Laurie & Child Support Registrar
[2009] FamCAFC 183
•12 October 2009
FAMILY COURT OF AUSTRALIA
| LAURIE & CHILD SUPPORT REGISTRAR | [2009] FamCAFC 183 |
| FAMILY LAW – APPEAL – Application in an Appeal – Leave to reinstate an abandoned appeal – Appeal against a decision from the Federal Magistrates Court dismissing an appeal from the Social Security Appeals Tribunal (SSAT) – Where there was a failure to file a draft index to the appeal books – Where the appeal was deemed abandoned by r 22.13(2) – Where a Notice of Constitutional Matter was filed – Where the proceedings involved a matter arising under the Constitution or involving the interpretation within the meaning of s 78B of the Judiciary Act1903 (Cth) – Where the Father seeks to agitate issues in relation to the constitutional validity of provisions of the Child Support (Assessment) Act 1989 (Cth) – Where the grounds of appeal are futile – Where the Father does not agitate any prejudice to him if the application was refused – Where the public cost of the proceedings to date has been significant and the public interest cannot be ignored – Appeal dismissed FAMILY LAW – COSTS – Where the Father has been wholly unsuccessful – Where justifying circumstances as required by s 117 of the Family Law Act have been established – Where there was no evidence that the Father could not afford to pay costs – Costs granted |
| Judiciary Act 1903 (Cth) |
| Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 Australian Family Law, Vol 2, Family Court Practice: Lexis Nexis Butterworths |
| APPELLANT: | Mr LAURIE |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 2252 | of | 2008 |
| APPEAL NUMBER: | EA | 85 | of | 2009 |
| DATE DELIVERED: | 12 October 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 8 October 2009 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 10 July 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 721 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | George Potkonyak, solicitor |
| SOLICITOR FOR THE APPELLANT: | Morgan Ardino & Co |
| COUNSEL FOR THE RESPONDENT: | Mr Gouliaditis, solicitor |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The Application in an Appeal filed on behalf of Mr Laurie (“the Applicant”) be dismissed.
The Applicant pay the costs of the Deputy Child Support Registrar.
The costs referred to in Order 2 hereof be assessed in the amount of $3,363.55.
The Applicant pay to the Deputy Child Support Registrar the amount in Order 3 hereof within 36 days of the date of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Laurie & Child Support Registrar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 85 of 2009
File Number: SYC 2252 of 2008
| MR LAURIE |
Appellant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an Application in an Appeal by Mr Laurie (“the Father”) seeking to have a Notice of Appeal reinstated.
On 6 August 2009 the Father filed a Notice of Appeal from orders of Federal Magistrate Sexton made on 10 July 2009. The Federal Magistrate dismissed an appeal by the Father from a decision made on 3 March 2008 by the Social Security Appeals Tribunal (“SSAT”). The SSAT had affirmed a decision of the Child Support Registrar, made on 5 October 2007, refusing a request by the Father for an extension of time in which to lodge an objection to a change of assessment decision made on 18 December 2000. In the Notice of Appeal the Father sought leave to appeal: see s 107A(1)(a) of the Child Support (Registration & Collection) Act 1989 (Cth) (“the Registration & Collection Act”).
The appeal by the Father was deemed abandoned by the operation of r 22.13(3) of the Family Law Rules 2004 (“the Rules”) for failure by the Father to file a draft index to the appeal book within the time prescribed by r 22.13(2). The Father now seeks to reinstate the appeal or, more accurately, the application for leave to appeal, by seeking an extension of time in which to file a draft index: see r 1.14 of the Rules.
The Child Support Registrar opposes the application.
In the proceedings before the Federal Magistrate, on 13 March 2009 the Father filed a notice of a constitutional matter. The issues referred to in that notice were not articulated in the original appeal grounds. The Federal Magistrate nonetheless dealt with the constitutional issues. The Commonwealth Attorney-General did not intervene and nor did the Attorney-General for any State or Territory. It was submitted by the Child Support Registrar that the constitutional issues sought to be agitated on appeal before the Family Court appear to re-state the issues set out in the earlier 78B notice.
BACKGROUND
In her Reasons for Judgment of 10 July 2009, Federal Magistrate Sexton from [4] – [23] provided a detailed history of the proceedings which I will repeat. As well the Father put in evidence an affidavit affirmed by Ms Filho (“the Mother”) on 23 March 2009. Consideration of this affidavit reveals that there has been significant and protracted litigation between the Father and the Mother arising out of the breakdown of their relationship.
There are two children born in 1994 and in 1997 the subject of child support assessments registered with the Child Support Agency on 27 January 1997.
On 5 October 2000, the Mother lodged a change of assessment application with the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) seeking an increase in the child support payable by the Father on the basis of the costs of child care being greater than five per cent of the payee’s child support income, and on the basis of the Father’s financial position.
On 18 December 2000 the Child Support Registrar made a departure determination under Part 6A of the Assessment Act increasing the Father's child support liability. The reasons contended for by the Mother were established and the annual rate of child support payable by the Father was increased to $10,534.20. It is this decision which the Father seeks to impugn.
On 26 July 2006 the Mother was informed by a lawyer from the Australian Government Solicitor (“AGS”) that the Father had declared himself bankrupt. The Mother deposed in her affidavit of 23 March 2009 that as a result, proceedings for enforcement of child support obligations of the Father, which were against the Father and a company that was described as the alter ego of the Father, were withdrawn by the Child Support Registrar.
On 15 August 2007 the Father requested an extension of time within which to lodge an objection to the decision made on 18 December 2000. The application was made almost seven years after the decision.
On 5 October 2007 the Child Support Registrar refused the Father’s request. In a letter to the Father dated 5 October 2007, the objections officer stated that “the Child Support Agency must be satisfied that it is in the overall interests of justice to allow an extension of time in all the circumstances of the case.” The officer set out her brief reasons, which are summarised in the written submissions of the Child Support Registrar, as follows:
1.The Father did not establish that he was unable to lodge the objection within the required time-frame and the delay was seven years;
2.The Father did not contact the Child Support Agency until June 2002 to advise he was appealing the 1997 and 2000 decisions through the Court. The records of the Child Support Agency revealed the Father was employed in 2001. In regard to the Father’s claim that he had not been contacted by a Senior Case Officer, the decision stated that the Father was not available for his scheduled telephone conference. The Father did not provide evidence to establish a case for review of the decision of 18 December 2000;
3.Allowing an extension of time to object would prejudice the Mother.
On 29 October 2007 the Father lodged an appeal to the SSAT seeking a merits review of the Child Support Registrar’s decision of 5 October 2007.
On 18 February 2008 the SSAT heard the appeal. The Father appeared in person assisted by Mr F. The hearing was adjourned until 3 March 2008 to obtain additional information from the Child Support Agency.
On 3 March 2008, the SSAT affirmed the Child Support Registrar’s decision not to grant an extension of time in which to lodge an objection to the Registrar's decision.
In her reasons the Federal Magistrate observed:
30.The SSAT decision recorded that Reasons for the Decision were despatched on 14 March 2008. However, the appellant adduced no evidence as to when he received those reasons. The original notice of appeal was filed on 21 April 2008, and may therefore have been out of time. None of the parties raised an issue as to whether leave was required by the appellant to extend time for the filing of the appeal, but to the extent necessary, I give such leave.
On 21 April 2008 the Father filed a Notice of Appeal (Child Support) in the Federal Magistrates Court in relation to the decision of the SSAT. On 23 May 2008 the Father filed an Amended Notice of Appeal (Child Support).
On 10 June 2008 the proceedings came before Federal Magistrate Lindsay. The Father made an oral application for the appointment of a McKenzie Friend which was dismissed. The Federal Magistrate also made orders that the Father comply with Rule 25A.05 of the Federal Magistrates Court Rules 2001; the Father file and serve by 2 September 2008 any affidavit in relation to the appointment of a McKenzie Friend or in relation to any application for assistance from Mr F; each party file and serve by 2 September 2008 any further affidavits on which they intended to rely at the hearing and an outline of argument and list of authorities. The appeal was listed for hearing before Federal Magistrate Sexton on 16 September 2008.
On 4 August 2008 the Father filed an Application in a Case seeking an order that the Federal Magistrates Court provide him with a copy of the transcript of the hearing before the SSAT. On 19 August 2008 the application was dismissed by Federal Magistrate Jarrett.
