Oxenham and Oxenham - [2008] FMCAfam 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

OXENHAM & OXENHAM

[2008] FMCAfam 320

CHILD SUPPORT ─ FAMILY LAW ─ Application for adjournment – application dismissed.

CHILD SUPPORT ─ FAMILY LAW ─ Departure application – case turns on its own facts – application dismissed.

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989

Gyselman (1992) FLC 92-279
Mathieson & Hamilton (2006) FLC 98-032
Myers (1969) WAR 19
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Reed v Draper (1995) FLC 92-649
Ross v McDermott (1998) 23 Fam LR 613

Applicant:

MR OXENHAM

Respondent:

MS OXENHAM

File number:

SYM 7343 of 2006

Judgment of:

Walters FM

Hearing date:

26 February 2008

Date of last submission:

26 February 2008

Delivered at:

Melbourne

Delivered on:

26 February 2008

REPRESENTATION

Counsel for the Applicant:

In person

Counsel for the Respondent:

In person

ORDERS

The application for an adjournment be dismissed.
The child support departure application be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Oxenham & Oxenham is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

SYM 7343 of 2006

MR OXENHAM

Applicant

And

MS OXENHAM

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Adjournment

Before the court is the father’s application to adjourn the child support proceedings that are currently listed before me for trial today. The proceedings began as long ago as 25 August 2006, by means of an application for a departure order filed in the Local Court at Wyong in New South Wales. The history of the matter need not be set out in detail at this point in time. Suffice it to say that there have been many appearances before Federal Magistrates in two States leading up to the matter coming before the court today.
Today's trial date was in fact set by Phipps FM, pursuant to orders made on 30 October 2007. Paragraph 2 of those orders reads:
The child support departure application be fixed for hearing on 26 February 2008 at 10 am in the Federal Magistrates Court at Melbourne in the child support list before Walters FM.
Paragraph 3 of the orders made on that day reads:
The parties file and serve any further affidavits on which they seek to rely no later than 14 days before the final hearing.
The parties were at liberty to list the matter for a telephone mention if they were minded to do so.
Mr Oxenham seeks that the proceedings now be adjourned because he wishes to have the opportunity to obtain legal advice. It appears from the evidence before me, however, that Mr Oxenham saw someone at the Monash Oakleigh Legal Service (“the Service”) as recently as

