Oleyar and Child Support Registrar
[2005] FMCAfam 736
•16 December 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OLEYAR & CHILD SUPPORT REGISTRAR | [2005] FMCAfam 736 |
| CHILD SUPPORT – Jurisdiction – reference to Yunghanns (1999) FLC 92-836 and requirement that Court to limited jurisdiction be satisfied that it has jurisdiction to make orders sought – where applicant seeks that application be dealt with in the absence of the respondence – where application was not filed at a time when relevant concurrent proceedings were on foot. COSTS – Case turns on its own facts. |
| Family Law Act 1975 (Cth) |
| McGuiness v Cowie (2002) FLC 98-018 Penfold 1980 FLC 90-800 Yunghanns (1999) FLC 92-836 |
| Applicant: | MILOSLAV OLEYAR |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLM 5561 of 2004 |
| Judgment of: | Walters FM |
| Hearing date: | 16 December 2005 |
| Date of Last Submission: | 16 December 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 16 December 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr O'Connor |
| Solicitors for the Applicant: | Mason Sier Turnbull |
| Counsel for the Respondent: | Mr Crowley |
| Solicitors for the Respondent: | Child Support Registrar |
ORDERS
The application filed 2 June 2005 and amended application filed 8 December 2005 be struck out.
The applicant pay the respondent’s costs fixed in the sum of $1,600.00 on or before 4.00 p.m. on 30 April 2006.
AND THE COURT NOTES THAT:
The matter be removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLM 5661 of 2004
| MIROSLAV OLEYAR |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
(Ex tempore)
Before the court this morning is the father's application in an amended form filed 8 December 2005. The respondent to that application is expressed to be the Child Support Registrar. A question has arisen as to whether the court has jurisdiction to deal with the application now before it.
In Yunghanns (1999) FLC 92-836, the Full Court of the Family Court of Australia reviewed the question of how courts of limited jurisdiction (such as the Family Court and this court) should deal with an issue of jurisdiction. Reading from the headnote (on page 85,697), the Full Court ─ after referring to previous authority ─ said:
“Before making orders in proceedings, including interlocutory orders, the Family Court of Australia as a court of limited jurisdiction must be satisfied (a) that it has jurisdiction to make those orders in the proceedings and (b) that it is appropriate to exercise that jurisdiction by making those orders on the facts of the case as then known to it.”
The Full Court continued ─ in the headnote, at least:
“The court always has jurisdiction to entertain proceedings for the purpose of and up to the point of deciding whether it has jurisdiction to make the orders sought in the proceeding.”
The headnote and (indeed the substantive part of the reported judgment) set out how a court should exercise its jurisdiction in that limited sense; that is, in determining whether it has power to deal with the substantive issues in the proceeding.
There is no difference between the Family Court of Australia and this court insofar as those statements of law are concerned. This court, like the Family Court of Australia, is a court of limited jurisdiction. This court, like the Family Court of Australia, has jurisdiction in relation to child support issues. That jurisdiction is established by law, and if the applicant is unable to demonstrate the court has jurisdiction, then clearly the proceedings cannot continue beyond this point.
Enforcement proceedings were commenced (on behalf of the child support registrar) against the father last year. The enforcement summons was filed on 7 July 2004. Its return date was 23 August 2004. The matter eventually came before Riethmuller FM on 28 September 2004, when his Honour declared that the father owed the applicant, being the child support registrar, the sum of just under $25,000.00 in respect of arrears of child support and late payment penalties.
The orders made by Riethmuller FM then set out certain enforcement provisions and the final order, being paragraph 10, reads that the enforcement summons filed on 7 July 2004 be withdrawn and removed from the list of cases awaiting final determination.
As a result of those orders, the proceedings were brought to an end. The court was functus officio.
The next relevant event in these proceedings occurred on 2 June 2005, when the father filed an application in this court in Dandenong. The application records the father as the applicant and the child support registrar as the respondent. The orders sought by the applicant are, firstly:
“The final order to be set aside and the re-heard (sic).”
