Pedrana and Pedrana & Anor
[2015] FamCA 134
•5 March 2015
FAMILY COURT OF AUSTRALIA
| PEDRANA & PEDRANA AND ANOR | [2015] FamCA 134 |
| FAMILY LAW – PROCEDURAL – Application for disqualification – where no apprehended bias established – where there is no logical connection between the complaint and the matter to be determined – where the father had expressly waived any right he had to press an application for disqualification – application for disqualification dismissed FAMILY LAW – PROCEDURAL – Application for leave to reopen hearing – where the father failed to establish that the proposed new evidence would assist his case or that it was otherwise in the interests of justice to reopen the hearing – application to reopen hearing dismissed FAMILY LAW – CHILD SUPPORT – Appeal from SSAT – where the father asserts that taking action under the provisions of s 159 and s 159A Child Support (Assessment) Act is a mandatory requirement before the Child Support Registrar (the Registrar) can proceed with a Change of Assessment Application (COA) – whether the Registrar acted beyond jurisdiction in proceeding with the mother’s COA in circumstances where the father asserted the mother knowingly or recklessly made false or misleading statements in her COA – where there was no lack of jurisdiction to proceed with the COA – where the SSAT gave adequate reasons – where the father asserts a failure to accord him procedural fairness when excluding a document – where there was no lack of procedural fairness – where the excluded document was irrelevant in any event – father’s appeal dismissed FAMILY LAW – CHILD SUPPORT – Application for declarations relying upon the court’s residual powers when a breach of the Harman obligation has been alleged – whether there has been some clearly inappropriate use by the Registrar of documents provided by the mother – where there has been no inappropriate use of documents by the Registrar – applications for declarations dismissed |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) |
| Australian Securities Commission v Amplex Ltd and Ors (1995) 38 NSWLR 304 Vakauta v Kelly (1989) 167 CLR 568 |
| APPLICANT: | Mr Pedrana |
| RESPONDENT: | Ms Pedrana |
| 2nd RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 6936 | of | 2010 |
| DATE DELIVERED: | 5 March 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 14 February 2014; 18 February 2015 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Did not participate in the hearing |
| COUNSEL FOR THE INTERVENOR: | Ms Mitchelmore |
| SOLICITOR FOR THE INTERVENOR: | Australian Government Solicitor |
Orders
(Orders made 14.2.14)
....
The father’s Application in a Case filed 9 December 2013 be dismissed and I reserve the delivery of my reasons for making that order.
Pursuant to provisions of s 57(1) Evidence Act, I admit provisionally the document described as document 4 referred to in paragraph 17 of my Reasons dated 3 February 2014 (relevant paragraphs 17 to 27).
....
....
By consent and pursuant to s 110G(2)(b) Child Registration and Collection Act, and s 57(1) Evidence Act, I provisionally receive into evidence the documents contained at pages 132-138 of the appeal books.
The decision in relation to the father’s amended notice of appeal is reserved.
The decision in relation to the father’s application for declarations is reserved.
In the event the either party intends to press an application for costs, then that party is to file an application in a case and supporting affidavit and written submissions within 28 days of the publication of my reasons. In addition, the father is to file a financial statement.
Orders
The father’s Application in a Case filed 4 February 2015 is dismissed.
The father’s Amended Notice of Appeal (Child Support) filed 15 November 2013 from the decision of the Social Security Appeals Tribunal is dismissed.
The father’s Application in a Case filed 15 November 2013 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pedrana & Pedrana & Anor 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 SYDNEY |
FILE NUMBER: SYC 6936 of 2010
| Mr Pedrana |
Applicant
And
| Ms Pedrana |
Respondent
And
| Child Support Registrar |
2nd Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 23 May 2011[1] the mother signed an Application form: changing your child support assessment in special circumstances (“COA”). The COA was filed with the Child Support Agency (“CSA”) on 1 June 2011. The father was dissatisfied with the first merit hearing by a senior case officer. He had a second merit hearing by an objections officer and when dissatisfied with that had a third hearing before the Social Security Appeals Tribunal (“SSAT”). The father now appeals the SSAT’s decision to this court.
