ONGAL & MATERNS
[2014] FamCA 409
•18 June 2014
FAMILY COURT OF AUSTRALIA
| ONGAL & MATERNS | [2014] FamCA 409 |
| FAMILY LAW – CHILD SUPPORT – Application for departure – parties restrained from filing further applications without first obtaining leave – consideration of s 117 – history of the matter - not just and equitable – no special circumstances exist – application for leave is dismissed. FAMILY LAW – PRACTICE AND PROCEDURE – Stay – father sought stay pending outcome of appeal – appeal would not be rendered nugatory – best interests of children – desirability in limiting frequency of changes – application for stay is dismissed. |
| Family Law Act 1975 (Cth) Child Support (Assessment) Act 1989 (Cth)s 98E, 99, 100, 111, 112, 117 |
| Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr Ongal |
| RESPONDENT: | Ms Materns |
| FILE NUMBER: | ADC | 2107 | of | 2007 |
| DATE DELIVERED: | 18 June 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 25 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | N/A |
| SOLICITOR FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | N/A |
| SOLICITOR FOR THE RESPONDENT: | In Person |
Orders
The Applications in a Case filed by the father on 27 February 2014 and 25 March 2014 are dismissed and removed from the active pending list.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ongal & Materns has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 2107 of 2007
Respondent And Ms Materns |
Respondent
REASONS FOR JUDGMENT
Introduction
On 25 March 2014 I reserved judgment on the father’s Application in a Case filed on 27 February 2014 and his oral application to stay paragraphs 1 to 11 of the Orders the Court made on 4 December 2013. The application for stay of the children’s orders is also set out in the Application in a Case filed by the father on that day 25 March 2014.
The Hearing
At the interim hearing before me on 25 March 2014 both the mother and father were unrepresented. The Application in a Case filed by the father on 27 February 2014 stated as the orders that the applicant father was seeking:
1. I ask that this be dealt with urgently in Chambers.
2.Under current parenting Order 10 of 4 December 2013 I seek leave to refile or reinstate with the Child Support Application filed 13 August 2013.
The Child Support Application filed on 13 August 2013 was contained in an Initiating Application (Family Law) filed by the father seeking final orders as follows:
1.I seek leave to depart from three child support assessment decisions that are outside 18 months but within seven years.
2.I seek leave to depart from the administrative decision of the Child Support Registrar made 23rd October 2006, for the child support period of 14th August 2006 until 29th February 2007, that set the fathers (sic) child support at $400 per month.
3.I seek leave to depart from the administrative decision of the Child Support Registrar made 23rd October 2006, for the child support period of 1st March 2007 to 27th August 2007 that set the fathers (sic) child support at $100K per annum.
4.I seek leave to depart from the departure decision made 15th May 2009 by Federal Magistrate Brown that set the fathers (sic) child support income at $60K per annum from 31st October 2008 until 31st December 2009.
5.I seek an order setting my child support amount at the legal minimum for all the affected periods.
6.I seek and order that grants costs of contact for the father since February 2005 and henceforth at $1600 per month, until the children are 18 years of age, on the basis of weekly travel to and from [Town W] to support contact with the children.
7.I seek repayment of costs ordered by FM Brown from the Legal Services Commission and I seek costs from the Child Support Agency for this proceeding as a result of the assessment, objection and correction failings by that agency.
The affidavit which is filed in support of his application for leave to “reinstate the Initiating Application” deletes paragraph 6 and 7 which were originally in the Initiating Application.
It also sought interim or procedural orders as follows:
1. I seek an extension of time in an appeal.
The significant document upon which the father relied for these applications were the two affidavits filed by him on 27 February 2014.
The mother opposed the orders sought by the father. The mother’s Application in a Case seeking leave to file an application to change paragraphs 3(a) and 3(b) of the Order of 4 December 2013 was the subject of further directions and was adjourned to 14 May 2014.
At the hearing on 25 March 2014 a Consent Order was made which provided:
SAVE AND EXCEPT in the case of emergency each of the parties give the other party seven days’ notice in writing with full particulars of any proposed treatment for any of the children.
