for her at the time, including her mother and her step-grandparents.  On the evidence, I accept that she clearly wanted to go to the same school that she had been attending prior to the decision of Jarrett FM.  I accept that she was clearly upset about the change of that school unilaterally made by her father.  I accept the evidence of the mother that she made it absolutely clear to her mother that she wanted to remain living with the mother and to go back to that school. 

8. I am satisfied that the father accepts that the child was taken back to his place a couple of weeks thereafter and that she spoke to him and asked for some of her possessions. I accept that the child was in a position where she absolutely could have stayed with the father or, at least, have indicated to him that she wanted to stay with him if they were genuinely her wishes.  I am quite satisfied that the father would have utilised the opportunity that presented itself to him then to speak with her and attempt to persuade her to live with him, having regard to the orders that he had in his favour.  I reject the evidence that he gave that he did not do that on that occasion. 

9. Accordingly, I am quite satisfied that the father was aware of and knew that the child, T, at that particular time, did not want to continue living with him and had made the decision herself to stay living with her mother.  Only several weeks thereafter, the father consented, having already applied to the Court for an order that T be returned to him, to parenting orders that allowed her to live with her mother.  I reject his evidence that he was made to consent to those orders.  In respect of the first count of the alleged contravention by the mother, I find that the mother on the balance of probabilities makes out her defence that she had reasonable excuse for not returning the child to live with the father at that time. 

10. I refer now to the second count of the contravention, as alleged by the father, to have been made by the mother in respect of the children.  The second count relates to the child, S, and is alleged to have occurred at the end of the holiday period in the 2010/2011 summer school holidays.  It allegedly occurred when the child, S, and his brother, L, spent time with their mother pursuant to orders at that time that had been made by Principal Registrar Filippello in November 2009 with the consent of the parties. 

11. Those orders provided for the children, L and S, to live with their father.  The father says that S was not returned to him at the end of the summer holiday time he spent with his mother, and that the mother thereby contravened the said order.  The mother conceded that she did not return the child, S, to the father at the end of those holidays.  She asserted that she had, like with T before, a reasonable excuse for not sending S back, and that such reasonable excuse was centred on the fact that S refused to return and could not be made to return. 

12. The child, S, was born in 1998 and, therefore, at this particular time, was almost 13 years of age.  The mother put into evidence some email communication between her and the father in respect of this particular issue of S and his return.  Those documents are exhibit 3 in the proceedings.  They begin with an email that the mother sent to the father’s solicitors in October 2010 with a copy to the Independent Children’s Lawyer.  More relevantly though, the emails consist of an exchange of emails in the latter part of January 2011, just prior to the time that S was not returned. 

13. It is clear that the mother was telling the father that S had been requesting to return to her care since July 2009, and that she was wanting S to be returned to her care with a view to him starting his first year at high school at P College where he had been enrolled for several years but was no longer enrolled at that stage.  It is also clear that the father made it absolutely clear to the mother that he expected S to return to his care.  The mother gave evidence to the effect that when the father came to collect S and L at the end of the holiday period with her, that whilst L went out to the car and went with his father to go back to his father’s home, S refused and could not be persuaded to go with his father. 

14. The father from my memory gave no evidence about what happened on that day, so that evidence is not refuted or challenged.  The father did, however, in affidavit filed on 25 January 2013 depose to some relevant facts.  In particular, he gives some evidence about S relating to this time.  He deposed to the fact that before Christmas of 2010 whilst S was in his care and attending the E State School, on an excursion to the Sunshine Coast, S and a few of his school friends got into trouble when they were caught stealing some soft drinks from a surf club by one of their teachers. 

15. The father goes into some detail about some issues he took up with the school Principal at the school that S was attending, in respect of the way in which the school Principal proposed disciplining S and the other boys involved in the theft. The father thought the proposed discipline was unfair and unconscionable.  The father accepted that S had told him that he did not want to go to B High School, which is the high school to which the father intended to send him when he commenced high school in 2011. 

