MALAK & MAIRIE - [2011] FamCAFC 134

FAMILY COURT OF AUSTRALIA

MALAK & MAIRIE

[2011] FamCAFC 134

FAMILY LAW - APPLICATION FOR LEAVE TO APPEAL – father seeking leave to appeal against orders made by consent in relation to child support arrears – mother seeks that father’s application and proposed appeal be dismissed – father’s application for leave to appeal and proposed grounds of appeal are in identical terms – whether father afforded procedural fairness – where father relies on paragraphs 1 and 3 of the Litigants in Person Guidelines – father unrepresented at hearing, mother represented by counsel – application before the court was application filed by the mother to enforce payment of child support arrears – enforcement summons listed before Federal Magistrate in July 2010 in a busy duty list – father faxed to chambers the day before the hearing an Application in a Case – Federal Magistrate refused to receive the application as it had not been properly filed and she considered it not properly before the Court – matter stood down for negotiations to take place – consent orders agreed and made – in the circumstances of the case father was afforded procedural fairness – Federal Magistrate’s robust approach justified – no basis established for obtaining leave to appeal – no error of principle made by the Federal Magistrate which affects the father’s substantive rights – application for leave to appeal and Notice of Appeal dismissed.

FAMILY LAW - COSTS – governed by s 117 of the Act – mother in a poor financial position to which father’s failure to pay child support has contributed – counsel for the mother sought costs on an indemnity basis – father opposed any order for costs – despite father’s alleged impecuniosity satisfied there should be an order for costs in favour of the mother – father wholly unsuccessful in his application for leave – not persuaded that circumstances are “special” or “exceptional” to justify indemnity costs – if not agreed costs to be assessed on a party/party basis.

Family Law Act 1975 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth) – s 107A

Allesch v Maunz (2000) 203 CLR 172
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248
Forbes & Bream [2010] FamCAFC 6
Gilmour and Gilmour (1995) FLC 92-591
Hendy v Deputy Child Support Registrar and Anor (2001) 27 Fam LR 641
JEL and DDF (No 2) (2001) FLC 93-083
Munday v Bowman (1997) FLC 92-784
Re F : Litigants in Person Guidelines (2001) FLC 93-072
Rutherford and Rutherford (1991) FLC 92-255
Stead v State Government Insurance Commission (1986) 161 CLR 141
Yunghanns & Ors v Yunghanns & Ors; Yunghanns (2000) FLC 93-029

APPLICANT:

Mr Malak

RESPONDENT:

Ms Mairie

FILE NUMBER:

MLC

2355

2010

APPEAL NUMBER:

2010

DATE DELIVERED:

21 June 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

17 November 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: MALAK & MAIRIE [2011] FamCAFC 134
Case: [2011] FamCAFC 134
Decision Date: 21 June 2011

CaseChat Overview and Summary

The applicant, a father, sought leave to appeal against orders made by consent in the Federal Magistrates Court in relation to child support arrears owed to the respondent, the mother. The mother opposed the application and sought that it be dismissed. The Federal Magistrate had refused to receive the father's application for leave to appeal as it had not been properly filed and considered it not properly before the Court. The matter was stood down for negotiations to take place and consent orders were agreed and made.

The father argued that he had not been afforded procedural fairness and relied on paragraphs 1 and 3 of the Litigants in Person Guidelines. The Federal Magistrate was unrepresented at the hearing, whereas the mother was represented by counsel. The court considered whether the father was afforded procedural fairness and if the Federal Magistrate's robust approach was justified. The court found that the father was afforded procedural fairness and there was no basis for obtaining leave to appeal. The Federal Magistrate's approach was justified and there was no error of principle made by the Federal Magistrate which affected the father's substantive rights.

The court dismissed the father's application for leave to appeal and the Notice of Appeal. The mother was granted costs on an indemnity basis due to the father's failure to pay child support which contributed to her poor financial position. The father opposed any order for costs, but the court found that there should be an order for costs in favour of the mother. If the parties could not agree on the costs, they were to be assessed on a party/party basis.

The orders of the court were that the father's application for leave to appeal and the Notice of Appeal filed on 23 August 2010 be dismissed and that the father pay the costs of the mother as agreed and in default of agreement as assessed.

Orders

Orders of the court

The application for leave to appeal and the Notice of Appeal filed on 23 August 2010 be dismissed.

The father pay the costs of the mother as agreed and in default of agreement as assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

When the matter resumed on the afternoon of 28 July 2010, the mother had obtained an updated certificate, pursuant to which the amount due and payable by the father remained unchanged. However, the parties had reached agreement and the Federal Magistrate made orders by consent in the following terms: IT IS DECLARED: That as at 28 July 2010 the child support debt owing by the Respondent to the Applicant in relation to the children [A], [B] and [C] stands in the sum of $17,375.14.BY CONSENT IT IS ORDERED:DECLARATION OF COURT:1. That on or before the 29 November 2010 the [father] pay the [mother] the sum of $17,375.14 by way of child support arrears.2. That on or before the 29 November 2010 the [father] pay the [mother] the costs of this application fixed in the sum of $4,624.86.3. That upon such and simultaneous with, payment the [mother] provide the [father] with removal of the caveats lodged in the real property situate at Goulbourn [sic] and Moss Vale.4. That, at the same time, the [father] reimburse the [mother] for the cost of removing the caveats.5. That upon completion of the exchange, paragraphs 3 and 4 of the orders made at the Federal Magistrates Court at Melbourne on 16 June 2010 shall be discharged.6. There is liberty to the [mother] to seek to list this matter on short notice with respect to any further enforcement application and penalty interest will accrue on sums remaining unpaid. Such listing is to be before Ms Hartnett FM. Given that the orders under appeal were made by consent, no reasons for judgment were provided by the Federal Magistrate. Section 107A of the Registration and Collection Act provides that no appeal can be brought against an order made by a Federal Magistrate under the Act without leave. In Rutherford and Rutherford (1991) FLC 92-255 the Full Court (Ellis, Nygh and Wilczek JJ) held that to obtain leave the applicant must show an error of principle and/or the fact that the decision caused him a substantial injustice. In Gilmour and Gilmour (1995) FLC 92-591, the Full Court (Ellis, Finn and Maxwell JJ), after reviewing the authorities addressing leave to appeal in child support matters, said at 81,843:However, in granting leave for the reasons which we have in this case, we would not want to be taken as saying that the grounds upon which leave to appeal an order made under either of the Child Support Acts are necessarily the same as the limited grounds upon which leave will be granted in respect of an interlocutory decree under Section 94AA of the Family Law Act. Indeed, we would endorse the suggestions made in Bassingthwaite and Best that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities in relation to child support. In so doing we would, however, draw attention to the unreported decision of Conn v. Martusevicius (delivered in Melbourne on 9 June 1992) in which, in dismissing an application for leave to appeal pursuant to Section 102 of the Assessment Act, both Barblett D.C.J. and Nygh J. in separate judgments expressed the view that the same principles which apply to applications for leave to appeal under Section 94AA of the Family Law Act (being the principles stated in Rutherford) should apply to applications for leave to appeal under Section 102 of the Assessment Act.