Pedrana and Pedrana and Anor

[2014] FamCA 37

FAMILY COURT OF AUSTRALIA

PEDRANA & PEDRANA AND ANOR [2014] FamCA 37

FAMILY LAW – PRACTICE AND PROCEDURE – where the applicant father has filed a Notice of Appeal in relation to a decision by the SSAT – where the father seeks leave to issue a subpoena – where the father seeks to adduce fresh evidence – where the Child Support Registrar opposed the father’s application to issue a subpoena and sought the application in relation to fresh evidence be determined at the start of the hearing of the appeal

Family Law Act 1975 (Cth)
Family Law Rules 2004
Child Support (Registration and Collection) Act 1988 (Cth)

APPLICANT: Mr Pedrana

RESPONDENT: Ms Pedrana

2^nd RESPONDENT: Child Support Registrar

FILE NUMBER: SYC 6936 of 2010

DATE DELIVERED: 3 February 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 25 November 2013

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: N/A

COUNSEL FOR THE 2^ND RESPONDENT: Mr Gouliaditis

SOLICITOR FOR THE 2^ND RESPONDENT: Australian Government Solicitor

Orders

(made on 25 November 2013)

1. Leave granted to the Child Support Registrar to make an oral response to the father’s Application in a Case filed 29 October 2013 and I dispense with any rule that would prevent that oral response being made.

2. My reasons for dispensing with the rules and allowing leave is that the Child Support Registrar was simply opposing what the father is seeking and the only material that the Child Support Registrar wished to rely upon was contained in two annexures to the affidavit by the father filed 29 October 2013.

3. The decision in relation to the father’s Application in a Case filed 29 October 2013 is reserved.

4. The Application in a Case filed by the father on 15 November 2013 be listed by consent for hearing on 14 February 2014 to be heard at the same time as the amended notice of appeal filed 15 November 2013.

5. The time within which the respondents are required to file written submissions be extended to 12 December 2013.

Orders

1. Application for Order 1 made by the father on 29 October 2013 be dismissed.

2. The Child Support Registrar bring to court on 14 February 2014 the document referred to in item 1 to the schedule to the subpoena which is Annexure A to the father’s Application in a Case filed 29 October 2013 and the issues relating to the production and use of that document, will be adjourned for determination to 14 February 2014.

3. The father’s application for leave to file further evidence be adjourned to 14 February 2014.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 6936 of 2010

Mr Pedrana

Applicant

And

Ms Pedrana

Respondent

And

Child Support Registrar

2^nd Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. Mr Pedrana, the father and appellant in this matter, filed an Amended Notice of Appeal on 15 November 2013 from the Social Security Appeals Tribunal (“SSAT”) in relation to their decision to set aside a change of assessment of child support. In an Application in a Case by the father filed 29 October 2013 he seeks leave to issue a subpoena and adduce fresh evidence at the hearing of the appeal.

2. On 16 September 2013, I made the following order (inter alia):

   5. By 11 October 2013 the applicant file and serve any application for leave to file further evidence or to issue further subpoenas, which application is to be supported by an affidavit.

   No issue is raised relating to the applicant filing this application out of time.

3. The mother, who is the first respondent, did not appear. The Child Support Registrar (“the CSR”), the second respondent, appeared and sought leave to orally oppose the father’s application. The father opposed the CSR being given that leave.

THE CSR’S ORAL APPLICATION TO OPPOSE THE FATHER’S APPLICATION

1. On 25 November 2013, I granted leave for the CSR to make an oral response to oppose the father’s Application in a Case filed 29 October 2013. Although during submissions and in notation 2 I gave short reasons, I also indicated during submissions that I would give fuller reasons for rejecting the father’s position that the matter should proceed on an undefended basis.

2. The CSR had not filed a response to an Application in a Case nor any affidavit in support. The only evidence relied upon by the CSR was a part of the affidavit and two annexures in the affidavit of which the father had filed in support of his application.

3. The father referred to rules 9.05 and 9.06 of Family Law Rules 2004 (Cth)(“the Rules”) which provide:

   9.05A respondent to an Application in a Case who seeks to oppose the Application or seeks different orders must file a Response to an Application in a Case.

   9.06 (1) A respondent who files a Response to an Application in a Case must, at the same time, file an affidavit stating the facts relied on in support of the Response to an Application in a Case.

   (2) Subrule (1) does not apply to a Response to an Application in a Case filed in response to an application to review an order of a Judicial Registrar or Registrar.

4. The father further referred to Rule 9.08 which provides that a Response is to be filed at least seven days before the hearing (or procedural hearing) to which it relates.

5. The father submitted that because the CSR had not complied with these Rules, the father’s application should be dealt with upon the basis that it was unopposed.

6. I have power under Rule 1.12 to dispense with compliance with the Rules. Rule 1.12 provides:

   (1) These Rules apply unless the court, on application or its own initiative, orders otherwise.

   (2) The court may dispense with compliance with any of these Rules at any time, before or after the occasion for compliance arises.

   (3) In considering whether to make an order under this rule, the court may consider:

   (a) the main purpose of these Rules (see rule 1.04);

   (b) the administration of justice;

   (c) whether the application has been promptly made;

   (d) whether non-compliance was intentional; and

   (e) the effect that granting relief would have on each party and parties to other cases in the court.