On 16 September 2008 the Father sought an adjournment of the hearing before Federal Magistrate Sexton because he was awaiting the result of an application for review of a decision to refuse him a grant of legal aid. The Federal Magistrate adjourned the hearing, but noted that the matter would be heard on the adjourned date of 25 November 2008, whether or not the Father’s legal aid review application was successful. The Federal Magistrate also noted that the Father would need to show cause why he had not complied with the orders of 10 June 2008 in relation to an application for a McKenzie Friend before any further application for a McKenzie Friend would be considered.
The Mother contended that on 17 September 2008 the AGS provided her with a copy of the Notice of Appeal, having been informed by email on 16 September 2008 by Mr Gouliaditis of the AGS that “an appeal was on foot”.
On 11 November 2008, Mr George Potkonyak filed an Application in a Case seeking the following orders:
1.That leave be granted to Mr George Potkonyak to appear as the legal representative for the appellant [Mr Laurie] at the hearing of his appeal from the decision of the SSAT of 3 March 2008 and at any other subsequent proceedings in the same matter and in this Court, if such arise.
2.That the above order is made ex parte in chambers and the parties are duly notified of the decision not less than 7 days before the appeal hearing set for 25 November 2008.
On 25 November 2008 Federal Magistrate Sexton heard the Father’s oral application for the appointment of Mr Potkonyak as his advocate in the appeal proceedings and adjourned the substantive hearing of the appeal until 2 December 2008. The Father did not advise the Federal Magistrate that he would be unavailable on the adjourned date. In her reasons the Federal Magistrate observed at [17]: “On the contrary, the transcript of the proceedings on that date makes clear that the appellant confirmed his availability at either 10 a.m. or 2.15 p.m. on 2 December 2009. The appellant made no reference to his brother’s death in Greece, or of his need to travel overseas”.
In her reasons the Federal Magistrate also said:
24.Mr Maurice of counsel, representing the child support payee, appeared for the first time in these proceedings on 25 November 2008. Mr Maurice advised the court that [the Mother] had not been served with the Notice of Appeal or any other material filed in support of the appeal as required by Rule 25A.07 of the Federal Magistrates Court Rules. Mr Maurice sought leave to appear in the proceedings and to make submissions. There was no objection by the appellant or the Child Support Registrar to this course.
25.Section 110D of the Child Support (Registration and Collection) Act 1988 (“the Registration Act”) provides that the parties to an appeal under Division 3 of Part VIII are the “people who were the parties to the SSAT proceedings when the SSAT made the relevant decision.” In this case, the decision being reviewed was a decision to refuse an extension of time for the lodging of an objection. Therefore, unless [the Mother] applied in writing to the Executive Director of the SSAT to be made a party to the review pursuant to section 101(2) of the Act, then only the appellant and the Child Support Registrar are parties to the review. [The Mother] was not named as a party to the review in the SSAT Reasons for Decision.
In her affidavit affirmed on 23 March 2009 the Mother deposed that she briefed Richard Maurice of counsel to appear for her on 25 and 28 November 2008 and she did not consent to the hearing being adjourned to 25 March 2009 as Mr Maurice was not available and “as he has basically represented me for the last 12 years, he was the most suitable counsel to appear for me”. The Mother contended that the solicitor from the AGS insisted that the first date available being 25 March 2009 was the most suitable date for the further hearing.
On 26 November 2008 a Registrar of the Federal Magistrates Court received a facsimile letter from the Father advising that he would be overseas for four to five weeks and requested the date for hearing of 2 December 2008 be vacated, and a new date allocated “preferably early in the new year”. The Father said that his brother in Greece had died.
On 28 November 2008 Federal Magistrate Sexton dismissed the application for Mr Potkonyak to appear for the Father and published detailed reasons for judgment. The Federal Magistrate reserved the costs of the Child Support Registrar and the costs of the Mother.
On 2 December 2008 without objection from the respondents, Federal Magistrate Sexton made an order in chambers vacating the hearing date of 2 December 2008 and listed the hearing for 25 March 2009. The Federal Magistrate ordered the Father to file and serve, by no later than 21 days prior to the hearing, evidence of the death of his brother in Greece, evidence as to when the Father became aware of the death of his brother, and certified copies of his passport and airline tickets (or boarding passes) evidencing his travel overseas. On 2 March 2008 the Father filed an affidavit in accordance with the orders of 2 December 2008.
The Mother contended that on 2 December 2008 she had a telephone conversation with Mr Gouliaditis of the AGS about a hearing date on either 25 March 2009 or 4 May 2009 and the Mother said that “4 May 2009 is preferable”.
In paragraph 29 of the affidavit affirmed by the Mother on 23 March 2009 she deposed:
The representations made to the Associate for Sexton FM in writing on 2 December 2008 at 1.11 pm by email to the effect that ‘we note that the payees representative is not available on that date, however the principal parties are MR [Laurie] and the Registrar. The payee was given leave to intervene to make supplementary submissions and this could be achieved by the provision of written documentation’
For reasons which are not entirely clear to me, the Father contends that there was some sort of conspiracy between Federal Magistrate Sexton and the Mother and this is founded on alleged communications between the Federal Magistrate and the Mother. I understand that the Father contends that the “representations” referred to by the Mother in paragraph 29 of her affidavit of 23 March 2009 were made by e-mail communication between the Mother and the Federal Magistrate or the Associate to the Federal Magistrate.
During the hearing before me the Child Support Registrar put in evidence, without objection, copies of emails dated 2 December 2008. By email dated 2 December 2008, the Associate to Federal Magistrate Sexton wrote to Mr Maurice, counsel for the Mother, and also Mr Gouliaditis of the AGS and stated:
Her honour will make an order in chambers today adjourning the hearing of the above matter.
In relation to the adjourned date the only available date her Honour has apart from 30 March 2009, is 4 May 2009. Please advise whether this date is available.
By email dated 2 December 2008 a solicitor from the AGS wrote to the Associate to Federal Magistrate Sexton and stated:
We understand that her honour will be hearing short matters on 25 March 2009. The Child Support Registrar will expect the hearing of this matter to take an hour. The Registrar would like the matter to be heard on 25 March 2009.
We note that the payee’s representative is not available on that date; however the principal parties are Mr [Laurie] and the Registrar. The payee was given leave to intervene to make supplementary submissions and this could be achieved by the provision of written submissions.
However, the Registrar would be, if necessary, available on 4 May 2009.
There is no evidence of any communications by email or otherwise between Federal Magistrate Sexton and the Mother of the type contended for by the Father.
I observe that at paragraph 30 of her affidavit affirmed on 23 March 2009 the Mother said that she had been joined as a party “and have all the rights of others. I am not aware of any directions to make submissions in writing but given the circumstances I have no intention of attending on 25 March 2009”.
On 13 March 2009 the Father, who was represented by Mr Potkonyak, filed a Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth). The Federal Magistrate observed at [22] that Mr Potkonyak was by then a practising solicitor. The Notice stated:
Sections 95C(2) and 98C(3) of the [Assessment Act] are repugnant to the Constitution and void ab initio on the grounds that:
(a) The sections purport to grant the judicial power to an administrative person, thus in breach of Ch III of the Constitution; and/or
(b) The sections purport to make law for the acquisition of property other than on just terms, thus, in breach of s 51(xxx) of the Constitution.
Section 29(1) of the [Assessment Act] grants power to an administrative person to make determination without having to conduct any inquiries or investigations.
Section 98H(4) grants power to an administrative person to conduct hearing, inquiry or investigation without regard to the rules of evidence.
Two determinations by the Deputy Registrar of the Child Support Agency, subject to the application for review by the applicant, have been based on the Deputy Registrar's assessment of the applicants earning capacity. Such an assessment could not have been constitutionally made without proper conduct of the hearing, inquiries or investigations with full regard to the rules of evidence.
The Commonwealth Attorney-General did not intervene and nor did the Attorney General for any State or Territory.