[1] AB 28
At the centre of the father’s concerns are statements made and documents provided by the mother in her COA about her own and the father’s financial circumstances. In June 2011 the father told the CSA he believed the mother had misrepresented the parties’ respective financial circumstances and the mother had impermissibly provided to the Registrar documents she had obtained in Family Court proceedings. The father’s focus in previous proceedings commenced by him in this court was upon the latter complaint. That issue was resolved in favour of the Child Support Registrar (“the Registrar”) [2], although the father now seeks to say that the Registrar used the documents inappropriately. The father also now complains that the Registrar failed to consider, in a timely manner, referral of the mother for prosecution under s 159 or 159A Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”)[3]. The father says statements made by the mother in her COA about the parties’ respective financial circumstances were either knowingly or recklessly, false or misleading. The father submits that the consideration by the Registrar of s 159 or s 159A of the Assessment Act forms part of the mandatory statutory steps that the Registrar is required to undertake in making a decision based on the mother’s COA. The father asserts that the Registrar’s failure to consider his complaint in a timely way taints and renders invalid any decision varying child support that has as its genesis the mother’s 2011 COA. It is the father’s case that that “failed step” can only be rectified by the mother resubmitting the application again, for a fresh start, with a new senior case officer.
[2] Pedrana v Pedrana (No. 2) (2013) 48 FLR 89
[3] Penalty provisions in the Assessment Act for knowingly or recklessly making false and misleading statements.
The father appeals the decision of the SSAT and makes an Application in a Case based upon the court’s supervisory role which may arise when a breach of the Harman obligation[4] is alleged.
[4] The implied undertaking not to use documents obtained in discovery during litigation for any other purpose, without leave of the court or inconsistent statutory provisions; see discussion in Pedrana v Pedrana (No. 2) (2013) 48 FLR 89.
BACKGROUND
The parties are parents of two children born in 2005 and 2007. The parties separated on 27 January 2010 and the father has been assessed to pay child support for them since that time.
On 23 May 2011 the mother signed a COA. The COA was received by the CSA on 1 June 2011[5].
[5] Section 98B Assessment Act
On 3 June 2011 the mother’s COA was the subject of an initial case assessment by a case officer. It was an initial overview only[6].
[6] AB 62
On 7 June 2011 a senior case officer made initial contact with the father. The father gave the senior case officer information about his financial circumstances which was different in particular respects to that provided by the mother.
On 9 June 2011 the father had further conversations with the senior case officer.
On 21 June 2011 the father signed a Response to the mother’s COA which provided financial information about his circumstances to the senior case officer.
On 1 August 2011 a senior case officer decided to adjust the assessment. In doing so, the senior case officer accepted the information supplied by the father about his and the mother’s financial circumstances which was different, in some respects, to that which the mother asserted in her COA[7].
[7] Section 98C Assessment Act
On 9 September 2011 the father objected to the adjusted assessment[8].
[8] Section 80(1) Registration Act
As part of his objection, the father asserted that the CSA had invalidly used documents which were the subject to the Harman obligation. That issue was determined against the father in Pedrana v Pedrana (No. 2) (2013) 48 FLR 89.
On 5 December 2012 an objection officer altered the assessment, after making findings of fact in a full merits review[9].
[9] Section 87(1) Registration Act
On 3 January 2013 the father applied to the SSAT for a review of the objections officer’s decision[10].
[10] Sections 89(item 2), 90 Registration Act
On 17 May 2013 the SSAT, after a full merits review, set aside the objections officer’s decision and made a substitute decision based on findings of fact[11], but again adjusting the original assessment against the father.
[11] Section 103S(1) Registration Act
On 21 June 2013 the father filed a Notice of Appeal (Child Support) against the decision of the SSAT.
APPLICATION FOR LEAVE TO FILE FURTHER EVIDENCE
The father filed an Application in a Case on 28 October 2013 seeking leave to file further evidence. On 3 February 2014 I adjourned to the final hearing the question of whether leave would be granted.
On 14 February 2014, pursuant to order 2 made 3 February 2014, the Registrar brought a document to court. As a result, pursuant to the provisions of s 57(1) Evidence Act 1995 (Cth) I provisionally admitted the document and marked it as Exhibit 3. Also included in that exhibit were annexures RLP 2 and RLP 3 to the father’s affidavit of 29 October 2013.
The document tagged as Exhibit 3 is a chain of emails relating to a complaint made by the father to the Ombudsman in relation to the father’s assertion that the Department of Human Services (“the Department”) failed to prosecute the mother for making false and misleading statements. An email dated 12 December 2012 gives information as to why there was no referral for criminal prosecution including details as to why it was assessed that the father’s allegation that the mother had provided false and misleading information was “unsubstantiated”.