Brief summary of background and history of proceedings
Proceedings between the parties commenced in 2007. Since then there have been various proceedings before the Federal Magistrates Court (as it then was) and this Court. There have been numerous judgments on various matters. At the time of the hearing on 25 March 2014 there were over 180 documents on the Court file.
The father was born in 1964 and is aged 50. In his Initiating Application filed on 13 August 2013 he gives his usual occupation as “full time carer”.
The mother was born in 1965 and is aged 48. The mother provides her occupation as “home duties” in her affidavit filed in February 2014.
The parties were in a relationship between 2000 and 2004. They were not married.
There are two children of the relationship L who was born in 2001 (now aged 12) and M who was born in 2004 (now aged 10).
The father currently resides in the metropolitan area of Adelaide. He gives his address for service as “c/- … [I Street], [Suburb H], SA 5…”. He gives this as his residential address in the Initiating Application filed in August 2013.
The mother resides, and has resided for some time, in Town W.
The considerable distance involved has a significant impact upon the travel arrangements and the children.
Court orders in relation to the parenting arrangements for the children L and M have been the subject of proceedings in the Federal Magistrates Court (as it then was) and this Court over a considerable period. Orders have been made by Judicial Officers setting out the terms of the parental responsibility and care arrangements for the children. Orders which were made on 27 February 2007 provided for the parties to have, what was then called, joint parental responsibility and for the father to spend significant time with the children.
The Consent Orders made by Justice Strickland on 27 February 2007 were varied by his Honour Justice Burr (as he then was) on 4 June 2008. For very detailed reasons which I gave on 4 December 2013 I made further orders which took into account the original Consent Orders, as varied by Justice Burr (as he then was) and at the same time made slight variations to ensure that the orders were set out in one document rather than requiring several documents to be accessed and read together.
The Order of 4 December 2013 is the subject of the appeal proceedings brought by the father. It is in relation to this appeal that the father seeks the stay of some of the orders pending the appeal. That order was varied by consent on 5 February 2014 and 25 March 2014.
There have also been many proceedings in relation to Child Support in various jurisdictions over a considerable period of time.
The Application in a Case filed by the father on 27 February 2014 seeks:
Under current parenting Order 10 of 4 December 2013 I seek leave to refile or reinstate and proceed with the Child Support application filed 13 August 2013.
Paragraph 10 of the Order of 4 December 2013 provides:
(2)The parties are restrained from filing any further Applications, Affidavits or other material in the Family Court of Australia without first obtaining leave of a Judge of this Court in the following manner:
(a)any such application for leave to file such material will, in the first instance, be listed for hearing before a Judge in chambers;
(b)any such application for leave is to be facilitated by the applicant party annexing to the material for which leave is sought to be filed a written application specifying with particularity the orders sought together with an affidavit setting out the basis for such orders and a written argument in support of the Court granting permission to allow such material to be filed;
(c)unless otherwise ordered by the court, any such application for leave shall not be served on the other party to the proceedings;
the Court shall thereafter deliver written reasons for its decision with respect to permission being granted or denied to file the relevant material.
Paragraph 10 of the Order of 4 December 2013 is a replication of previous orders which have been made in this Court.
Stay of the children’s orders
Applying the principles relevant to the application for a stay I note that the father must establish a proper basis for a stay in these circumstances. The appeal was lodged by the father on 2 January 2014.
It is clear that the mere filing of the appeal is not a basis upon which to simply grant a stay.
In relation to the bona fides of the father, the Court is aware that the orders in relation to the children are complex and that the father seeks to appeal the orders on various terms. There are however factors which may outweigh the apparent bona fides of the applicant in relation to the stay application. These include that the mother may wish to maintain the orders and the judgment.
One of the other factors to be considered is the risk that the appeal may be rendered nugatory if a stay is not granted. In this case the appeal would not be rendered nugatory. The orders may continue to apply until the appeal has been concluded. The orders may be changed if the appeal is upheld.
