Pedrana and Pedrana - [2012] FamCA 347

FAMILY COURT OF AUSTRALIA

PEDRANA & PEDRANA

[2012] FamCA 347

FAMILY LAW – PRACTICE AND PROCEDURE – application for a stated case to the Full Court – delay and effect on the respondent considered – application dismissed

Family Law Act 1975 (Cth)
Child Support (Assessment) Act 1989 (Cth)
Family Law Rules 2004 (Cth)

Chippendale Printing Co Pty Ltd v The Commonwealth (1995) 17 ACSR 328
Harman v Secretary of State for Home Department [1983] 1 AC 280
In the marriage of CE Daff (deceased) [1982] 9 FamLR 546
In the marriage of Mullane (1980) 43 FLR 201
Kwon and Lee (2006) FLC 93-287

APPLICANT:

Mr Pedrana

RESPONDENT:

Ms Pedrana

INTERVENOR:

Child Support Registrar

FILE NUMBER:

SYC

6936

2010

DATE DELIVERED:

15 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

27 April 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Family Law Matters

SOLICITOR FOR THE RESPONDENT:

Greg Walsh & Co

COUNSEL FOR THE INTERVENOR:

Mr Begbiey

SOLICITOR FOR THE INTERVENOR:

Australian Government Solicitor

Orders

Orders made 27.4.2012

The father’s Application in a Case filed 15 March 2012 seeking that a case be stated to the Full Court be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Pedrana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6936 of 2010