An additional “order sought” is expressed to be:
“As attached.”
When I read the document expressed to be the application of the father, it is almost impossible to understand the nature of the application that he is making to the court. Clearly, the application is not in accordance with the rules of the court and is incomprehensible on its face. The return date for the application was 1 August 2005. The record reveals that there was no appearance by either party on that date, but that a minute of consent orders was provided to the court. The consent orders were signed by the father personally and dated 28 July 2005. They were also signed by a legal representative for the child support registrar.
The orders were clearly intended to enable the substantive issues raised in the father's application filed on 2 June 2005 to be dealt with properly and according to law. I shall refer to the provisions of the law in a moment. The orders are on the court record and I incorporate those in these reasons for judgment:
(1)That the Applicant forthwith sign all documents and so all such things necessary to release to the Respondent the sum of $7, 728.00, presently being held by the Office of the Sheriff
(2)That within seven (7) days of the date of these Orders, the Applicant complete and forward to the Child Support Agency an Application for Change of Assessment of child support for the child support period of the 2000 calendar year (“the Change of Assessment Application”).
(3)That the Applicant lodge any Objection to the decision by the Child Support Agency with respect to the Change of Assessment Application within fourteen (14) days of receiving notification of the said decision.
(4)That the lawyers for the Respondent cause to be served upon the lawyers for the Applicant a copy of the said decision in relation to the Change of Assessment Application forthwith upon that decision being made.
(5)That pending the outcome of the Change of Assessment Application and any Objection lodged in accordance with paragraphs 2 and 3 hereof, and subject to the Applicant complying with paragraphs 1, 2, 3 and 6 hereof, paragraphs 3 and 6 of the Orders made on 28 September 2004 be stayed.
(6)That until further Order the Respondent to continue to garnishee the Centreline payments to which the Applicant ins entitled, presently in the sum of $20.00 per month, pursuant to the provisions of the Child Support (Registration and Collection) Act1988.
(7)That the hearing in this matter scheduled for 1 August 2005 be adjourned and these proceedings be transferred to the Federal Magistrates Court of Australia at Melbourne for listings in the Child Support List of theatre Registry on 12 December 2005.
(8)Liberty to apply.
What is clear from paragraph 2 of those orders onwards is that the father was obliged within seven days from the date of those orders to make an application for change of assessment of child support for the period covering the 2000 calendar year, and furthermore, that he was to lodge an objection to any decision by the Child Support Agency (obviously being a decision in relation to which he felt aggrieved) within 14 days of receiving the relevant notification. The other orders were directed to ensuring that the matter could be brought back before this court on 12 December 2005.
For whatever reason, the father did not comply with the terms of the orders made by O'Dwyer FM, to which he had consented. I am advised that the reason why the orders were not wholly complied with (in that the objection was not lodged within the time frame set out in the order) is because the father could not be contacted by his solicitors. I have been given no reason as to why that might have been the case and, in my view, it is a problem in relation to which that the father needs to look to his own behaviour. It is not a problem that the court must deal with directly, and most certainly the child support registrar is not responsible for the father's failure to comply with the orders that were made by O'Dwyer FM.
The next event in the sequence is that on 8 December 2005 the father filed an amended application. In paragraph 1 of the amended application he seeks that there be a stay of the final orders dated 28 September 2005 pursuant to section 140 of the Child Support (Assessment) Act. The next order is to the effect that the father should be given further time to proceed with the change of assessment process. Paragraph 3 refers to such further or other order as the court deems appropriate.