Whilst it is possible that the appellant has an arguable case in relation to the appeal, a significant factor in this matter is the desirability of limiting the frequency of changes in the children’s arrangements. Taking into account that the best interests of the children are a significant consideration, I am satisfied that the stay proposed by the father, which would require the parties to return to orders of this Court which were unsatisfactory and caused difficulties between the parents, would not be in the best interests of the children.
I therefore refuse to grant the stay.
Child Support Application
In the affidavit in support of his Application in a Case seeking leave to bring the proceedings in relation to Child Support, the father refers to, and annexes, page 3 of Justice Strickland’s reasons for judgment delivered on 16 December 2013 which was a judgment delivered in relation to an Application in an Appeal which had been filed on 26 November 2013. That amended Application in an Appeal was dismissed.
The ex tempore reasons for judgment delivered by his Honour on that date referred to the father’s Amended Application in an Appeal filed on 26 November 2013 which related primarily to the Orders made by Federal Magistrate Brown (as he then was) on 15 May 2009.
The judgment of Federal Magistrate Brown (as he then was) delivered on 15 May 2009 dismissed the father’s application for leave pursuant to s 111 of the Child Support (Assessment) Act 1989 (Cth), dismissed the father’s amended application filed on 12 November 2008 and made an order departing from the administrative assessment of child support payable to the mother by the father in respect of the children from 31 October 2008 until 31 December 2009.
In the judgment (being 50 pages of judgment delivered on 15 May 2009 after a hearing in November 2008) Federal Magistrate Brown (as he then was) refers to the proceedings having commenced on 24 April 2008.
The application with which his Honour was then dealing, was the father’s application filed on 12 November 2008 which sought orders to depart from a number of administrative assessments for child support for L and M, being “the period from 28 February 2005 to 25 April 2005, 14 August 2006 to 27 August 2007, 28 August 2007 to 27 August 2008 and 28 August 2008 thereafter.”
Because the orders were sought in proceedings that commenced on 24 April 2008 the father required the Court’s leave pursuant to s 111 of the Child Support (Assessment) Act 1989 (Cth) to proceed with the application.
In that judgment his Honour also deals with the mother’s Response to the Initiating Application. She also sought a departure from the relevant child support assessments for the period from 28 August 2007 until September 2009.
The father currently seeks leave to bring proceedings seeking leave to depart from child support assessments for the periods:
(1)14 August 2006 to 29 February 2007. (This period was referred to in paragraph 10 if Federal Magistrate Brown’s (as he then was) decision of 15 May 2009).
(2)1 March 2007 to 27 August 2007. (This is also a period referred to in paragraph 10 of the judgment of 15 May 2009).
(3)He seeks “leave to depart from the departure decision” of Federal Magistrate Brown (as he then was) on 15 May 2009 so far as it relates to the period from 31 October 2008 until 31 December 2009. (This is the specific order which Federal Magistrate Brown (as he then was) made on 15 May 2009 which fixed the father’s child support income for that period at $60,000 per annum).
The Law
A stay of Orders pending appeal
Rule 22.11 of the Family Law Rules 2004 (Cth) (“the Rules”) provides as follows:
Rule 22.11
Stay
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3)An application for a stay must be filed in the Registry in which the order under appeal was made and be heard by the Judge, Federal Magistrate or Magistrate who made the order under appeal.
The Full Court Decision of Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 dealt with the issues relevant to the application for stay of orders pending an appeal. At paragraph 18 the Full Court stated:
18.The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [No.1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
•the desirability of limiting the frequency of any change in a child’s living arrangements;
•the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
•the best interests of the child the subject of the proceedings are a significant consideration.
These principles were again set out in similar terms by the Full Court in the matter Cape & Cape [2013] FamCAFC 114 (see paragraph 21 of the judgment).
The law in relation to leave to depart from child support assessments
The father’s application is for leave to bring proceedings seeking leave to depart from child support assessment decisions made outside the 18 month period, but within seven years.
The Initiating Application was filed on 13 August 2013. The decisions referred to in the application were decisions made in October 2006 and May 2009.
The Child Support (Assessment) Act 1989 (Cth) sets out detailed provisions in relation to the assessment of child support based upon numerous matters. It also sets out particulars in relation to departures from administrative assessment.