In relation to the s 78B Notice in her reasons the Federal Magistrate observed:
31.On 13 March 2009, a Notice of a Constitutional Matter under s.78B of the Judiciary Act 1903 was filed on behalf of the appellant. These issues are not referred to in the Amended Notice of Appeal (Child Support), and relied on by the appellant in his appeal from the SSAT decision. Mr Potkonyak for the appellant says the section 78B Notice is sufficient without amending the Notice of Appeal
…because the purpose of that notice is if the legislation is found to be unconstitutional then the appeal will not proceed at all because it will be appealing something that never existed so I can’t see any point…
32.I agree with the submission on behalf of the Registrar that the mere filing of a section 78B Notice is not sufficient to raise the constitutional issues in the appeal proceedings. These grounds should have been included in a further Amended Notice of Appeal. However, given that the matter dates back to a decision of the Registrar of December 2000, the length of time since the Notice of Appeal was filed and the manner in which the appellant has conducted this litigation, I determined, despite these procedural irregularities, to hear and determine both aspects of the matter, given court time had been allocated.
Compliance with s.78B of the Judiciary Act
…
34.Mr Potkonyak, for the appellant, submits that he gave notice of the constitutional matters referred to in the s.78B Notice to the Attorneys-General of the Commonwealth, the States and the Territories in accordance with the requirements of s.78B of the Judiciary Act 1903, by letter sent to all the Attorneys-General on 16 March 2009, enclosing the Notice. Mr Potkonyak could not provide the Court with a copy of any of the nine letters he had sent, but did tender copies of the responses he had received from the Attorneys-General of the Commonwealth, Tasmania and the Australian Capital Territory declining to intervene in the proceedings.
35.The Registrar’s solicitor submits that the duty under s.78B is twofold: firstly, the Court must be satisfied that the Notices have been sent to the Attorneys-General of the Commonwealth and of the States, and secondly, the Court must be satisfied that a reasonable time has elapsed since the Notices were sent for consideration by the Attorneys-General of the question of intervention in the proceedings or removal of the cause to the High Court. The submission on behalf of the Registrar was that the Court could firstly be satisfied that the notices had been sent on the basis of an undertaking given by Mr Potkonyak, as an officer of the court, and the three responses received and secondly, the Court could be satisfied that, even though only a relatively short time had passed since the Notices were sent, the period of time was reasonable for consideration of the question of intervention.
36.On balance, I accepted Mr Gouliaditis’ submissions that the requirements of s.78B had been complied with by the appellant and that the Attorneys-General of the Commonwealth and of the States were on notice of the proceedings, and had chosen not to participate.
In relation to the issues raised in the s 78B Notice the Federal Magistrate observed:
39.The appellant’s solicitor orally confirmed at the hearing that his constitutional challenge to the provisions of the Child Support(Assessment) Act 1989 (“the Assessment Act”) related to the provisions of that Act as they existed at the time of the Registrar’s decision on 18 December 2000.
40.The Notice did not challenge any provision of the Registration Act. However, in oral submissions, the appellant’s solicitor raised objections to certain sections of Part 7 and 8 of the Registration Act.
On 25 March 2009 Federal Magistrate Sexton heard submissions from Mr Potkonyak for the Father and Mr Gouliaditis representing the Child Support Registrar, in relation to the constitutional matters raised by the Father in the s 78B Notice. The Federal Magistrate then proceeded “to hear the substantive appeal from the decision of the SSAT”. At the conclusion of the hearing the Federal Magistrate reserved judgment.
In her reasons the Federal Magistrate said:
26.On 25 March 2009, Mr Potkonyak, solicitor representing the appellant, opposed [the Mother] being named as a respondent to the proceedings. Mr Potkonyak submitted that [the Mother] “was not a party originally and she just appeared as a party all of a sudden half way through the proceedings with no order by Your Honour, no application by the mother, nothing.” There was no appearance by [the Mother] or her counsel on 25 March 2009. Mr Maurice had advised of his unavailability on that date and [the Mother] noted an objection to the hearing date in an affidavit sworn by her on 23 March 2009 and filed the day before the hearing. [The Mother] did not, however, make an application for an adjournment of the hearing. Although he objected to [the Mother] being named as a respondent, Mr Potkonyak did not object to the affidavit of [the Mother] sworn 23 March 2009 being read in the proceedings.
27.Rule 11.03 of the Federal Magistrates Court Rules 2001 provides that a person may apply to the Court to be included as a party to the proceedings. On 25 November 2008, I gave leave to Mr Maurice to file a Notice of Address for Service in Court as counsel for the payee. Thereafter [the Mother] was named as the second respondent in the proceedings.
In her reasons the Federal Magistrate also said:
73.The appellant filed an Amended Notice of Appeal on 23 May 2008 which lists 10 grounds of appeal. He did not file a further Amended Notice. The appellant signed his own written submissions in support of his appeal in August 2008, though the words “A friend, [Mr F], assisted the Appellant with the preparation of this document” appear type written at the conclusion of the document. There is no certification on the document to the effect that it was necessary for the document to be read to the appellant. As already noted, the appellant signed the document.
74.It seems at the hearing the appellant’s solicitor abandoned the grounds of appeal set out in the Amended Notice of Appeal of May 2008. Mr Potkonyak did not address the matters addressed in the appellant’s written submissions, nor did he address the grounds set out in the Amended Notice of Appeal. I found it difficult to follow the appellant’s case, as it seems did the solicitor for the Registrar. Mr Gouliaditis said.
Your Honour, I am slowly at a loss because I am not sure how any of those arguments [concerning the constitutional issues] relate to any of the appeal points raised in the notice of appeal.
75.I had explained to Mr Potkonyak at the time of hearing that I would hear his submissions in relation to the constitutional issues, and then in relation to further matters raised on the appeal from the SSAT decision.
76.At hearing, the appellant’s solicitor said, after making submissions in relation to the constitutional issues:
I… have nothing to argue there. My argument would be that the decision of the – the determination of the Registrar was invalid and there wouldn’t be even need for the appeal to the Tribunal at all…
…
the error of law would come back to the constitutional issue because the – what has been taken as facts – as evidence was not evidence presented in accordance with the law because accusations by somebody it was not evidence at all.
77.Mr Potkonyak then submitted that the appellant delayed in lodging an objection for this reason:
…because he didn’t know what to object to. I wouldn’t know what to object to.
78.Inexplicably, this reason contradicts the position advanced by the appellant in his written submissions of August 2008 when the appellant says
Ms Benk has incorrectly and erroneously found that the main reason for the Appellant not making the objection was a deliberate plan not to do so.
79.I find a lack of clarity and lack of consistency in the appellant’s position, but endeavour to address the grounds of appeal set out in the Amended Notice of Appeal. These grounds are not always consistent with the written submissions filed in August 2008. (all footnotes omitted)
On 10 July 2009 Federal Magistrate Sexton delivered reasons and made the following orders:
1.The appellant’s Notice of Appeal (Child Support) filed on 21 April 2008 and Amended Notice of Appeal (Child Support) filed on 23 May 2008 is dismissed.
2.The First Respondent’s application for costs is listed for hearing at 10.00 a.m on 7 September 2009.
3.The First Respondent file and serve any material on which they intend to rely no later than 4.00 p.m. 30 July 2009.
4.The Second Respondent file and serve any application for costs and affidavit in support within 21 days, such application is returnable on 7 September 2009 noting the parties should expect the matter to be heard on that day.
5.The Appellant file and serve any material in response to the application or applications for costs by no later than 4.00 p.m on 21 August 2009.
On 6 August 2009 the Father filed a Notice of Appeal against orders made by Federal Magistrate Sexton. The Father seeks leave to appeal and in that part of the Notice where there is a requirement to state “briefly the facts relied on in support of the application for leave to appeal and which establish an error of principle or a substantial injustice” it is stated:
1.The provision of the Act under which the assessment was made is being challenged on constitutional grounds.
2.The matter is of a significant public interest.
The Grounds of Appeal are as follows:
1.Breach of Chapter III of the Constitution
The learned Magistrate erred in finding the Constitutional challenge to certain provisions of the Child Support (Assessment) Act 1998 that deal with the “earning capacity” of a payer, as advanced by the applicant (now appellant), as being without merit. Her honour quoted and interpreted correctly Gleeson CJ in Luton v Lessels (2002 210 CLR 333 at 21: “The making of decisions by the application of legal criteria to facts as found in characteristic, but not distinctive, of the judicial function.”