When this matter came before me on the return date, which was 12 December 2005, counsel for the father advised the court that the father wished to have the matter dealt with as soon as possible. He did not wish to go through the change of assessment process, notwithstanding the terms of the amended application filed on his behalf a mere four days before the hearing. According to counsel for the father on
12 December, the father simply wanted the matter "over and done with".
The issue of jurisdiction was raised on 12 December 2005. In addition, the question of procedural fairness was raised. Given the state of the list, and the fact that ─ in essence ─ the child support registrar was taken by ambush in relation to the matters contained in the amended application, I stood the matter over to today, 16 December. Between 12 December and 16 December, it would appear that steps have been taken to forward to the mother copies of the relevant documents in these proceedings. The mother resides in New South Wales. I am told by counsel before me today that the mother has written to the child support registrar. Without going into the details of that letter - and I stress that I have not seen the letter - but both counsel concede that the mother opposes the father's application and seeks to be heard in relation to it. It would appear that she is also seeking to have the proceedings transferred to a court closer to her place of residence.
It needs to be said immediately that, irrespective of jurisdictional issues, there is a very clear problem that the father faces in relation to procedural fairness. The mother must be given the opportunity to be heard in relation to the substantive application (if the court has jurisdiction to hear it). I do not accept that she has been given such an opportunity. Irrespective of the issue of jurisdiction, I would have been minded to adjourn the proceedings to ensure that the mother was given the opportunity to be properly heard, and so that justice could be done. But the jurisdictional issue remains a live one.
Mr Crowley (for the child support registrar) has referred the court to section 110(1A) of the Child Support (Assessment) Act 1989.
I incorporate the provisions of that subsection in these reasons:
“A person may not appeal to a court under subsection (1) in relation to particulars unless:
(a)an objection to those particulars has been lodged under section 98X; and
(b)the Registrar has either disallowed the objection or has allowed it in whole or in part.”
Perhaps more relevant to the current application is section 116, and in particular, section 116(1A), which reflects or mirrors the provisions of section 110(1A). The father's counsel relies on section 115 and in particular, section 115C to found jurisdiction. He argues that the father's application itself empowers the court to exercise jurisdiction in relation to this matter.
In my opinion, it is clear beyond argument that neither application ─ that is, not the original application and not the amended application ─ was filed at a time when relevant concurrent proceedings were on foot. This case can be distinguished from McGuiness v Cowie (2002) FLC 98-018 because there is no application for lump sum child support. Indeed no relevant substantive application contained within the two documents to which I have referred serves to trigger section 115(c) of the Child Support (Assessment) Act.
It would indeed be a situation (as described by Mr Crowley) of the father seeking to haul himself up by his own bootlaces. That cannot be done. It is my view that section 115(c) does not apply, and patently does not apply, in the circumstances of this case. That the father must proceed down the track set out in one or other of the provisions to which I have referred – being section 110(1A), or perhaps more accurately, section 116(1A).
The matter is further complicated by the fact that this issue has already been determined by the court. O'Dwyer FM made orders on 1 August 2005 designed to overcome precisely this problem. It is the father who has failed to comply with those orders, and ─ in some way ─ now seeks to appeal or review them before me. I am not prepared to sit on appeal from consent orders made before O'Dwyer FM. Nothing has been presented to me by or on behalf of the father that would cause me to form the view that the orders made by O'Dwyer FM were wrong, or were somehow misconceived. No other ground of appeal (or reason for review) has been demonstrated.
The long and the short of the matter is that the father may well want the proceeding to be dealt with here and now, but what we want in our lives and what we get are frequently two different things. If the father wishes to have the substantive proceedings dealt with according to law, then he must ensure that he complies with the law, and with the orders and directions of courts designed to ensure that the law is put into effect. In every sense, the father is the author of his own misfortune in this case.
I am not persuaded, as I have indicated, that this court has jurisdiction to deal with either the application or the amended application. Section 140 of the Child Support (Assessment) Act itself requires that there be substantive proceedings on foot, and there are not. The situation could have been salvaged (perhaps) if the father had been prepared to abide by the orders that he sought in his amended application ─ so that he could at least be seen to be attempting to get the matter back on track. But it seems that the father does not want to do that.
In those circumstances, it is my view that the court does not now have jurisdiction in this case, and I propose to strike out the amended application filed on 8 December. It follows that the initial application (filed 2 June 2005) will also be struck out.