Section 98E of the Act provides:
Section 98E
Registrar may refuse to make determination because issues too complex
If the Registrar is satisfied, after considering the application, that the issues raised by the application are too complex to be dealt with under this Part, the Registrar may:
(a)refuse to make the determination, without taking any further action under this Part; and
(b)recommend that application be made to a court having jurisdiction under this Act for an order under Division 4 of Part 7.
Section 99 of the Act provides that the Family Court of Australia has jurisdiction in relation to matters arising under that Act.
Section 100 of the Act provides:
Section 100
Application of Family Law Act
(1)The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Circuit Court Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:
(a)the proceedings were proceedings under Part VII of that Act; and
(b)the proceedings were proceedings instituted under Part VII of that Act; and
(c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and
(d)a decree made in the proceedings were a decree made under Part VII of that Act; and
(e)matters arising in the proceedings were matters arising under Part VII of that Act; and
(f)any other necessary changes were made.
(2)Without limiting subsection (1), Division 13A of Part VII (Consequences of failure to comply with orders, and other obligations, that affect children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court), of the Family Law Act 1975 apply to any decree made by a court under this Act as if the decree were a decree made by a court under Part VII of that Act.
(3)Where any difficulty arises in the application of subsection (1) or (2) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.
Section 111
Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1)A liable parent, or a carer entitled to child support, (the applicant ) may apply to a court having jurisdiction under this Act for leave for:
(a)the Registrar to make a determination under section 98S; or
(b)the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(2)Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a)the applicant; and
(b)either:
(i) the liable parent; or
(ii) the carer entitled to child support.
Registrar application
(3)The Registrar (the applicant ) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(4)The parties to the proceeding under subsection (3) are:
(a)the applicant; and
(b)the liable parent; and
(c)the carer entitled to child support.
Section 112
Court may grant leave to amend administrative assessment that is more than 18 months old
(1)If an application is made to a court under section 111, the court may grant leave for:
(a)the Registrar to make a determination under section 98S; or
(b)the court to make an order under section 118.
(2)The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3)Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
(3A)To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order under section 118, irrespective of what the applicant applied for under section 111.
Matters to be considered
(4)In considering whether to grant leave under subsection (1), the court must have regard to:
(a)any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b)the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c)the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5)The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6)An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7)The period specified under subsection (6):
(a)must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b)is not limited by the terms of that application.
No requirement to make determination or order
(8)The granting of leave under subsection (1) does not imply that:
(a)the Registrar is required to make a determination under section 98S; or
(b)the court is required to make an order under section 118.
(my emphasis)
Section 117
Matters as to which court must be satisfied before making order
Court may make departure order
(1)Where:
(a)application is made to a court having jurisdiction under this Act for an order under this Division in relation to a child in the special circumstances of the case; and
(b)the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A)just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B)otherwise proper;
to make a particular order under this Division;
the court may make the order.
Grounds for departure order
(2)For the purposes of subparagraph (1)(b)(i), the grounds for departure are as follows:
(a)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:
(i) the duty of the parent to maintain any other child or another person; or
(ii) special needs of any other child or another person that the parent has a duty to maintain; or
(iii) commitments of the parent necessary to enable the parent to support:
(A)himself or herself; or
(B)any other child or another person that the parent has a duty to maintain; or
(iv) high costs involved in enabling a parent to spend time with, or communicate with, any other child or another person that the parent has a duty to maintain;
(aa)that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of the responsibility of the parent to maintain a resident child of the parent (see subsection (10));
(b)that, in the special circumstances of the case, the costs of maintaining the child are significantly affected:
(i) because of high costs involved in enabling a parent to spend time with, or communicate with, the child; or
(ia) because of special needs of the child; or
(ib) because of high child care costs in relation to the child; or
(ii) because the child is being cared for, educated or trained in the manner that was expected by his or her parents;
(c)that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
(i) because of the income, earning capacity, property and financial resources of the child; or
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
(ii) because of any payments, and any transfer or settlement of property, made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent to the child, to the carer entitled to child support or to any other person for the benefit of the child.