Document RLP 2 is a transcript of the father’s conversation with the senior case officer on 9 June 2011. In the conversation, the father complained about what he said were false statements in the mother’s COA about the financial circumstances of the parties. It seems that at the time of the conversation between the senior case officer and the father on 9 June 2011, neither was aware of the provisions of s 159 or s 159A of the Assessment Act.
Document RLP 3 is a letter from the Senior Assistant Ombudsman to the Department dated 22 March 2013. The letter corrects an assertion made by the Department that the father had not raised the issue of the mother making false or misleading statements with the senior case officer in their conversation on 9 June 2011.
Relevance to the Appeal
None of the documents in Exhibit 3 were tendered in the hearing before the SSAT. They can be of no relevance to the appeal. In addition, all of these documents also fall within the category of documents that relate to the father’s assertion as to how employees of the Registrar conducted themselves and dealt with him. As I will discuss, the Presiding Member was required to make a decision pursuant to s 98S and s 117 of the Assessment Act. These documents would not have been relevant in the hearing before the SSAT had the father sought to tender them.
Relevance to Application for Declarations
These documents provide some indirect context to the father’s application for declarations and will be admitted into evidence for that purpose.
FATHER’S APPLICATION FOR LEAVE TO REOPEN THE HEARING FILED 4 FEBRUARY 2015
The father seeks leave to reopen the hearing so that he may issue subpoenas for the production of three documents (referred to in this application as documents 6, 63 and 64) and to tender what is referred to in this application as “document 131” which is the same document as the document which I refer to late in these reasons as “the disputed document”[12].
Documents 6, 63 and 64
[12] AB 132 - 138
In his affidavit in support of this application, the father states:
11. As of the date of his affidavit, access granted by the IC to four documents is being challenged in the AAT by DHS. The documents are as follows:
11.1Document 6 is a three page executive minute (brief) prepared for the Minister for Human Services. In the IC’s view, it is an executive minute prepared to inform the Minister of the Department’s handling of my Change of Assessment and of wider administrative implications. The IC found that two sections of the minute contained legal advice from the Australian Government Solicitor which attracted LPP, but that the remainder of the document did not.
11.2Document 63 and 64 (essentially the same documents) is an email chain relating to my Change of Assessment which the IC believes has only one paragraph (starting with ‘Counsel has advised...’ that attracts LPP. It is noted that DHS originally claimed the subject title within the email chain “Subject: For action: [the father] – proposed approach [SEC-IN-CONFIDENCE]” but have walked away from that assertion, providing me with Document 63 and 64 with these particular subject titles un-redacted.
....
13. Noting the conduct of the Child Support Agency (herein ‘CSA’), an agency with DHS, is at issue in the matters before the court and that Document 6, 63 and 64 are related to my case, and are therefore likely to be relevant to it, I would like to seek leave to subpoena these documents and inspect them and, subject to that inspection, have them admitted into evidence ... perhaps with further short submissions.
The father has annexed to his affidavit the decision and reasons for decision of the Privacy Commissioner[13]. The reasons refer to documents 6, 63 and 64 in the following terms:
[13] ‘DT’ and Department of Human Services [2014] AlCmr 127 [18 November 2014]
Document 6
27. I have examined an unedited copy of document 6. It consists of a three page executive minute (brief) prepared for the Minister for Human Services. At page 1, section 3 and at page 2 section 5, the Minister is informed of the substance of legal advice received from the Australian Government Solicitor (AGS) on 30 August 2011. This advice is included in document 90, which is recorded on the Departments schedule as ‘email regarding legal advice’, date ‘30/8/2011 – 31/8/2011’. Document 90 itself is outside the scope of the applicant’s request. However, the legal advice it contains may still attract privilege.
28. I am satisfied that document 6, at page 1, section 3 and page 2, section 5 contain a summary of the legal advice provided to the Department by AGS on 30 August 2011. I am also satisfied that AGS provided the advice in its capacity as a legal adviser and on an independent and confidential basis. However, I do not agree with the Department that the remainder of document 6 contains material exempt under s 42. In my view, this executive minute was prepared to inform the Minister of the Department’s handling of the applicant’s matter and of wider administrative implications.
Document 63
29. I have examined an unedited copy of document 63. It consists of a seven page email chain. The Department found the ‘Subject’ fields in the email headers were exempt and one email, dated 22 August 2011, was exempt in full under s 42. I do not agree with the Department that the ‘Subject’ fields are exempt or that the email dated 22 August 2011 is exempt in full. The subject headers clearly do not contain legal advice and the email contains only one paragraph of legal advice (at page 6, paragraph 6, ‘Counsel has advised...’). I believe that only this paragraph attracts legal professional privilege.