However, her Honour failed to grasp the gravamen of the argument, namely that, when it comes to the determinations by the Child Support Registrar based on the “earning capacity” of a payer, the Registrar is not applying law to facts but rather applying law to fiction: unproven allegations, assertions, insinuations, suspicions or even malicious statements. The Registrar is not capable of converting fiction into facts, since the Registrar is not required to make inquiries [s98(1)(b)] and, if an inquiry is made, the Registrar is not bound by the rules of evidence [s98H(4)].
By the provisions of s110 of the Act, as it stood in 2000, the aggrieved person could have appealed directly to the court and be heard de novo. However, every determination by the Registrar based on the “earning capacity” would be subject to a de novo hearing since it was not, and could not be, based on facts because the Registrar is not capable of establishing facts. Yet, the Registrar is given powers by s98C(3) as those given to a judicial officer by s117 of the Act.
The current version of the Act is even more onerous: it does not have a provision for an appeal to a court as of right but only on the grounds of the error of law. In other words, fiction as established by the Registrar gains a status of facts, that is, as bona fides evidence but without having regard to any rules of evidence.
2.Breach of s 51(xxxi) of the Constitution
A determination made in the above manner is a law for the acquisition of property other than on just terms. The word “just”, as used in s51(xxxi), means, inter alia, “according to law”.
3.Joinder of [Ms Filho] to the proceedings below as a second respondent was done without an application and through a private communication between [Ms Filho] and her Honour, Sexton FM or her Honour’s Associate. The applicant (now appellant) was not given an opportunity to object.
The proposed Notice of Appeal filed on 6 August 2009 seeks to have the orders made by Federal Magistrate Sexton on 10 July 2009 set aside. In the written submissions of the Child Support Agency it is pointed out that in so far as the orders seek to set aside the directions made for the filing of material and submissions on costs, the orders sought are defunct given that such proceedings are now concluded. The Father also seeks an order that the joinder of the Mother as a party in the proceedings below be declared invalid.
In the written submissions of the Child Support Registrar it was observed that the Mother was not named as a respondent in the appeal and that as a person who is “directly affected by the orders sought in the Notice of Appeal, or who is likely to be interested in maintaining the order under appeal”, the Mother should probably have been made a respondent; see r 22.04 of the Rules. It was said that in any event, by letter dated 2 October 2009 to the Court, the Mother has indicated that she does not propose to seek to be made a party to the appeal for the purposes of the current application, but reserves her right to apply to be joined at a later time.
In an affidavit sworn on 10 September 2009, Mr Potkonyak contended that on 6 August 2009 the Notice of Appeal was not filed by the Registry staff “but rather it has been filed at a later date and I have received sealed copies several days later”. Mr Potkonyak contended that if the Notice of Appeal was filed on 6 August 2009, the draft index for the appeal book would have been due on 3 September 2009. He contended that he prepared the draft index however he delayed filing it until the day of the hearing of the costs application, namely 7 September 2009.
By letter dated 10 August 2009 the assistant to the Appeal Registrar of the Eastern Region wrote to the solicitors for the Father and enclosed “stamped service copies of the Notice of Appeal filed on 6 August 2009”. Thereafter reference was made to r 22.13(2) and (3) of the Rules. Without repeating all of what was said in the letter, it was stated that “you should therefore, ensure that a draft index to the appeal books is filed with me, and served on all other parties to the appeal, no later than 4.30 pm on 3 September 2009” and “failure to file a draft index by 4.30 pm on 3 September 2009 will result in the appeal being deemed abandoned pursuant to Rule 22.13(3)”. There was included with the letter a draft form of appeal index and a copy of relevant rules being rr 22.13, 22.19, 22.20, 22.21 and 22.22 of the Rules.
On 4 September 2009 the Appeals Registrar made the following order:
1.The Notice of Appeal filed by Mr [Laurie] on 6 August 2009 from Orders made by Federal Magistrate Sexton on 10 July 2009 has been deemed abandoned pursuant to Rule 22.13(3) as the appellant failed to file and serve a draft index by 3 September 2009.
On 7 September 2009 Federal Magistrate Sexton heard a costs application by the Child Support Registrar and the Mother. The Child Support Registrar sought costs in the amount of $18,238.56 and the Mother sought an amount of $1,804.00. The Federal Magistrate reserved judgment.
Mr Potkonyak contended that on 7 September 2009 he attempted to file a draft appeal book index together with an application for leave to file a draft appeal book index. He contended that he was informed by Registry staff that the appeal was deemed to have been abandoned.
On 10 September 2009 Mr Potkonyak filed a draft appeal book index. There are 13 documents identified in the index which include orders made by Rowlands J on 30 September 1998 and 2 February 1999 and “email from [the Mother] (or her representative) to the associate of Sexton FM of 2 December 2008” and “all other correspondence between [the Mother] and the associate of Sexton FM”. As I have already observed, there is no evidence of any email communication between the Mother and the Federal Magistrate.
On 10 September 2009 the Father filed the current Application in an Appeal seeking the following orders:
1.That the appeal EA85/2009, for which the notice of appeal was fled on 7 August 2009, be re-instituted.
2.That leave be granted for filing of the Draft Index for the Appeal Book out of time to enable the inclusion (or otherwise) of the Cost Orders following the Cost Application hearing set for 7 September 2009.
Mr Potkonyak swore an affidavit on 10 September 2009 supporting the application and deposed the following:
1.…
I represented the appellant in the proceedings under appeal and have prepared and filed the Notice of Appeal on 7 august [sic] 2009 in the Appeals Registry of the Family Court (East). On that occasion the notice of appeal was not filed by the Registry staff but rather it has been filed at a later date and I have received sealed copies several days later.
If the notice of appeal was filed on the day when I first attempted to filed it (7 August 2009), the draft index for the appeal [sic] book would have been due on 3 September [sic] 2009. I prepared the draft index, however, delayed its filing until the day the cost application the court below was listed for hearing (7 September 2009).
When I attempted to file the draft index on 7 September 2009, together with an application for leave to file the draft index two days late, I have been informed by the Registry staff that the appeal was deemed to have been abandoned. Below are the reasons for my withholding the delaying the filing of the draft index to the appeal book.
2.Firstly, in my opinion it would be appropriate to start counting the days for the filing of the draft index to the appeal book three days from the day the notice of appeal is actually filed and sealed copies sent to the appellant’s lawyer. It is unfair to the appellant’s lawyers to take awy [sic] from time that the rules prescribe.
3.Most importantly, I wanted to see whether [the Mother] would file her claim for legal costs at the cost hearing on 7 September 2009. The reason for this is that [the Mother], as I suspected, has been joined to the proceedings below for the sole purpose of her being able claim some legal costs. Even more importantly, [the Mother]’s joinder to the proceedings as a second respondent was illegitimate. Since the draft index contained the reference to the private email communication between [the Mother] and the Associate to Sexton FM, I did not want to alert those taking part in that illegitimate act to the fact that I knew what had taken place until I see if [the Mother] was to file her claim for legal costs, as she did no [sic] the day of the hearing of the costs applications (7 September 2009). (emphasis added)
4.[The Mother] contacted – in private – by email the Associate to Sexton FM and requested that she be added either as a party or as an intervener to the proceedings. The [sic] was no formal application filed (it is not in the case file) and there was no opportunity given to the appellant to object to that application. [The Mother] suddenly appeared as a second respondent on the face of the interim orders by Sexton FM.
5.At one of the appearances I raised that issue with her Honour Sexton FM who informed me that her Honour had granted leave to [the Mother] to appear as an intervener. She, in fact, was joined by someone, perhaps the Associate to Sexton FM, as a second respondent rather than as an intervener – for obvious reasons, as [the Mother]’s application for costs shows.
6.In my very long experience in the Family Court, before I joined the legal profession, I have encountered numerous instances of the illegitimate dealings between the less than noble section of the “noble profession” and some element within the Family Court staff. My complaints to the Appeal Court judges and to the Administrative arm of the Family Court ended up by each pointing the finger to the other. My struggle went on for four years, with an only explanation given that all that was due to “error”.