High costs involved in enabling parent to care for a child
(2B)A parent's costs involved in enabling the parent to care for a child can only be high for the purposes of subparagraph (2)(a)(iv) or (2)(b)(i) if the costs that have been or will be incurred, during a child support period, total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(2C)If a parent has at least regular care of a child, then the only costs that can be taken into account for the purposes of subsection (2B) are costs related to travel to enable the parent to spend time with, or communicate with, the child.
High child care costs
(3A)The ground for departure mentioned in subparagraph (2)(b)(ib) is taken not to exist unless:
(a)the costs are incurred by a parent or a non-parent carer; and
(b)the child is younger than 12 at the start of the child support period.
(3B)Child care costs for a parent can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total more than 5% of the amount worked out by:
(a)dividing the parent's adjusted taxable income for the period by 365; and
(b)multiplying the quotient by the number of days in the period.
(3C)Child care costs for a non-parent carer can only be high for the purposes of subparagraph (2)(b)(ib) if, during a child support period, they total at least 25% of the costs of the child for that period.
Matters to consider for purposes of subparagraph (1)(b)(ii)
(4)In determining whether it would be just and equitable as regards the child, the carer entitled to child support and the liable parent to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3); and
(b)the proper needs of the child; and
(c)the income, earning capacity, property and financial resources of the child; and
(d) the income, property and financial resources of each parent who is a party to the proceeding; and
(da)the earning capacity of each parent who is a party to the proceeding; and
(e)the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support:
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain; and
(f)the direct and indirect costs incurred by the carer entitled to child support in providing care for the child; and
(g)any hardship that would be caused:
(i) to:
(A)the child; or
(B)the carer entitled to child support;
by the making of, or the refusal to make, the order; and
(ii) to:
(A)the liable parent; or
(B)any other child or another person that the liable parent has a duty to support;
by the making of, or the refusal to make, the order; and
(iii) to any resident child of the parent (see subsection (10)) by the making of, or the refusal to make, the order.
(5)In determining whether it would be otherwise proper to make a particular order under this Division, the court must have regard to:
(a)the nature of the duty of a parent to maintain a child (as stated in section 3) and, in particular, the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and
(b)the effect that the making of the order would have on:
(i) any entitlement of the child, or the carer entitled to child support, to an income tested pension, allowance or benefit; or
(ii) the rate of any income tested pension, allowance or benefit payable to the child or the carer entitled to child support.
Proper needs of the child
(6)In having regard to the proper needs of the child, the court must have regard to:
(a)the manner in which the child is being, and in which the parents expected the child to be, cared for, educated or trained; and
(b) any special needs of the child.
Income, earning capacity, property and financial resources
(7)In having regard to the income, earning capacity, property and financial resources of the child, the court must:
(a)have regard to the capacity of the child to earn or derive income, including any assets of, under the control of, or held for the benefit of, the child that do not produce, but are capable of producing, income; and
(b)disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7A)In having regard to the income, property and financial resources of a parent of the child, the court must:
(a)have regard to the capacity of the parent to derive income, including any assets of, under the control of, or held for the benefit of, the parent that do not produce, but are capable of producing, income; and
(b)disregard:
(i) the income, earning capacity, property and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them; and
(ii) any entitlement of the child or the carer entitled to child support to an income tested pension, allowance or benefit.
(7B)In having regard to the earning capacity of a parent of the child, the court may determine that the parent's earning capacity is greater than is reflected in his or her income for the purposes of this Act only if the court is satisfied that:
(a)one or more of the following applies:
(i) the parent does not work despite ample opportunity to do so;
(ii) the parent has reduced the number of hours per week of his or her employment or other work below the normal number of hours per week that constitutes full-time work for the occupation or industry in which the parent is employed or otherwise engaged;
(iii) the parent has changed his or her occupation, industry or working pattern; and
(b)the parent's decision not to work, to reduce the number of hours, or to change his or her occupation, industry or working pattern, is not justified on the basis of:
(i) the parent's caring responsibilities; or
(ii) the parent's state of health; and
(c)the parent has not demonstrated that it was not a major purpose of that decision to affect the administrative assessment of child support in relation to the child.