13 February this year. It also appears from the evidence presented by officers of the Service[1] that, in fact, Mr Oxenham saw them last year (or perhaps earlier) as well, and that he received advice at that time.
[1] See transcript at pages 12 to 21
Mr Oxenham received advice on 13 February 2008. It appears that that advice was in writing. Nothing that I have heard from the relevant officers of the Service could fairly support the need for an adjournment, and nothing that has been said gives me any confidence that the matter will be any better prepared in some months time than it is at present.
The law in relation to adjournments was discussed by the Full Court in Reed v Draper (1995) FLC 92-649. In that case, the Full Court speaks of two sometimes competing principles that should be applied when a court is considering whether or not to adjourn a final hearing. The first principle is well-known to legal practitioners in all jurisdictions in Australia, and is described by the Full Court in Reed v Draper as the injustice principle.
I come from Western Australia, and the case most frequently relied upon in relation to the injustice principle in that jurisdiction is (or was) the decision of Jackson J of the Supreme Court of Western Australia in Myers (1969) WAR 19. The principle is summarised by his Honour at page 21 of the judgement as follows:
To grant or refuse an adjournment is a matter for the discretion of the court to whom the application is made. But where the refusal of an adjournment would result in serious injustice to one party, an adjournment should be granted unless, in turn, this would mean serious injustice to the other party. An appellate court will not interfere with a discretionary order of this sort unless there is strong reason for believing that an injustice has resulted….
I understand Mr Oxenham's argument to be to the effect that an injustice may well result – to him – if I proceed to hear and determine the case today. On the other hand, the wife argues that the husband has had more than enough time to get his tackle in order (to use a colloquialism), and that there is no guarantee that the matter will be better prepared on the next occasion. She wishes to matter to be dealt with and brought to a completion as soon as possible.
I asked Mr Oxenham how much was involved in the proceedings. He said, in broad terms, that the amount is some $12,000. Assuming that is the case, I can only wonder whether, if the potential provider of (unpaid) legal assistance for the husband were to become aware of the relatively small amount of money involved, he would or could ever be successful in obtaining such assistance. Indeed, I suspect that, at the end of the day, any adjournment would simply see the parties back in court in much the same position as they now find themselves.
I am conscious, of course, that the husband has twice received legal assistance from the Service. Further, the Service was well aware that the matter was listed for hearing before me today, but – so it would appear –it did not see fit to arrange any form of representation for the husband. Nor did the Service take any steps to arrange for somebody to attend to argue for an adjournment.
Even if the injustice principle could be regarded as favouring the husband’s application for an adjournment (and, in my opinion, it cannot), that principle is only one of two principles that the court must take into account. The second principle has become progressively more important in the administration of justice over the last 20 or 25 years. It is known as the court resources principle. I do not propose to go through the various cases referred to in Reed v Draper which set out the meaning and effect of that principle. But the thrust of those cases indicates that parties must properly prepare their cases (be they represented or not represented) and be ready to proceed on the trial date that is allocated to them. It is important to understand that the pace of litigation, the pace at which parties move along the litigation pathway, is set by the court (and by orders of the court) and not by the parties – or, indeed, their legal representatives. As the Full Court said at page 82,572:
… the pace of litigation is ordered by the Court, not the legal representatives of the parties and not the parties. By a series of case management techniques, including procedural orders and directions … cases proceed along the litigation pathway. … Lawyers and their clients ignore them at their risk.
Earlier in these Reasons I used the expression that a party must ensure that he or she has his or her tackle in order, and I said that a case must be ready to proceed on the date that is allocated to it. The reason for such requirements is obvious. These days, the demands made on courts are immense. An enormous volume of cases moves along the litigation pathway. The parties in those cases constantly press for hearings. If a matter is given a trial date, then that necessarily means that other cases (including, sometimes, cases that might fairly and objectively be regarded of more significance, or of greater urgency), are delayed while the court turns its attention to the matter that is before it. Thus, in Brambles Holding Limited v Apex Pallet Hire Pty Ltd (Full Court of the Supreme Court of Victoria, 8 April 1988, unreported) – which case is cited with approval in Reed v Draper at page 82,571 – McGarvie J (with whom Marks J agreed) said:
The courts have an obligation to conduct business before them in a manner which is as efficient, effective and prompt as is consistent with high standards of justice. It always needs to be remembered that if a court list is disrupted by a date which has been fixed for hearing being vacated because a party has failed to prepare that party's case, other litigants waiting for a place in the list have needlessly been prejudiced.
When all is said and done, this case does not concern a huge amount of money. I am not saying that $12,000 is not a significant sum for these parties. I accept that it is. Nor am I saying that the issues that the case raises are not important to the parties. Of course they are. But, in the overall scheme of things, it is a matter that, in my view, is not overly complex, and that can be effectively presented and dealt with today. Clear guidelines exist by which the court is enabled to assist parties with relevant procedural steps and evidentiary matters[2] and, in all the circumstances (and having regard to the fact that the husband has obtained legal advice in the past), it seems to me that it would be both unfair (to the wife and to other litigants waiting for a hearing date) and inappropriate if I were to allow the adjournment.
[2] See Re F: Litigants in Person Guidelines (2001) FLC 93-072
The husband had an obligation, as all litigants do, to get his case ready, and to be able to present it effectively at the time of trial. As I said before, I have no confidence that an adjournment will find the husband in any better position – months down the track – to present his case. In my opinion, the refusal of an adjournment does not result in more serious injustice to the husband than the allowance of an adjournment would cause the wife (who has lived with these proceedings for a very long time and is ready and willing to proceed with the hearing today). Accordingly, and when I balance the effect of the two relevant factors, I conclude that the application for an adjournment should be dismissed.