As far as the court is concerned, there are no extant proceedings before it. If the father wishes to seek further orders, then he is going to have to start again ─ and he is going to have make sure that he complies with the law.
Costs
Before the court is an application for costs made on behalf of the child support registrar. By virtue of section 100 of the Child Support (Assessment) Act, the issue of costs is to be dealt with by the application of section 117 of the Family Law Act. That section provides, amongst other things that - subject to certain considerations – each party to proceedings under the Family Law Act, and by extension under the Child Support (Assessment) Act, shall bear his or her own costs. To use computer terminology, that provision is the default setting. The High Court made it clear in the case of Penfold (1980) FLC 90-800 that the rule must give way if there are justifying circumstances found by the court such as to warrant the making of a costs order.
The matters that the court is obliged to take into account are set out in section 117(2A) of the Family Law Act. The first is the financial circumstances of each of the parties to the proceedings. The only relevant financial circumstances in an application such as this are those of the father, and it has not been suggested to me that the father does not have the capacity to pay the costs order sought ─ which amounts to $1600.00.
The next issue is whether any party is in receipt of assistance by way of legal aid, and again that is not a relevant consideration in the matter before me.
Section 117(2A)(c) requires the court to have regard to the conduct of the parties to the proceedings in relation to the proceedings; in other words, their conduct as litigants.
In the reasons which I delivered earlier today ─ inelegant though they were ─ I made it clear that the father's conduct as a litigant has been less than satisfactory. He has had opportunities to get his tackle in order (to use colloquialism). He has failed to avail himself of those opportunities, and has ─ in a somewhat petulant fashion ─ endeavoured to insist that the proceedings be dealt with by the court when, in my view, it was obvious to all involved that they could not be dealt with during this child support week.
Leaving aside the very obvious problem of jurisdiction, there is also the problem of the mother’s role as a party in the proceeding. The child support registrar is clearly not the correct respondent, and steps should have been taken at a much earlier stage to involve the mother and thereby avoid a potential injustice. I take into account the conduct of the father as a litigant in these proceedings.
The next factor is whether the proceedings were necessitated by the failure of a party to comply with previous orders of the court. Obviously the amended application ─ even though it was not pursued in the end ─ appears to have been filed because the father failed to comply with the consent orders made by O'Dwyer FM. This issue is closely related to the father's conduct as a litigant.
The next factor is whether any party to the proceedings has been wholly unsuccessful in the proceedings. The substantive departure application is not before me. I do not have jurisdiction to deal with it. The matter before me was wholly and solely a dispute as to whether the court has jurisdiction to deal with the application filed on behalf of the father, or perhaps more accurately, to make the orders that the father was seeking (which were not clearly set out in his amended application, or indeed in the initial application). The child support registrar very properly, in my view, agreed to the matter being stood over to review the situation and to see whether there might be some sensible and practical way forward. At the end of the day, the child support registrar has quite properly raised the issues of jurisdiction and procedural fairness, and has been successful in his submissions.
It follows that the father, has been solely unsuccessful – at least insofar as these preliminary proceedings are concerned. I say nothing about the merits of the substantive application. The difficulty that the father faces is that he has involved a party that should not have been involved, and he has failed to comply with court orders that would have enabled the matter to proceed properly and effectively at a later time (or even at this time, if they had been properly complied with).
The issue of offers is the next consideration. That is not relevant in this case.
The last consideration comprises such other matters as the court considers relevant. In my view, there are no other matters that are relevant in this case.
In my opinion, the two most important considerations are the conduct of the father as a litigant and the fact that he has been wholly unsuccessful in his attempts to demonstrate to the court that it has jurisdiction in this matter or that it should in some way continue to deal with it.
In those circumstances, I am of the view that there are indeed justifying circumstances such as would warrant the making of an order for costs. The amount claimed by the child support registrar, being $1600.00, is modest, and well within the scale applicable in this court. It follows that there will be an order that the father pay the child support registrar's costs fixed in the sum of $1600.00. The costs are to be paid by not later than 30 April 2006.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 10 March 2006
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