Direct and indirect costs in providing care
(8)In having regard to the direct and indirect costs incurred by the carer entitled to child support in providing care for the child, the court must have regard to the income and earning capacity foregone by the carer entitled to child support in providing that care.
Subsections not to limit consideration of other matters
(9)Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
Definition of resident child
(10)For the purposes of this section, a child is a resident child of a person only if:
(a)the child normally lives with the person, but is not a child of the person; and
(b)the person is, or was, for 2 continuous years, a member of a couple; and
(c)the other member of the couple is, or was, a parent of the child; and
(d)the child is aged under 18; and
(e)the child is not a member of a couple; and
(f)one or more of the following applies in respect of each parent of the child:
(i) the parent has died;
(ii) he parent is unable to support the child due to the ill-health of the parent;
(iii) the parent is unable to support the child due to the caring responsibilities of the parent; and
(g) the court is satisfied that the resident child requires financial assistance.
The provisions of Part VA of the Child Support (Registration and Collection) Act 1988 deal with the departure prohibition orders.
Sections 72Q provides jurisdiction to the Federal Court of Australia or the Federal Circuit Court of Australia for a person aggrieved by the making of a departure prohibition order to appeal.
Sections 104(1), 105, 106, 107A, 110Q and S110W of the Child Support (Registration and Collection) Act 1988 provides:
Section 104(1)
Jurisdiction of courts under Act
(1)Jurisdiction is conferred on the Family Court and the Federal Circuit Court of Australia and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Act.
Section 105
Application of Family Law Act
(1)The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Circuit Court Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under subparagraph 113(c)(i)) as if:
(a)the proceedings were proceedings under that Act;
(b)the proceedings were proceedings instituted under that Act;
(c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under that Act;
(d)a decree made in the proceedings were a decree made under that Act;
(e)matters arising in the proceedings were matters arising under that Act; and
(f)any other necessary changes were made.
(1A)In the application of subsection (1) to proceedings under this Act in relation to a child, references in paragraphs (1)(a) to (e) (inclusive) to the Family Law Act 1975 are to be taken to be references to Part VII of that Act.
(2)Where any difficulty arises in the application of subsection (1) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.
Section 106
Appellate jurisdiction of Family Court under Act
(1)The Family Court has jurisdiction with respect to matters arising under this Act in relation to which:
(a)applications for leave to appeal referred to in section 107, 107A or 110 are made; and
(b)appeals referred to in section 107, 107A or 110 are instituted.
(2)Subject to section 110, in an appeal under section 107, 107A or 110, the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence on questions of fact.
(3)The further evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court directs.
Section 107A
Appeals to Family Court from the Federal Circuit Court and the Magistrates Court of Western Australia
(1)An appeal lies, with the leave of the Family Court, to the Family Court from:
(a)a decree of the Federal Circuit Court of Australia exercising original jurisdiction under this Act; or
(b)a decree or decision of a Judge of the Federal Circuit Court of Australia exercising original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
However, an appeal does not lie to the Family Court from a decree of the Federal Circuit Court of Australia exercising jurisdiction under section 72Q.
Note: An appeal from a decree of the Federal Circuit Court of Australia exercising jurisdiction under section 72Q lies to the Federal Court of Australia.
(1A)An appeal lies, with the leave of the Family Court, to the Family Court from:
(a)a decree of the Magistrates Court of Western Australia constituted by a Family Law Magistrate of Western Australia exercising original jurisdiction under this Act; or
(b)a decree or decision of a Family Law Magistrate of Western Australia exercising in the Magistrates Court of Western Australia original jurisdiction under this Act rejecting an application that he or she disqualify himself or herself from further hearing a matter.
Section 110Q
Meaning of reconsideration
For the purposes of this Act, each of the following is a reconsideration of a decision:
(a)an objection to the decision under Part VII;
(b)an application to the SSAT for review of that objection under Part VIIA;
(c)an appeal to a court from that review under Division 3 of Part VIII;
(d)an appeal to another court from that appeal under Division 2 of Part VIII and any subsequent appeals under that Division.