16. He says that the reason S gave was because some of the other students that were involved in the stealing event were going to go to that school and S was not happy about that.  The father says, not unreasonably, that he advised the boy that he had to accept responsibility for his own actions, and that he was reaching an age where he had to make decisions based on acceptance of responsibility rather than just avoiding them as he would be doing if he simply chose not to go to B High School because he did not want to be around these other boys. 

17. He then deposes to something quite interesting and in my view, relevant to the determination of this issue.  He says that after the mother did not return S to him at the end of the holiday period, he went to the school that S was enrolled at and attending in the beginning of the school year, namely, R High School.  The mother had lost the place at P College that S otherwise had and consequently S was enrolled by the mother at R High School.  The father says that he went to the school to retrieve his son. 

18. He went to the school not long after phoning the school and asking for a meeting with its Principal.  He says that when he arrived at the school, he went to see the Principal who told him that he had to call the mother to tell him he was there and also that he had to call the police to advise them as to what was going on.  The father said that he told the Principal that he was okay with that because he had court orders in his favour in respect of the child, S, and that he had those with him.  That the father said that to the Principal, I do not doubt.  He says that after some time, S was brought to a room adjacent to the Principal’s office and officers of the Child Protection and Investigation Unit in the Queensland Police Service arrived to talk with him and with S. 

19. He says that whilst he was in the interview with one of the police officers that the mother arrived and removed S from the school. Significantly, the father says that the mother did that with the help of the CPIU officers after he had already shown the CPIU officers the orders of Jarrett FM, being the July 2009 orders that said the child was to live with him.  He asserts that what the police did in allowing the mother to take the child with her in the face of those orders suggests that they considered that they did not have to abide by the orders of the Court.  In my view, those facts that are deposed to by the father, namely that the school and the police were aware of the Court order in the father’s favour but nevertheless permitted the boy to go with the mother, are quite telling. 

20. I am quite satisfied in those circumstances that the police and the administrative authorities at the school, including the Principal, would have only permitted the child to go with the mother, in the face of the orders, if that indeed was the expressed determined wish of the boy who was almost 13 years old.  I am also quite satisfied, given the fact that the father attended the boy’s school, that the boy would have gone with his father if that was what he wanted to do. Those circumstances, in my view, certainly corroborate the evidence of the mother that the boy most definitely did not want to return to live with his father and could not be made to do so by his mother. 

21. Further to that, the father tells the Court in his evidence that the boy has not spent any time with him since this event of 2011, which was over two years ago.  The boy now is 15 years of age.  I am quite satisfied that all of those facts support a finding that the child most definitely, as an almost 13 year old youth, made up his own mind about not returning to live with his father at the start of 2011 and could not be made to do so by his mother.  Those circumstances persuade me to accept on the balance of probabilities that the mother has made out her defence of reasonable excuse for not complying with the orders, as they were at that time. 

22. Having determined that the mother has made out her defence of reasonable excuse in respect of both alleged contraventions, I am left simply to dismiss the father’s contravention applications. 

What of the father’s parenting orders application?

1. I turn then finally to the father’s parenting orders application.  As I already observed at the commencement of these reasons, final orders resolving the father’s parenting proceedings were in fact made by consent early last year.  However, the father reactivated the proceedings for a parenting order during the course of the preparation of the child support proceedings for trial, by bringing a fresh application. 

2. I do understand that the mother opposed him doing that, but in saying that, I acknowledge that she never really articulated a serious case against him being allowed to re-agitate parenting proceedings to the limited extent that he did.  In the end, as I said, the only order, or orders, that the father seeks are orders that the child, S, be required to attend counselling with an independent expert with a view to reconciling his relationship with his father. 

3. Initially, the father proposed that be with Mr D.  But acknowledging and accepting that Mr D’s office is somewhere in or around Woolloongabba, the father ultimately did not press that particular application. Instead, he sought orders that such counselling aimed at reconciling the relationship between S and him, take place with an independent expert in the F area which is closer to his home and not too far from the mother’s residence where she lives with S.  In addition, the father proposed that the Court make orders that the mother pay for that counselling. 