Document 64
30. I have examined an unedited copy of document 64. It is another version of document 63. The material the Department decided was exempt under s 42 in document 64 is identical to the material the Department decided was exempt under s 42 in document 63. As I discussed above, the subject headers clearly do not contain legal advice and the email contains only one paragraph of legal advice (now at page 6, paragraph 7, ‘Counsel has advised...’). I believe that only this paragraph attracts legal professional privilege.
As will be discussed, the substance of the father’s contention is that the case officer, when referring the mother’s COA to the senior case officer, impermissibly relied upon information contained in the documents provided and upon other allegedly false or misleading statements made by the mother in the COA.
The father wishes to issue subpoenas for document 6, 63 and 64 to see what is in those documents, and to then possibly tender them if they are relevant, and also possibly contemplate an amendment to his notice of appeal, depending on what might be in those documents.
These three documents seem to be dated late August 2011 and may be documents which might, inter alia, make some reference to the case officer using the original documents provided by the mother. I know, by reference to the disputed document[14], that some part of what was written in the Registrar’s records about the inability to use documents which were said to be affected by the Harman obligation, was misconceived and consequently was not of any relevance.
[14] AB 132 - 138
The reopening of the hearing is a discretion to be exercised on occasions when the interests of justice require that to happen. The new evidence needs to be so material as to satisfy that test. The new evidence must be demonstrated to most probably affect the result of the hearing. The father’s assertion in relation to documents 6, 63 and 64 is that they are related to his case and therefore likely to be relevant to it.
I shall find below that the father’s central contention about there being a connection between jurisdiction and s 159 and s 159A of the Assessment Act is without substance. For that reason these documents are unlikely to have any relevance at all to the appeal from the SSAT decision. Nor has the father established that these documents are likely to be of any relevance to the father’s application for declarations.
I am unable to make any positive finding in the father’s favour that the overall impact of the proposed new evidence would assist the father’s case. The father seemed to concede in submission, that the evidence could conceivably assist the Registrar’s case.
The father’s application to reopen the case for the purposes of issuing subpoenas in relation to documents 6, 63 and 64 is dismissed.
Document 131
Document 131 is the same document as the seven page document that appears in the Appeal Books at pages 132 to 138 (“the disputed document”). I make a finding about the relevance of the disputed document below. I have admitted the document for the purposes for which it is relevant. It is not necessary to reopen the case to consider admitting a document in the same form as the disputed document.
Conclusion
It is not in the interests of justice to reopen the hearing and the father’s application for leave to reopen the hearing is dismissed.
THE FATHER’S CENTRAL CONTENTION
The father’s central assertion is that if a respondent to a COA alleges that the applicant had been guilty of knowingly or recklessly providing false and/or misleading information in the COA about her own and the respondent’s financial circumstances, then the COA cannot be determined until the Registrar has investigated and reached a conclusion about whether or not the applicant should be referred for prosecution under s 159 or s 159A of the Assessment Act, and if the Registrar concludes that the COA does contain the basis for referral for prosecution, then a course of action open to the Registrar is to invite the applicant to withdraw the COA and to resubmit a new COA.
The basis of the husband’s assertion that the mother made false and misleading statements in her COA about her own financial circumstances seemed to arise from her answers to questions 14[15] and 27[16]. In answer to question 14, “If you have or will receive a lump sum payment this financial year, provide details”, the mother says that by way of property settlement paid on 7 May 2011 she had received $60,000. Under the terms of the property orders[17], the mother was to receive $65,000 within 14 days of 7 March 2011 and a further $35,000 within two months of 7 March 2011. At paragraph 26 of her COA, the mother indicates that she had $60,000 from the property settlement in a CBA bank[18]. There is no information about when the two payments that were required under order 1 were made. The father’s complaint is that the mother did not tell the Registrar that there was another $35,000 coming under the property settlement (and I am unaware as to whether or not the initial payment made by the father was $60,000 or $65,000).
[15] AB 35
[16] AB 38
[17] AB 95
[18] AB 38
In paragraph 27 of her COA, the mother indicates that she had in her own superannuation fund an amount of $32,000. The father complains that the mother did not tell the Registrar in her COA that the property orders gave the mother the benefit of a superannuation splitting order which, when implemented, would transfer to the mother $75,000 from the father’s superannuation interests. Again, I am not aware whether or not as at 23 May 2011 the splitting order had been implemented.