Section 110W
Determining when decisions become final
SSAT
(1)For the purposes of the Assessment Act and this Act, if:
(a)a decision is a decision of the SSAT under Part VIIA of this Act; and
(b)an appeal may be made to a court under Subdivision B of Division 3 of Part VIII of this Act against the decision; and
(c)an appeal is not made within the period for doing so;
the decision becomes final at the end of that period.
Full Court of the Family Court
(2)For the purposes of this Act, if:
(a)a decision is a decision of the Full Court of the Family Court under Part VIII; and
(b)an application may be made for special leave to appeal to the High Court within the period of 30 days after the making of the decision; and
(c)an application is not made within that period;
the decision becomes final at the end of that period.
Other courts
(3)For the purposes of this Act, if:
(a)a decision is a decision of a court (other than the Full Court of the Family Court) under Part VIII; and
(b)an application may be made for leave to appeal under Division 2 of Part VIII against the decision; and
(c)an application is not made within the period for doing so;
the decision becomes final at the end of that period.
Registrar
(4)For the purposes of the Assessment Act and this Act, if:
(a)a decision is a decision of the Registrar under the Assessment Act or this Act; and
(b)any of the following applies:
(i)an objection to the decision may be lodged with the Registrar under Part VII of this Act;
(ii)an application may be made to the SSAT under Part VIIA of this Act for review of that decision;
(iii)an appeal may be made to a court under Subdivision B of Division 3 of Part VIII of this Act in respect of the decision; and
(c)an objection, application or appeal (as the case requires) is not made within the period for doing so;
the decision becomes final at the end of that period.
Discussion and findings
On 26 July 2010 his Honour Justice Strickland delivered his ex tempore reasons dismissing the application in an appeal filed by the father on 17 May 2010. The application by the father was seeking an extension of time to file a notice of appeal in order to appeal against the orders of Federal Magistrate Brown (as he then was) of 15 May 2009.
Paragraph 22 of his Honour’s judgment states:
22.The next factor which I consider is relevant to this application that is before me is whether there is a substantial issue to be raised on appeal. In that regard I have had the opportunity to read and consider the judgment of the Federal Magistrate delivered on 15 May 2009, and the draft Notice of Appeal prepared by [the father]. For my part, the reasons for judgment appear to be, prima facie, sound. his Honour has recited the relevant law. He has made findings of fact which would appear to be open to him. Looking at the grounds of appeal, I cannot be definitive about it, but it seems to me that [the father] will have extreme difficulty in succeeding in any of them. Thus I am not in a position to find that there is a substantial issue to be raised on appeal, which is of course how this factor was phrased by Evatt CJ in McMahon and McMahon (supra).
After considering other factors his Honour dismissed the application in the appeal and ordered the father to pay the mother’s costs fixed at $660.
In the affidavit filed by the father on 27 February 2014 the father sets out the history of the various proceedings, assessments, objections, and departure applications. Included in that history is the decision of Federal Magistrate Brown (as he then was) of 15 May 2009 which dealt with the departures in relation to the assessments. Under the heading “Change in Circumstances” the father says at paragraph 23 of that affidavit:
Since the decisions of SCO [J] and the Trial before FM Brown, significant events have occurred that were very relevant to the matters before the Decision makers, and indicate significant errors in those findings.
The father raises issues including the argument that he says that he was not resident in Australia until 13 October 2006. At paragraph 25 he also refers to the decision made that he was a “UK Non-Resident” and “… hence a tax nomad with no residency. …”. The father then sets out in his affidavit events which occurred after 1 July 2009. They include matters relating to events he said occurred in May, June and July 2010 and May, April, October 2012.
Under the heading “Basis For Reassessing These Decisions” the father sets out several paragraphs in which he asserts that the decision made by SCO [K] and SCO [J] were erroneous, incorrect or that the decisions were based upon “misrepresented statements”. There were other arguments relied upon by the father in the proceedings however, all appear to relate to matters which the father argues were errors or mistakes.
In the affidavit at paragraph 40 and thereafter the father complains about the errors of procedure in fact and law he claims were made by Federal Magistrate Brown (as he then was).