The substantive application

Before the court is the father's child support application filed in the Local Court at Wyong on 25 August 2006. The grounds for the departure application are set out on the second page of that application. The particular orders sought are also set out on the second page. It is clear that the application focuses on the period from 1 July 2004 to 30 June 2006. Attached to the application are a number of documents, but of significance are:
a)Senior Case Officer Hodge’s notice of decision dated 19 January 2006; and
b)Objections Officer Mostran’s notice of decision on objection dated 28 July 2006.
I have read both of those decisions carefully and in the context of all the other material presented by Mr Oxenham (which I have also read).[3] The long and the short of the matter is that there is simply no evidence before me that could lead me to conclude that the conclusions reached in those two documents are either incorrect or unsupportable in any way. I agree with and adopt the reasoning set out (and the conclusions reached) in the two decisions.
[3] The husband’s child support departure application filed 25 August 2006 (together with some supporting material) was read prior to the matter being stood down at approximately 10.40 am to enable a conciliation conference to take place. All the remaining material on the court file relating to the child support departure application was read prior to the hearing resuming at approximately 2.15 pm.
In Mathieson & Hamilton (2006) FLC 98-032, I summarised the relevant law as follows:
61. The process involved in the consideration of an application for departure from an administrative assessment of child support was explained by the Full Court in Gyselman (1992) FLC 92-279 at 79,064-5, under the heading “Division 4 – Orders for Departure from Administrative Assessment in Special Circumstances”. The Full Court said (inter alia):
Section 117 is the critical provision.
The structure of that section is that s.117(1)(b) identifies concisely the matters about which the Court must be satisfied and those components are then expanded in subsections (2) to (9). Section 117(1)(b) identifies a clear three-step process:
Whether one or more grounds of departure in s.117(2) is established.
Whether it is ‘just and equitable’ within the meaning of s.117(4) to make a particular order.
Whether it is ‘otherwise proper’ within the meaning of s.117(5) to make a particular order.
It is clear from the careful way in which s.117 has been structured that the Court must address each of those three separate issues...
… Each of those grounds (in s.117(2)) is prefaced by the words, "in the special circumstances of the case". Whilst it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary. That is, the intention of the Legislature is that the Court will not interfere with the administrative formula result in the ordinary run of cases. (It has been held) that "special circumstances" were "facts peculiar to the particular case which set it apart from other cases". The approach to the interpretation and application of the particular grounds in s.117(2) must be guided by that qualification.
62. It is clear from the decision in Gyselman that the Court is not obliged to "slavishly go through" each of the considerations in s.117(4). Nor is it necessary to adopt such an approach in relation to the matters referred to in s.117(5). In essence, the Court is obliged to adopt "a practical and flexible approach" to the consideration of the matters referred to in ss.117(4) and (5). [4]
[4] See Ross v McDermott (1998) 23 Fam LR 613 at 623-4.
The thrust of the husband's case is almost impossible to understand. Nevertheless, and as I have said, I have read the material that he has provided, and the fact of the matter is that no “special circumstances” have been revealed.
The evidence that was presented before the court today, and the arguments that the husband raised before me (which I have done my best to understand), do not change the situation. I accept that both parties' financial positions have altered – the husband's for the worse (to some extent), and the wife's for the better (to some extent). But nothing that I have read or heard affects the validity or soundness of the decisions under attack, and I am unable to find that any “special circumstance” exists. Accordingly, I propose to dismiss the child support application.
As I have explained to the husband, my determination in this case says nothing about his right to apply – as he has indicated that he is minded to do – for relevant orders under sections 111 or 112 of the Child Support (Assessment) Act 1989 in relation to what may perhaps be errors on the part of the Child Support Registrar from earlier times.
The child support departure application will be dismissed.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Walters FM

Associate: Suzette De La Motte

Date: 11 April 2008