4. In respect of that last part of the application, it became clear during the course of oral submissions, that the father’s proposal that the mother pay for it was effectively based on two reasons; (1) his general view that the mother is responsible for the breakdown in the relationship between S and the father, and (2) the father’s current alleged parlous financial state, particularly centred around his being an undischarged bankrupt, and his submission that the mother is better placed to be able to afford to pay for such counselling. 

5. The mother was asked what her views were in respect of such counselling.  To her credit, she quickly responded in a positive fashion, totally supporting the notion that it would be good for him to attend counselling along with his father with a view to reconciling their relationship, and that it would also be good for him to attend counselling with a view to reconciling his relationship with his brother, J.  When it came to the father’s proposal about an independent expert and the mother paying for it, the mother submitted that, the evidence does not establish that she is in position to afford to pay for it. She also submitted that the evidence does not support a finding that she is responsible solely for the breakdown in the relationship between S and the father. For those reasons, she opposed the father’s application that she be ordered to pay for such counselling.   

6. I am quite satisfied that the mother herself is not solely responsible for the breakdown of the relationship between S and his father.  By that, I am not saying that I consider the father is solely responsible for the breakdown in the relationship between S and his father.  I say that I am quite satisfied in the circumstances of this case, having heard all the evidence and seen the parties now before this Court over a year, that both parents are each to a significant degree responsible for the conflict that exists between the two of them, the conflict that has taken such a substantial toll on their children, particularly their two children who are now adults. 

7. The mother proposed that such counselling not take place at F or with an expert that might have to be paid for.  Instead, she referred to the fact that came out in evidence that the eldest boy, J, who is now 20, attends an adolescent and youth mental health service in offices at U, and that he obtains counselling there that the mother had arranged for him. I expect that is probably provided through the Queensland Health Department.  The mother says that such counselling is given without cost to the parties.  She said it was “bulk-billed”. 

8. I understand that if a mental health plan is put in place by a doctor in respect of the particular adolescent, that such treatment can indeed be obtained without charge to the parents or the adolescent themselves, being “bulk-billed” through Medicare.   In any event, the mother proposed that she would support orders that S attend at that same place and receive similar type counselling in a way that did not cost either of the parties any money, and in a way that potentially could be linked in with the counselling his brother already receives and could involve his father as well.   

9. When that proposition was put to the father, the father did not support it for two reasons:  first, he said J would not want counselling to reconcile his relationship with his brother, and second, that U is too far for the father to travel. 

10. In all the circumstances, I do not consider it appropriate to make orders that the mother pay for the costs of any independent expert who facilitates counselling with the boy, S.  I am not satisfied that her financial state is such that she could afford to pay for it,  and secondly, I am not satisfied that there are reasons that would make it just that she pays for it, given that I am not satisfied that she is solely responsible for the breakdown in the relationship between S and his father. 

11. Therefore, I do not consider it appropriate to order that it take place at F.  I am of the view that if the father seriously wants S to be counselled and to be counselled towards reconciliation of his relationship with him, that it is not too much of an impost on him to have such counselling to take place at U.  In the first instance, S will have to be transported to U by his mother from his mother’s place.  It will only be as and when the expert who counsels S determines that S is ready for the father to be involved or that it is appropriate then for the father to be involved, that the father would be required to attend at U. 

12. I am reasonably confident that the number of times that the father would be required to attend there, and the regularity of it, would be such that if he genuinely wishes to reconcile his relationship with S – which I have no doubt that he does – that he will make the little extra effort, in circumstances where he is not currently working, to get himself from his place of residence to U, however he can. 

13. As the parties both contend that it is in S’s best interests for him to have such counselling, I will order it to take place. In the circumstances though, I will order that it take place at U.  If there are any costs charged for that counselling by the provider, they shall be borne equally by the parents.

1. I make the orders set out at the commencement of these written reasons for judgment.

I certify that the preceding one hundred and forty-four (144) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 26 April 2013.

Associate: 

Date:  26 April 2013