7.I kindly ask that this present complaint gets heard by a Judge of the Appeal Court and that a full inquiry into this incident be ordered and reported on. I have studied the law in order to prepare myself for the “legal battles” – win, lose or draw. However, I do not wish to continue looking over my shoulder every time I walk into the Family Court (that includes the Federal Magistrates Court and the Appeal Court). I need to be assured that otherwise honest, polite and co-operative staff of these courts will be rid of the element of a kind that I have experienced and, it appears, am still experiencing.
8.In the meantime I expect the judgment on the cost hearing will be delivered and would like to join the appeal of the cost orders to the substantive appeal, since both appeals will be ground on the identical constitutional issues. In my opinion, the matter is of a significant public interest and I expect some of the Attorney-Generals joining the action.
On 14 September 2009 Federal Magistrate Sexton delivered judgment in relation to costs applications and made the following orders:
1.The applicant pay the Child Support Registrar’s costs of the appeal from a decision of the Social Security Appeals Tribunal in the sum of $12,463.80, such sum to be paid to the first respondent within 2 months of the date of this order.
2.The applicant pay the Child Support Registrar’s costs of the costs application in the sum of $3,080.00, such sum to be paid to the first respondent within 2 months of this order.
3.The applicant pay Ms [Filho]’s costs of the appeal in the sum of $1,330, such sum to be paid to Ms [Filho] within 2 months of the date of this order.
The costs orders were made on the basis that:
1.The Father’s conduct caused delays in the proceedings being finalised (including by failing to comply with court orders and rules, and prosecuting the appeal in an improper manner).
2.The Father was entirely unsuccessful.
3.The Father effectively abandoned the non-constitutional appeal grounds at the hearing and instead relied on constitutional arguments that had been comprehensively dismissed by the High Court.
On 28 September 2009 the Child Support Registrar filed a Notice of Constitutional Matter and stated the following:
1.The Respondent gives notice that the above proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act 1903 (Cth).
NATURE OF THE CONSTITUTIONAL MATTER
2.The proceeding is en appeal (for which leave to appeal is necessary) from a judgment of Federal Magistrate Sexton given on 10 July 2009 (proceedings SYC 2252 of 2008) (the primary judgment) (Attachment ‘A’). The appeal was deemed abandoned under r 22.13(3) of the Family Law Rules 2004 (Cth) and is now sought to be reinstated. The proposed grounds of appeal are contained in the notice of appeal filed by the appellant on 6 August 2009 (Attachment ‘B’). The grounds of appeal set out therein appear to reveal the following issues arising under the Constitution:
2.1. Whether s 98C(2) and (3) of the Child Support (Assessment) Act1989 (Cth) (the Act), as it existed in December 2000, are invalid in that they purported to confer judicial power on an administrative person in breach of Chapter III of the Constitution. [See primary judgment at pars 41-46.]
2.2. Whether s 98C(2) and (3) of the Act, as it existed in December 2000, are invalid in that they purport to provide for the acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution. [See primary judgment at pars 46-49.]
2.3. Whether provisions of the Act that allow for the Respondent to make findings with respect to the ‘earning capacity’ of a child support payer are constitutionally invalid by not providing due process since the Respondent is not required to make inquiries (ss 29(1) and 96H(1)(b)) and, if inquiries are made, is not bound by the rules of evidence (s 98H(4)) [See primary judgment at pars 50-54]
FACTS
3.In the proceedings before Federal Magistrate Sexton the appellant filed a notice of a constitutional matter on 13 March 2009 (Attachment ‘C’). The issues referred to in that notice were not articulated in the original appeal grounds. The Federal Magistrate nonetheless dealt with the constitutional issues. No Commonwealth, State or Territory Attorney-General intervened, [See primary judgment at pars 31-36.]
4.The constitutional issues sought to be agitated on appeal before the Family Court appear to re-state the issues set out in the earlier s 78B notice.
5.The application to have the appeal reinstated (after it was deemed abandoned for failure to file a draft index to the appeal book) is listed for hearing before O'Ryan J on 8 October 2009.
The s 78B Notice was filed by the Child Support Registrar because the Father failed to file and serve such a notice notwithstanding the issues raised in the proposed grounds of appeal.
RELEVANT PRINCIPLES
A very comprehensive and instructive overview of child support in Australia is set out in Australian Family Law, Vol 2, Family Court Practice: Lexis Nexis Butterworths at [115]. In summary, child support is governed by the Family Law Act 1975 (Cth), (“the Family Law Act”) the Registration & Collection Act and the Assessment Act. All children born on or after 1 October 1989 are covered by the administrative assessment provisions in the Assessment Act.
Under the formula assessment, the amount of child support is assessed in accordance with a legislative formula set out in Part V of the Assessment Act. The Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) introduced a new formula. The formula takes the income of both parents, the carers of children and the costs of the children, based on a table in the legislation. The assessment system makes provision for child support assessments to be varied administratively in a number of circumstances.
The Assessment Act sets out a number of grounds on which parents can apply for a departure from the assessment. The first step in the departure process is an administrative review by a Senior Case Officer from the Child Support Agency. Court proceedings may be instituted only after the administrative review and objection proceedings contained in the Registration & Collection Act have been followed.
Under Part VIIA of the Assessment Act, the Registrar can make a determination to depart from the provisions of the Act relating to administrative assessments of child support for a child. The grounds for deciding whether to make a determination are the same as a court uses in deciding whether to make an order under Division 4 of Part VII. Under s 80 of the Registration & Collection Act certain persons can object to a decision to make or refuse to make a determination under Part VIA of the Assessment Act.
Section 89 of the Registration & Collection Act provides that a person may apply to the SSAT for a review of certain identified decisions by a Registrar. The majority of child support objection decisions, including objections about changes of assessment decisions, made after 1 January 2007 will be reviewed by SSAT.
Section 90 of the Registration & Collection Act provides that an application for review must be made within 28 days of notification of the decision on the objection. Section 91 of the Registration & Collection Act provides that a party may apply to the Executive Director of the SSAT for an extension of time and if such an application is made it is dealt with pursuant to s 92 of the Registration & Collection Act.
Section 110B of the Registration & Collection Act provides that a party to a proceeding before the SSAT under Part VIIA may appeal to a court having jurisdiction under the Registration & Collection Act on a question of law from any decision of the SSAT in that proceeding. The section makes it clear that appeals from the SSAT to a court may be made only on a question of law: see LDME v JMA (SSAT APPEAL) (2007) 38 Fam LR 132 at [23]-[33] per Halligan FM.
Section 103Z of the Registration & Collection Act provides that jurisdiction under the Act is conferred on the Family Court, the Federal Magistrates Court and certain State and Territory Courts.
Section 110C of the Registration & Collection Act deals with time limits for instituting appeals and provides in s 110C(1)(a)(i) that an appeal must be instituted in a court within the time prescribed by the applicable Rules of Court.
Section 107A(1)(a) of the Registration & Collection Act provides that an appeal lies, with leave of the Family Court, to the Family Court from a decree of the Federal Magistrates Court exercising original jurisdiction under the Act. Section 107A(2) provides that the jurisdiction in relation to such an appeal is to be exercised by the Full Court unless the Chief Justice of the Family Court considers it is appropriate for the jurisdiction to be exercised by a single judge.
Rule 22.13 of the Rules provides:
Filing draft index to appeal books
(1) This rule applies to an appeal that is not an appeal from a court of summary jurisdiction other than a Family Law Magistrate of Western Australia.
(2) The appellant must file a draft index to the appeal book within 28 days after:
(a) filing the Notice of Appeal; or
(b) the date when the reasons for judgment that relate to the order the subject of the appeal are issued (being the date of the certificate of the Associate to the Judicial Officer that appears on the published reasons for judgment).
(3) If the appellant fails to comply with subrule (2), the appeal is taken to be abandoned.
Note 1 A party may apply for an extension of time (see rule 1.14).
Note 2 See rules 22.19 and 22.20 for what must be included in the appeal books.
Note 3 A document that is filed must also be served on each party to the appeal (see rule 22.04).
Rule 1.14 of the Rules provides that:
(1)A party may apply to the court to shorten or extend a time that is fixed under these Rules
(2)A party may make an application under sub rule (1) for an order extending a time to be made even though the time fixed by the rule has passed.
(3)A party who makes an application under sub rule (1) for an extension of time may be ordered to pay any other party's costs In relation to the application.