Mr Pedrana

Applicant

And

Ms Pedrana

Respondent

And

Child Support Registrar

Intervenor

REASONS FOR JUDGMENT

On 27 April 2012 I made the following order:
The father’s Application in a Case filed 15 March 2012 seeking that a case be stated to the Full Court be dismissed.
As indicated, I would provide reasons at a later time and I now do so.
On 19 December 2011 I had made orders in the following terms:
1.Pursuant to Rule 10.14(d) of the Family Court Rules, there be a hearing to determine a question of law regarding whether the legal obligation attaching to information and/or documents produced pursuant to compulsory processes in Family Court proceedings to a party to those proceedings, applies to Commonwealth offices who receive such information/documents in the performance of duties under the Child Support (Assessment) Act 1989.
2.The Child Support Registrar file and serve written submissions on the question of law by 17 February 2012.
3.[Mr Pedrana] and [Ms Pedrana] file and serve written submission on the question of law by 9 March 2012.
4.The Child Support Registrar file and serve any written submission in reply by 16 March 2012.
5.Any written submissions are to be limited to ten pages and may be in dot point form.
6.This matter will be set down for oral submissions at 10am on 27 April 2012.
On 15 March 2012 the father filed an Application in a Case in the following terms:
“That the Judge shall state to the Full Court the question to be determined by the Court as formulated in the orders made 19 December 2011 as a special case pursuant to s 94A”
The father’s application for a case stated to the Full Court is opposed by the Child Support Registrar and the mother.
All parties have complied with the directions I made on 19 December 2011 and consequently the hearing that was listed on 27 April 2012 was ready to proceed on that day.
The procedure that applies to a case stated under the Family Law Act 1975 (Cth) or the Child Support (Assessment) Act 1989 (Cth) is set out in Part 22.9 Family Law Rules 2004 (Cth).
The normal procedure is for a judge to order a party to prepare a case stated to the Full Court. When doing so, the usual procedure would be for the party to confer with each other party about the terms of the draft case stated and prepare a draft case stated based on those agreed terms.
The draft case stated must concisely state the facts and the question of law to be determined. When the draft of the case stated is completed, the party who prepared it must ask the Regional Appeal Registrar to list the case for a procedural hearing to have the draft case stated settled by the judge and serve a copy of the draft case stated and a notice of the date fixed for procedural hearing on each other party and any other persons the judge directs.
A party served with a copy of the draft case stated may object to its terms or seek an amendment of it by giving written notice. The draft case stated is then lodged with any objections for settlement and signature by the judge. Once the case stated has been settled, the procedure then is for it to be lodged with the Regional Appeal Registry for the fixing of a date before the Full Court.
None of the parties could indicate to me the likely delay in the fixing of the matter before the Full Court or receiving an outcome from the Full Court.
The father submits that it is apparent from the submissions that have been filed that the Registrar wishes to argue that the Registrar is not bound by the obligation that arises from the implied undertaking of a party to the court proceeding who receives documents as a result of some compulsory court process (a legal obligation referred to as “the Harman obligation”; in reference to the leading UK authority Harman v Secretary of State for Home Department [1983] 1 AC 280). The father submits that the Registrar wishes to argue the Registrar is not bound by the Harman obligation in any case, not just this particular case.
The affidavit of Mr D (the Child Support Registrar) affirmed on 16 April 2012 indicates that this ruling may affect a number of other cases, estimated to be in the vicinity of 2,000 per year.
Accordingly the father submits it is expedient for me to state a case to the Full Court.
I accept the Registrar’s submission that it is not correct to say that he is seeking a ruling that he is not bound by the Harman obligation in every case. Whilst the Registrar concedes the precedential effect of any ruling, the Registrar does not seek a “global” ruling about the operation of the Harman obligation, but rather a declaration which is specific to the use of the particular information in the specific context of the present case.
It is the case that resort should only be had to the s 94A procedure in “exceptional circumstances” and not in relation to questions of law which can “well be determined at first instance”; see In the marriage of CE Daff (deceased) [1982] 9 FamLR 546 at 548 per Evatt CJ (with whom Marshall and Strauss JJ agreed). What the court will be asked to determine in this case is a matter of statutory construction. It is not unusual for trial judges to interpret statutes in particular cases.
There will be inevitable delay and costs associated with not proceeding with the case at the time it has been listed and embarking on the process of stating the case to the Full Court. In the marriage of Mullane (1980) 43 FLR 201, Evatt CJ and Butler J said at 202:
…There must, of necessity, be additional delay and cost involved in stating a case to the Full Court… In view of the delay and cost involved, and the time taken up by the Full Court in dealing with a stated case, it is important that the court and the parties consider carefully whether it would be preferable to let the matter proceed to a full hearing.
As explained in the Registrar’s affidavit, such delay in the present case is likely to be detrimental in two ways.
18.1.The father is presently not making any payments of child support in accordance with the challenged rate of departure because of the outstanding question which the court has set time aside to determine. At the moment the father is paying under the original formula assessment at a rate of $1,898 per year, rather than the challenged departure rate of approximately $13,000 per year. As such, the mother and the children are being disadvantaged if the ultimate outcome is that the father is unsuccessful in his challenge based on the Harman obligation.
18.2.It is clear from the Registrar’s affidavit that, as an operational matter, he has taken precautionary measures to prevent the use of the Harman information in other child support cases.
In Mullane, Evatt CJ and Butler J commented on the limitations of a case stated at 202:
…issues are determined by the Full Court on the basis of a statement of facts agreed to by the parties or settled by the judge. Those facts may differ in some ways from those which are ultimately established by the evidence; alternatively, there may be factual information omitted from the case which the Full Court may consider important to its decision.
An example of the difficulties that can arise can be seen in the discussions at paragraphs 83 and 84 of the Full Court’s decision in Kwon and Lee (2006) FLC 93-287.
It is preferable, in a case of this nature, for any Full Court consideration to be by way of appeal, were such an occasion to arise. Counsel for the Child Support Registrar points out that it is not inevitable that an appeal will be lodged. It is submitted that the Full Court would have the benefit of a first instance consideration (involving as it does the acceptance of evidence by the Child Support Registrar) rather than only a concise statement of agreed facts (see Chippendale Printing Co Pty Ltd v The Commonwealth (1995) 17 ACSR 328, at 334 per Lindgren J).

Conclusion

Whilst I accept that a determination in the substantive application might have wider precedential effect, the solicitor for the mother points out the mother has been without the benefit of her increased child support assessment since June 2011. The process of stating a case to the Full Court will inevitably involve further delay. It might also be difficult (and there may have to be a further hearing about) framing concise agreed facts arising out of the affidavit of the Child Support Registrar. What the court is being asked to do is to interpret provisions of a statute in the context of the specific facts of this case. Given that the matter is ready to proceed at the time which has been set aside, I dismiss the father’s application to state a case to the Full Court.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 15 May 2012

Associate:

Date: 15.5.2012