7. The father submitted that the CSR had ample time to prepare a Response, given he had filed his Application in a Case on 29 October 2013. The father said from the bar table that the application was served on the CSR on 29 October 2013.

8. I was of the view that the father was not taken by surprise by the CSR’s opposition to his application, given he conceded that the CSR had written to him on Friday 22 November 2013 indicating an intention to oppose his application. The matter came before me shortly before 5pm on 25 November 2013. As I outline below, the CSR did not rely on any material other than parts of the affidavit which the father had filed in support of his application.

9. There is no prejudice to the father in allowing the CSR to orally oppose the father’s application.

10. I conclude the administration of justice is best served by dispensing with the rules requiring the CSR to file a written Response to the father’s Application in a Case and a supporting affidavit, and granting leave for them to make an oral Response opposing the father’s application and allowing the CSR to rely, in their case, upon material filed by the father.

DOCUMENTS RELIED UPON

1. The applicant father relied on paragraphs 7- 18 of his affidavit sworn 14 October 2013, and annexures RPL2 and RPL3. He also referred to written submissions filed 15 November 2013 (in relation to the substantive appeal from the SSAT) entitled “SUBMISSION OF THE APPELLANT [Errors of Law/Practice and Procedure/Writ of Mandamus]”.

2. The CSR relied on paragraphs 47 – 49 of the father’s affidavit, which included annexures RPL2 and RPL3.

3. Annexure RPL2 is a transcript of a phone call the father had with a Senior Case Officer, Ms A, on 9 June 2011. The date of transcription is unclear. Annexure RPL3 is a letter from the Commonwealth Ombudsman to the Department of Human Services dated 22 March 2013.

LEAVE TO ISSUE A SUBPOENA

1. The subpoena the father seeks to issue is attached to his Application in a Case filed 29 October 2013. The father orally indicated that he was not pressing items 2 – 4 in the subpoena. This then leaves Item 1 which is in the following terms:

   “Document Four” listed on the schedule of documents to Department of Human Services FOI Decision letter (Reference 3657) signed by [Ms B] and dated 15 July 2013 and containing “information about the referral, assessment and outcome” of fraud investigations carried out on the first respondent in the case in relation to an allegation of false, misleading and/or reckless information being supplied to the Child Support Registrar on a Change of Assessment Application. [errors in original]

2. The affidavit material the father relied upon makes no mention of the FOI Decision letter.

3. During submissions, the father indicated that his central position was that the original COA decision, the objection to the COA decision and the review by the SSAT, were all tainted by the mother’s initial application that contained information which the father asserts was false, misleading and/or reckless.

4. The father asserts that the allegations made by him and the response by the CSA to his allegations are relevant considerations in this appeal.

5. In submissions the father said he believed that the documents sought by the subpoena would shed light on what the CSA did and did not do, may show that there was a belated investigation, might show the terms of reference of that investigation and what they found and why they did not do anything afterwards. The father asserts that those matters are all centrally relevant to a ground of appeal which he wishes to argue.

6. The CSR opposed the father’s application for leave to issue a subpoena on two grounds which he referred to as a “broad objection” and a “narrower objection”.

7. The broad objection was that the subpoena material could only go to ground 1 of the father’s grounds of appeal (in his Amended Notice of Appeal filed 15 November 2013). Ground 1 is in the following terms:

   The SSAT failed to properly exercise its powers and accordingly made an error of law in failing to deal with the first ground of review raised by the appellant in his written submission.

8. The CSR submitted that documents subpoenaed after the SSAT hearing could have no relevance to whether the SSAT erred in properly considering the father’s written submissions. It was submitted there could be no forensic purpose to the subpoena.

9. The “narrower objection” the CSR had to the issuing of a subpoena was that Annexure RPL2 was sufficient to establish whether the father raised any allegations of false/misleading/reckless statements prior to the first decision by Ms A. I took this also to be an objection to the relevance of this document in circumstances where the document is said not to go to any fact that is in issue.

10. Without seeing the document requested, it is difficult to decide whether it is or is not relevant to any viable argument which the applicant seeks to advance at the appeal.

11. The subpoena which the father wishes to issue is directed to the CSR, the respondent to this application. I shall order the CSR to have the requested document (item numbered 1 in Schedule to the subpoena which is annexure A to the father’s Application in a case filed 29 October 2013) available in court at the commencement of the hearing and the objection based upon relevance will be dealt with at that time.

LEAVE TO ADDUCE FRESH EVIDENCE

1. The CSR sought that the father’s application to adduce fresh evidence be adjourned until the first morning of the hearing. The father opposed that application and sought that it be determined prior to the hearing.

2. I have power under s 110G(2)(b) Child Support (Registration and Collection) Act 1988 (Cth) to receive further evidence, for the purpose of making findings of fact under s 110G(1).

3. In oral submissions, the father clarified that the additional evidence he wished to adduce was annexures RPL2 and RPL3.

4. The CSR’s objection to leave being granted is based upon the relevance of the material and that matter will be dealt with at the hearing.

I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 3 February 2014.

Associate:   

Date:  3.2.2014