Section 107A(9)(d) of the Registration & Collection Act provides that an application to reinstate an appeal under s 107A(1), that because of the “standard Rules of Court” was taken to have been abandoned, may be heard and determined by a single Judge or by a Full Court of the Family Court. The term “standard Rules of Court” is defined in s 4(1) of the Registration & Collection Act as having the same meaning as under the Family Law Act.
Without setting out in full the precise terms of the relevant rules I also observe that r 1.04 of the Rules provides that the “main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Rule 1.06 provides how the court must apply the Rules to promote the main purpose, and actively manage each case. Rule 1.07 provides that to achieve the main purpose, the court applies the Rules in a way that addresses each of the matters set out in paragraphs (a) to (f). Rule 1.08 deals with the responsibility of parties and lawyers in achieving the main purpose.
I observe that in Aon Risk Services Ltd v Australian National University (2009) 258 ALR 14 the High Court considered the approach to be taken in relation to applications for amendment and in particular considered r 21 of the Courts Procedures Rules 2006 (ACT) which states the purposes of the said Rules. I refer to the joint reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92]-[103] and [114]. Although no submissions were made in relation to this case, in my view it could be said that “a just resolution of proceedings remains the paramount purpose of [r 1.04 of the Rules]; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated”: per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98].
In dealing with applications for extension of time, the decision often relied upon is that of McHugh J in Gallo v Dawson (1990) 93 ALR 479. His Honour said at 480:
That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. 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: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v.Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
See also McMahon and McMahon (1976) FLC 90-038; Casson and Casson (1988) FLC 91-962; Tormsen and Tormsen (1993) FLC 92-392; Prowse v Prowse (1994) 18 Fam LR 348 at 365 and OP v HM (2002) 29 Fam LR 251 at [191.
In Joshua v Joshua (1997) FLC 92-767 Lindenmayer J said at 84-440:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court's satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant's delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. In that regard see also McMahon and McMahon (1976) FLC 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC 92-392.80.
REASONS OF THE FEDERAL MAGISTRATE (APPEAL PROCEEDINGS)
A useful summary of the reasons of the Federal Magistrate appears in the written submissions of the Child Support Registrar. In her reasons Federal Magistrate Sexton first dealt with the three constitutional arguments raised against the Assessment Act (as it stood on 18 December 2000) and each argument was rejected.
At [41] – [45] of her reasons the Federal Magistrate dealt with the Father’s argument that s 98C(2) and (3) of the Assessment Act, which empower the Child Support Registrar to make departure determinations, confer federal judicial power on the Child Support Registrar, contrary to Ch III of the Constitution, and concluded that it was “without merit”.
At [46] – [49] of her reasons the Federal Magistrate dealt with the Father’s argument that s 98C(2) and (3) of the Assessment Act provide for the acquisition of property other than on just terms contrary to s 51(xxxi) of the Constitution and found that it failed. Her Honour accepted the Child Support Registrar’s submission that the Assessment Act fell outside s 51(xxxi) as it was not directed towards the acquisition of property.
At [51] – [54] of her reasons the Federal Magistrate dealt with the Father’s argument that the Child Support Registrar's assessment of 'earning capacity' was invalid, on the basis that it was made in the absence of a properly conducted hearing with regard to the rules of evidence. The argument was rejected because there is no constitutional guarantee to procedural fairness (or due process) in all cases.
The Federal Magistrate then at [55] – [117] dealt with what are identified in the written submissions of the Child Support Registrar as the non-constitutional grounds of appeal, noting at [59] that an 'appeal' from the SSAT to the Federal Magistrates Court must be on a question of law. Her Honour found that the ten grounds of appeal contained in the Amended Notice of Appeal mostly alleged errors of fact. Other grounds that arguably raised questions of law were rejected.
The Federal Magistrate also noted at [74] – [79] that the Father appeared to abandon the non-constitutional grounds at the hearing.
In the written submissions of the Child Support Registrar it was observed that the non- constitutional grounds raised in the proceedings below do not appear to be raised in the present proceedings, and so were not dealt with in the submissions.
SUBMISSIONS
In the written submissions of the Father, which were filed on 2 October 2009, there are two matters raised. The first could be described as an explanation for the delay. The second appears to be part of what was termed in discussion the conspiracy theory.
As to the first matter, on behalf of the Father it was submitted that when the Notice of Appeal was presented for filing in the Appeals Registry on 6 August 2009 the Appeals Registry accepted the Notice of Appeal and the accompanying documents, without sealing them but rather retaining them for the decision of the Appeals Registrar whether to authorise the filing. It was submitted that the standard practice of the Appeals Registry is either to immediately seal and file the documents in the presence of the person presenting them for the filing or retaining the documents for the Appeals Registrar to decide whether to authorise the filing, in which case a receipt for the document is issued to the person presenting the documents for filing. It was submitted that it is not uncommon that the Appeals Registrar, for various reasons, refuses to allow the filing of the documents. It was submitted that therefore, it must be reasonable to assume one should not start working on the remaining parts of the appeal process until such time as the documents are sealed and filed by the Appeals Registry and sealed copies returned to the party that filed them. In this case sealed copies of the Notice of Appeal were sent by letter dated 10 August 2009.
It was submitted that it would also be reasonable to assume that the deadlines for subsequent actions in the appeal would need to be delayed by the time delay occasioned by the Appeals Registry's withholding of the documents. It was submitted that one would also have to immediately allow a three day delay, since the withheld documents, after being accepted and sealed, are mailed to the party.
It was submitted that in this case the delay was only about five days, even though the filing date on the Notice of Appeal shows 6 August 2009. It was submitted that if the true time of the filing of the Notice of Appeal is taken into account, with three days added for the return of the sealed copies by mail, the attempted filing of the appeal book index on 7 September 2009 would have been within the specified 28 days.
As to the second matter raised in the written submissions of the Father, it is submitted that if the series of orders made in the Federal Magistrates Court leading to the orders the subject of the appeal are considered it can be seen that the orders of 10 June 2008, 19 August 2008 and 16 September 2008, all show the Father as the applicant and the Child Support Registrar as the only respondent. However without any application filed in the Federal Magistrates Court, and without any order joining the Mother as a second respondent, the Mother appears on the face of the orders of 25 November 2008, and all the subsequent orders, as the “second respondent”.
It was submitted that at one of the subsequent hearings the legal representative for the Father raised the issue of the Mother being purportedly joined as the second respondent without ever filing any application and without an order for her joinder ever being published. It was submitted that the Federal Magistrate stated that she had given leave to the Mother to "intervene" in the proceedings. The Mother did not appear in person or by a legal representative at the final hearing on 25 March 2009, but sent an affidavit sworn the same day being the affidavit of 23 March 2009.
It was submitted that in paragraphs 25-33 of her affidavit the Mother explains her reasons for filing the affidavit and for not attending at the proceedings. The Mother also refers to her "representation" emailed to the Associate to the Federal Magistrate. It was submitted that the Mother appears not to be sure whether she was given leave to intervene or to be joined as the second respondent. It was submitted that in any event, the Mother appearing on the face of the orders of the Federal Magistrate is the result of some private communication between the Mother and through the Associate to the Federal Magistrate. It was submitted that the Father was “not copied to that communication and is entitled to apprehending that the whole process has become infected by an unlawful interference in the proceedings”.
It was submitted that it was strongly suspected that the reason for this unlawful joinder of the Mother to the proceedings was for the purpose of the Mother being able to claim legal costs from the Father. It was submitted that the Mother also refers to her private communication with the Child Support Registrar. Yet, in her closing remarks in the Mother’s affidavit (paragraph 31) she complains about the “abuse of process" by the Father.
It was submitted that thus the second reason for the delay in filing of the appeal book index was to wait and see the outcome of the cost application hearing on 7 September 2009. It was submitted that, as expected, the Father was ordered to pay the cost of the Child Support Registrar and the Mother. It was submitted that the action of all those involved, including the Federal Magistrate, “deserve a strong condemnation. Will there ever come a time when one will be able to walk into a Family Law court without looking over his or her shoulder for acts of a kind just described?”
The Child Support Registrar submitted that an extension of time should not be granted on the basis that there are no substantial issues to be raised on appeal. Further, there have been no adequate reasons provided by the Father to explain the delay.