Accordingly, it is not clear to me that the mother either deliberately or recklessly set out to mislead the Registrar in her COA. In any event, the father, within a very short period of time, provided the Registrar with information correcting what he says were misapprehensions that might arise both in respect of his own financial circumstances and the mother’s financial circumstances from the information the mother had provided.
The father says he feels a level of moral indignation because he believes the mother did not provide a complete picture to the Registrar in her COA and that the CSA did not attempt to have the mother brought to account for what he perceives to be her wrongdoing. The evidence I have indicates that, apart from the two sets of proceedings that the father has prosecuted in this court, he has pursued related issues in the AAT and also through extra-curial processes.
It is a common experience in cases about the respective financial circumstances of separating couples that one party will make an assertion about their own or the other party’s financial circumstances which is challenged by the other party. Sometimes what the applicant asserts about their own and the respondent’s financial circumstances will be accurate; sometimes it will not be. Sometimes what the respondent asserts about their own and the applicant’s financial circumstances will be accurate; sometimes it will not be. That is why there are reviews and hearings on the merits. Sometimes one or both parties are being deliberately untruthful. Sometimes it is inadvertent. For example, the father asserts that “it is unconscionable that someone of the [mother’s] intellect” could make a mistake of adding $51,000 to the father’s business income “in the formulation of a total”[19] in s 8 of her COA. On the face of the document, it does not appear the mother has done so. The total of $619,632 seems to exclude the $51,000. In this particular claim, the father seems to have made an incorrect assertion against the mother. It is unlikely that he has done so deliberately. Testing of assertions made by both parties is what happens during merit reviews.
[19] AB 499
GROUNDS OF APPEAL
By way of Amended Notice of Appeal (Child Support) filed 21 June 2013, the father appeals the decision of the SSAT made on 1 August 2011 on the following grounds:
1. 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 submissions.
2. In the alternative, the SSAT failed to properly exercise its powers and made an error of law by failing to set out the reasons for its decision with respect to the first ground of review raised by the appellant in accordance with S103X(3)(b)(i) of the Child Support (Registration & Collections [sic]) Act.
3. The SSAT failed to properly exercise its powers and accordingly made an error of law by failing to accord procedural fairness to the appellant with respect to the exclusion of documents by the Principal Member prior to the Hearing before the Presiding Member.
Upon a successful appeal the father seeks the following orders:
1. The SSAT decision be quashed and, pursuant to section 39B of the Judiciary Act, by way of writ of mandamus, the CSR be ordered to consider the matter afresh, should the mother agree to re-submit an untainted application.
2. In the alternative, the SSAT decision be set aside and remitted back to the SSAT for rehearing according to law.
3. A declaration that the Child Support Registrar is prevented, by way of enactment (Child Support Assessment Act section 159 and 159A and Child Support (Registration & Collection Act section 119), from advancing a Child Support Assessment Act Part 6A Assessment or Child Support (Registration & Collection) Act Obligation when it has prima facie indications that an application or submission related to that Part 6A Assessment or Objection contains false and/or misleading and/or reckless information.
GROUND 1
The father’s complaint is the SSAT failed to deal with the first ground of review raised in his written submissions. That ground for review[20] is in the following terms:
1. The Child Support [sic] has made a decision beyond jurisdiction (Procedural Ultra Vires).
[20] AB 471
This ground was recast in written submissions to the SSAT in the following terms:
Whether the Child Support Registrar made an error of law in failing to carry out mandatory/directory requirements when determining to proceed with the change of assessment application; and if so whether the Child Support Registrar made an error of law, including whether the Child Support Registrar acted beyond jurisdiction, in continuing with the change of assessment decision.[21]
[21] AB 654 [10]
During the proceedings before the SSAT, the father asked the SSAT to refer to the court “a question of law arising in a review by the SSAT” pursuant to s 110H Child Support (Registration & Collection) Act 1988 (Cth) (“Registration Act”). That question was whether the Registrar acted beyond jurisdiction by proceeding with the COA in circumstances where the father asserted the Registrar had failed to carry out what he asserted was a mandatory requirement under s 159 or 159A of the Assessment Act.