At paragraph 50 of the affidavit the father states:
50.I seek leave to depart from the findings of SCO [J] and FM Brown as regards Reason 1 and Reason 8, because they are grossly in error and have place (sic) the families and children into financial hardship.
a.Both decision-makers noted at the time of their decisions that matters were complex and that they were guessing as regards their findings.
b.Both decision-makers relied on false statements made by SCO [K] and other CSA Officers.
c.Both decision-makers made significant errors in procedure, in the finding of fact and in the law.
d.Both decision-makers made assumptions as regards significant live issues that only resolved after both decisions were made.
e.Both decision-makers were biased and careless.
The father also annexes to his affidavit page 3 of the reasons of his Honour Justice Strickland’s decision of 16 December 2013. That decision as previously indicated was a decision of his Honour in an amended application by the father filed on 26 November 2013 in which the father sought an application for an extension of time to file a Notice of Appeal. In that decision his Honour refers to the previous application for an extension of time which he dismissed in 2010.
In paragraph 9 of that decision, his Honour says:
9.… In terms of options though that are available to (the father) the proceedings he instituted and which were before Dawe J were the obvious options outside of an appeal. It is quite apparent, as her Honour herself says, and as [the father] has confirmed, that the matters which were sought to be agitated by him before her Honour via an Initiating Application (subject to leave), covered many of the issues which he was seeking to raise if he was granted an extension of time to appeal.
10.In the circumstances that have arisen I indicated to [the father] that he should look to again pursue the applications sought to be pursued before Dawe J, if that is his wish, and that is why I have taken some time in these reasons for judgment to address this aspect.
Taking into account all of the matters in the affidavit material now filed by the father, the Court considers that there are no matters which indicate that there are special circumstances which would make it appropriate, nor just and equitable for there to be any reassessment of the child support payable for the periods to which the applications refer.
The affidavit material which is filed by the father, and the arguments he puts to the Court, relate to errors he alleges were made by the assessors of the Child Support Agency and the Federal Magistrates Court (as it then was). Apart from those alleged errors, he seeks to rely upon factual material (for example, his income at the time and his residence at the time) which were factors well-known to him at the time of the assessments.
As indicated by the Full Court authorities the onus is upon the father to establish that there are some exceptional circumstances which would warrant a reassessment of the assessments carried out so long ago relating to periods between August 2006 and December 2009. The circumstances in this case clearly highlight the fact that there are no exceptional circumstances. Nor are there any circumstances which were not clearly known to the father at the time of the assessments and at the time of the hearing before Federal Magistrate Brown (as he then was).
Simply referring to errors which the father claims were made by the assessors and Federal Magistrate Brown (as he then was) in determining the evidence does not establish exceptional circumstances.
The provisions of s 117 of the Child Support (Assessment) Act 1989 (Cth) require the Court to be satisfied that one or more of the grounds for departure exist and that it would be just and equitable as regards the child, the carer entitled to child support and the liable parent and otherwise proper to make a particular order under this Division.
The facts of this case, and in particular the history of ongoing litigation and the determination by Federal Magistrate Brown (as he then was), do not support the father’s case for a departure.
The Court cannot be satisfied in these circumstances that it is just and equitable as regards to the children or the mother, nor would it be otherwise proper, for any order to be made in relation to these periods under consideration.
Whilst the ongoing litigation between the father and mother in relation to child support, children’s arrangements and de facto property claims, could be considered unusual, the history provided by the father does not establish the special circumstances necessary.
Taking all of the factors into account I therefore do not consider that the father has established a basis upon which he should be granted leave to bring an Initiating Application for leave to depart from the Child Support Assessment decisions.
On the basis that paragraph 10 of the orders in relation to the children made on 4 December 2013 may not apply to Child Support proceedings, I would still dismiss the application summarily because the father has failed to establish any basis upon which to bring such an application taking into account the previous decisions and the requirements of s 112(4) of the Child Support (Assessment) Act 1989 (Cth).
The orders therefore will be that the application for a stay is dismissed and the application for leave to bring proceedings in relation to Child Support Assessment is dismissed.
I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 18 June 2014.
Associate:
Date: 18 June 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Stay of Proceedings
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Remedies
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