As to the first matter raised by the Child Support Registrar, very succinct and persuasive submissions were made in relation to the proposed grounds of appeal and I am going to repeat most of what was submitted.
In relation to the first ground of appeal it was submitted that there are two parts to the ground. The first part concerns judicial power and the second part was described as the process arguments.
In relation to the judicial power argument it was submitted that the Australian Constitution requires a separation of the judicial power of the Commonwealth from the executive and legislative power of the Commonwealth. Section 71 of the Constitution confers the judicial power of the Commonwealth on the High Court, other federal courts and other courts invested by the Parliament with federal jurisdiction. Only the courts stipulated in s 71 of the Constitution can exercise the judicial power of the Commonwealth: R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254. Judicial power is generally described as the power to decide controversies, between parties, about existing rights or liabilities, in circumstances where the determination is binding, authoritative and immediately enforceable: Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357 per Griffith CJ.
It was submitted that in Luton v Lessels (2002) 210 CLR 333, the High Court unanimously held that, in authorising the Child Support Registrar to make assessments and determinations and perform other acts in the collection and application of child support payments, the Assessment Act and Registration & Collection Act did not vest the judicial power of the Commonwealth in the Child Support Registrar contrary to Ch III of the Constitution. The Child Support Registrar did not determine existing rights and obligations but created new rights and obligations addressed to the future. Further the Child Support Registrar could not enforce assessments or determinations, and the Child Support Registrar's decisions were not conclusive: at [22]-[24] per Gleason CJ, McHugh J agreeing, [67], [76]-[77] per Gaudron and Hayne JJ, [126]-0331 per Kirby J; [194], [198]- [202] per Callinan J. Specific reference was made to s 98C and the provisions of Part 6A: at [20] per Gleason CJ, [62], [71] – [74] per Gaudron and Hayne JJ, and [161] per Callinan J.
It was submitted that attempts to limit or distinguish Luton v Lessels have consistently failed: see W v Child Support Registrar [2006] FamCA 598; FLC 93-273 at [71]-[72] per Finn, May and O'Reilly JJ; Whittaker v Child Support Registrar [2009] FCA 188 at [90]-(91] per Lindgren J. It was submitted that the High Court's decision “forecloses any constitutional challenge”: Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] per Spender, Cooper and Kiefel JJ.
In conclusion it was submitted that the Father’s argument that the Assessment Act confers judicial power on administrators (i.e., the Child Support Registrar and delegates) was correctly rejected by the Federal Magistrate.
In relation to the due process argument it was submitted that the Father appears to complain that the Child Support Registrar's assessment could not have been made without any hearing, inquiry or investigation having full regard to the rules of evidence: see s 98H(4) of the Assessment Act. It was submitted that no constitutional argument is particularised.
It was submitted that insofar as the Father is asserting that the child support legislation is invalid because of an alleged failure to accord natural justice and due process, the content of the allegation is not established. It was submitted that in any event, even in relation to judicial rather than administrative proceedings, Ch III of the Constitution does not contain a right of due process: Thomas v Mowbray (2007) 233 CLR 307 at [111] per Gummow and Crennan JJ; Kruger v Commonwealth (1996) 190 CLR 1 at 61 per Dawson J; and does not include a constitutional guarantee of procedural fairness in all cases: see the cases cited in Hussain v Minister for Foreign Affairs (2008) 169 FCR 241 at [70]-[146] per Weinberg, Bennett and Edmonds J.
In conclusion it was submitted that the Father’s arguments were also correctly rejected by the Federal Magistrate.
In relation to the second ground of appeal it was submitted that s 51(xxxi) of the Constitution empowers Parliament to make laws with respect to “the acquisition of property on just terms from any ... person for any purpose in respect of which the Parliament has power to make laws”. It was submitted that any law that is properly characterised as a law with respect to the acquisition of property must provide just terms to the persons whose property is compulsorily acquired. Otherwise the law will be invalid.
It was submitted that the legislation sought to be impugned clearly falls outside s 51(xxxi) of the Constitution: Gould and Gould; Swire Investments Ltd (1994) FLC 92-434 per Nicholson CJ and Finn J at 80,458 and Fogarty J at 80,443-80,448; (1993) 115 FLR 371 at 374 per Nicholson CJ and Finn J and 396-400 per Fogarty J.
It was submitted that s 51(xxxi) of the Constitution does not apply to a law where an acquisition of property is “a necessary or characteristic feature of the means which the law selects to achieve its objective and the means selected are appropriate and adapted to achieving an objective within power, not being solely or chiefly the acquisition of property”: Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155 at 179-181 per Brennan J. It was submitted that s 51(xxxi) “does not abstract the power to prescribe the means appropriate and adapted to the achievement of an objective falling within another head of power where the acquisition of property without just terms is a necessary or characteristic feature of the means prescribed”: Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at [98] per Gleeson CJ and Kirby JJ. It was submitted that is the rationale for decisions that laws providing for the imposition of a tax, the compulsory payment of provisional tax, the seizure of the property of enemy aliens, the sequestration of bankrupts' property, the forfeiture of prohibited imports or the exaction of fines and penalties are not affected by s 51(xxxi): Mutual Pools at 178. It was submitted that the Assessment Act is supported by each of s 51(xxi) (marriage power), s 51(xxii) (divorce and matrimonial causes), s 51(xxxvii) (State reference power), s 51(xxxix) (incidental power) and s 122 (territories power) of the Constitution: see generally Luton v Lessels (supra) at [6] per Gleeson CJ and [91]-[92] per Kirby J. The purpose of the Assessment Act was described by Gleeson CJ in Luton v Lessels (supra) as follows:
The legislative scheme
4.The objects of the Assessment Act are set out in s 4. The principal object is to ensure that children receive a proper level of financial support from their parents. To that end, the Act provides for a level of support to be determined in accordance with legislatively fixed standards, and permits carers of children to have the level readily determined without the need to resort to court proceedings.
5.There is an office of Child Support Registrar established by s 10 of the Registration and Collection Act. An application for administrative assessment of child support may be made, to the Registrar, under Pt 4 of the Assessment Act. Such an assessment is made in accordance with a statutory formula, unless the Registrar determines, or a court orders, that the provisions relating to administrative assessment of child support should be departed from (Assessment Act s 35). A parent's liability to pay child support arises on the acceptance by the Registrar of an application (s 31). The making of an assessment gives rise to a debt owing by the liable parent to the carer who is entitled to child support; the debt may be recovered in a court of competent jurisdiction (s 79).
6.It may be observed that, although the legislation is enacted in furtherance of a clearly defined public policy, it creates a distinctly personal liability. The natural and moral obligation of a parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt, calculated in accordance with the Assessment Act, owing by a parent to a carer of the child. Although it is not directly relevant to the questions raised, the legislation was enacted following a referral of matters by a number of States, and is supported by the powers conferred by s 51 (xxii), (xxxvii) and (xxxix) and s 122 of the Constitution.
7.The principal objects of the Registration and Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (s 3). Those objects are achieved by a system of registration and enforcement. The scheme is available to a carer who wishes to take advantage of it. Some carers may not. They can rely on private enforcement if they wish. If a liability has arisen under a child support assessment, it may be registered under the Registration and Collection Act (s 17). The effect of registration is that the carer is no longer entitled to enforce payment of the liability and, instead, there is a debt owing by the liable parent to the Commonwealth (s 30). The carer entitled to child support becomes entitled to payment of an amount equivalent to that collected by the Commonwealth from the liable parent or on account of that parent's liability (s 76). The debt owed by the liable parent to the Commonwealth must be paid in the manner prescribed by the Act, and may be collected from certain debtors of the parent. Amounts collected are paid into, and disbursed to carers out of, the Consolidated Revenue Fund. The Commonwealth does not benefit financially.
It was also submitted that a law will also not be characterised as a law with respect to the acquisition of property if the law is not directed towards the acquisition of property as such but is instead concerned with the adjustment of competing rights, claims or obligations of persons in a particular relationship or area of activity: Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181 CLR 134 at 160-161 per Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ. See, also Airservices Australia v Canadian Airlines International Ltd (supra) at [497], [501], [503] per Gummow J, Hayne J agreeing. It was submitted that the Assessment Act meets this description, as it is concerned with adjusting the competing interests of parents to a child. It was submitted that there is also some direct authority on point. In Mutual Pools & Staff Pty Ltd v Commonwealth (supra) at 202, Dawson and Toohey JJ gave the Assessment Act as a 'clear' example of a law which does not infringe s 51(xxxi).
In conclusion, it was submitted that the Assessment Act falls outside s 51(xxxi) of the Constitution and that there is no substance to the proposed second ground of appeal.
It was drawn to my attention that after the hearing before Federal Magistrate Sexton, in Neetmanski v Child Support Registrar [2009] FMCAfam 200, Federal Magistrate Halligan rejected a similar challenge to the Assessment Act under s 51(xxxi) of the Constitution.
In the third ground of appeal the Father complains that the Mother was joined as second respondent in the proceedings after a private communication between the Mother and the Federal Magistrate or her Associate. It was submitted by the Child Support Registrar that in fact, as the Federal Magistrate at [24] - [27] observed, counsel for the Mother sought leave to appear on 25 November 2008 and leave was granted. It was submitted that there is therefore no substance to this ground.
On behalf of the Child Support Registrar it was submitted that in any event, issues relating to the joinder of the Mother in the proceedings are not relevant to the orders made by Federal Magistrate Sexton on 10 July 2009, except in so far as the Mother was given an opportunity to make an application for costs (order 4). It was submitted that whatever the formal status of the Mother in the proceedings, the Federal Magistrates Court has power to order costs in the favour of non-parties under s 117(2) of the Family Law Act, especially where the non-party has participated in the proceedings as if they were a party: Hartnett v Sampson (Costs) [2007] FamCA 1456 at [16]-[31] per Benjamin J.
CONCLUSION
Ordinarily, in the absence of any other relevant matters, it could be anticipated that leave would be granted where the delay was only three or four working days and there was some explanation for the delay, even if somewhat implausible. However in this case, in considering the explanation for the delay, I take into account that the Father had legal representation when the Notice of Appeal was filed or lodged on 6 August 2009 and the lawyers were aware that the time for filing the appeal index commenced to run as and from that date irrespective of whether or not at that time a seal was attached to the Notice. In any event, then in the letter of 10 August 2009 very clear and unequivocal notice was given that the appeal index had to be filed on or before 3 September 2009. If the lawyers considered that in the circumstances it was from that date that time ought to run or that in any event more time was needed then an application should have been immediately made for an extension of time. But that did not happen. Further, having considered the documents described in the appeal index filed on
10 September 2009 it is difficult to imagine why further time would have been required.
I have difficulty accepting the explanation for the delay because in my view there is a deal of evidence from which the inference can be drawn that Mr Potkonyak did not intend to file the appeal index until on or after 7 September 2009 for reasons associated with the conspiracy theory. The second matter relied on by the Father in support of his application, in my view, has no relevance to anything that supports his application. However, as it transpires, it is relevant to the credibility of the explanation for the delay.
The allegation by the Father is that during the proceedings there have been private undisclosed communications between the Mother and Federal Magistrate Sexton. These are serious allegations. When I consider the affidavit sworn by Mr Potkonyak on 10 September 2009, the written submissions of the Father prepared by Mr Potkonyak and what Mr Potkonyak submitted to me, I am of the view that Mr Potkonyak was concerned to delay until on or after 7 September 2009, when the costs applications were fixed for hearing, disclosing that he proposed to include in the appeal index the emails that were ultimately included. During his submissions to me Mr Potkonyak said: “the relevance is that as expected the joinder of [the Mother] was for no other reason but that she could claim costs and the costs hearing was set for Monday 7th September and I wanted to see the outcome of that proceeding”.
The inference I draw is that knowing the appeal index had to be filed on or before 3 September 2009, and knowing that the costs applications were fixed for hearing on 7 September 2009, Mr Potkonyak never intended to file the appeal index by the due date. Thus I reject the explanation for the delay.
In relation to the merits of the proposed appeal I accept and adopt the submissions on behalf of the Child Support Registrar. In my opinion, the grounds of appeal are futile.
There is a further important matter. On behalf of the Child Support Registrar I was told that it is not contended that any prejudice would be caused to the Child Support Registrar by granting the application. I have some difficulty with this admission.
In Aon Risk Services Ltd v Australian National University (supra) French CJ said at [5]: “Moreover the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system”. The Chief Justice said at [23]: “ … the adversarial system has been qualified by changing practices in the courts directed to the reduction of costs and delay and the realisation that the courts are concerned not only with justice between the parties, which remains their priority, but also with the public interest in the proper and efficient use of public resources”. The Chief Justice also said at [27] that “…the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretion to amend or adjourn”. In joint reasons Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [113]: “It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings”.
When hearing submissions in relation to costs I was informed by Mr Potkonyak that the Father has no assets, is in receipt of a pension and has recently been discharged from bankruptcy. This submission was made in support of a contention that the Husband could not satisfy any order for costs. The Father is seeking to agitate issues in relation to the constitutional validity of provisions of the Assessment Act in 2000, notwithstanding that such issues have been addressed from time to time by various authorities. However the Father does not point to any practical outcome of the proceedings so far as his interests are concerned. For example, the Father does not contend that there are enforcement proceedings against him for recovery of child support obligations or that if he was ultimately successful he would be entitled to some form of reimbursement. In other words he does not agitate any prejudice to him if the application was refused.
On the other hand, since 2007 the public cost of the proceedings to date has undoubtedly been significant. There have been the matters that had to be dealt with by the Child Support Agency. Then there were proceedings before the SSAT, the Federal Magistrates Court and the Family Court. I also take into account the history of the proceedings in the Federal Magistrates Court. In my view, in the circumstances of this case, the public interest cannot be ignored.
In all the circumstances, I am satisfied that the application by the Father should be dismissed and I propose to so order.
I should add that it is troublesome that in his affidavit of 10 September 2009 Mr Potkonyak not only made serious allegations of misconduct but appears to at least in part be basing his contentions on his own personal experience as a party to proceedings in the Family Court.
COSTS
I also heard submissions in relation to costs. The Child Support Registrar sought costs irrespective of the outcome. Mr Potkonyak informed me that he is acting pro bono for the Father. However, in the event that the application was successful the Father sought an order for costs and in the event that the application was dismissed I was informed that the Father would not have the financial capacity to satisfy an order.
The Child Support Registrar seeks an amount of $3,363.55. I was provided with a schedule which shows how this amount is made up. No submissions were made on behalf of the Father in relation to the amount of costs.
The application by the Child Support Registrar is made pursuant to s 117 of the Family Law Act: see s 105 of Registration & Collection Act.
In the written submissions of the Child Support Registrar I was referred to the reasons of Federal Magistrate Halligan in Neetmanski v Child Support Registrar (No 2) [2009] FMCAfam 430, at [15], which I need not repeat. I was also referred to the reasons of the Full Court (Ellis, Kaye and Mullane JJ) in Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641, in which the Full Court cited with approval (at [115]) various other considerations discussed by Jordan J in exercising the discretion under 117(2) (see s 117(2A)(g)) namely:
·It could well be argued that the proceedings were necessitated by the failure of the respondent to comply with previous requirements relating to administrative assessments ...;
·the proceedings should be more properly perceived as being civil proceedings between the Commonwealth as a third party and the respondent as a citizen, rather than as between parties to a marriage or parties to a relationship covered by the general philosophy of the Family Law Act, which is to the effect that each party should bear their own costs;
·costs orders are frequently made in the civil arena when there is no apparent immediate capacity to meet the orders for costs; and
·it would be inappropriate if the taxpayer was required to bear the entire burden of this exercise.
In summary, the Father has been wholly unsuccessful and thus the Child Support Registrar has established a justifying circumstance as required by s 117 of the Family Law Act. I also take into account the matters discussed by the Full Court in Hendy v Deputy Child Support Registrar (supra).
The only matter of substance submitted on behalf of the Father was the contention that he does not have the financial means to satisfy an order. However the Child Support Registrar submitted, and I accept, that there is no evidence that the Father could not afford to pay costs.
In all the circumstances, I propose to make an order that the Father pay the costs of the Child Support Registrar which costs I assess in the sum of $3,363.55.
I certify that the preceding one hundred and twenty seven (127) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court of Justice O’Ryan.
Associate:
Date: 12 October 2009
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