At [17] – [22] the presiding member of the SSAT provided the following reasons as to why the SSAT had jurisdiction to deal with the matter and why there was no substance to the father’s assertion that there was a lack of jurisdiction in either the senior case officer, the objection officer or the SSAT carrying out their statutory functions:
17. The Tribunal put to [Mr Pedrana] that there was no evidence that either the senior case officer or the objection officer had relied upon the document provided by [Ms Pedrana] with her application. [Mr Pedrana] agreed, but referred to a file note at folio 1296 of the hearing papers, which appears to be the record of the initial case assessment of [Ms Pedrana’s] application. This file note refers briefly to the contents of the document in question, and states that the application should proceed. However the file note also states that it is a case assessment only and is not intended to replace a full scrutiny. The Tribunal observed that this file note is not a “reviewable decision” by the CSA or the SSAT under the terms of the R & C Act (see sections 80 and 89). [Mr Pedrana] submitted that nonetheless, the fact that incomplete evidence was referred to in this file note indicates that this evidence was used inappropriately by the CSA. In his view, this is such a significant breach of procedure that the whole process from that point is tainted, and the Tribunal therefore has no valid application before it, and therefore no jurisdiction to proceed. [Mr Pedrana] did concede that the CSA would have been within its rights to proceed with [Ms Pedrana’s] application if she had provided no supporting evidence at all, but had simply submitted that his taxable income did not accurately reflect his income or financial resources.
18. Asked for her views, [Ms Pedrana] did not consider that there was a need for any questions to be referred to the Court for determination, but indicated that the Tribunal should proceed with the substantive hearing.
19. The Presiding Member of the Tribunal gave consideration to [Mr Pedrana’s] request, and submission, as well as the views expressed by [Ms Pedrana]. The Presiding Member noted that [Mr Pedrana’s] concerns relate primarily to alleged procedural flaws on the part of the CSA Registrar which he claims have led to there being no valid application before the Tribunal, and therefore no jurisdiction to proceed.
20. Sections 98B and 98D of the Child Support (Assessment) Act 1989 (Assessment Act) provide for a liable parent or eligible carer to make a written application, in an approved form, for a departure from the formula assessment of child support. Section 150A states that the Registrar can specify the form in which such an application is made, and in accordance with this, a form has been produced for such applications. [Ms Pedrana] made her application on this form. On the face of it, she has made a valid application for a departure determination, therefore triggering the Registrar’s powers to make or not make a departure determination (under sections 98C, 98E and 98F Assessment Act), in accordance with the procedures set out in section 98H Assessment Act. The decision made by the senior case officer on 1 August 2011 was broadly made in accordance with the powers under section 98C Assessment Act. [Mr Pedrana’s] objection to this decision was made on 9 September 2011, which was determined by the CSA to be within the statutory time limit (section 81 R & C Act, folio 1070) and appears to comply with the formal requirements of section 84 of the R & C Act. The decision of the objection officer made on 5 December 2012 appear to have been made in accordance with the internal review powers of the Registrar in accordance with subsection 87(1) R & C Act.
21. [Mr Pedrana] made his application for review by this Tribunal of the objection officer’s decision on 3 January 2013, again within the statutory time frame (section 90 R & C Act). The jurisdiction of this Tribunal is derived from applications for review of matters set out in a table at section 89 R & C Act, which includes determinations made by the Registrar under subsection 87(1) R & C Act.
22. Based on this evidence, the Presiding Member was reasonably satisfied that on the face of it, the Tribunal has a valid application for review and has jurisdiction to determine the application.
The statement by the Presiding Member in [22] is the effect of s 103S(1) of the Registration Act. So the bases of jurisdiction identified by the SSAT were:
48.1.Section 98C Assessment Act;
48.2.Section 87(1) Registration Act;
48.3.Section 103S(1) Registration Act.
The father complains to this court that the Presiding Member failed to consider the father’s argument that the COA cannot be determined until the Registrar has investigated and reached a conclusion about whether or not the applicant should be referred for prosecution under s 159 or s 159A of the Assessment Act.
The passage of the SSAT’s decision set out above discusses the statutory bases of the merits reviews conducted by the senior case officer, the objections officer and the SSAT. Inaccuracies in information provided by a party, even deliberate ones, are no basis to exclude jurisdiction.
If the respondent’s central contention is accepted, all a respondent who wishes to delay the review of an assessment would have to do, is point to an error in what the applicant has written about the respondent’s financial circumstances, allege wilfulness or recklessness, and the processing of the COA would be stalled.
Whether or not a case is referred to the Federal Police for investigation and possible prosecution by the Commonwealth Director of Public Prosecutions (CDPP) is a matter unconnected to the question of whether or not the Registrar has jurisdiction to continue to proceed with an application to change an assessment. There is no legislative intent to link s 159 and s 159A Assessment Act and s 119(1) Registration Act on the one hand, and s 98C Assessment Act, s 87(1) and s 103S(1) Registration Act on the other hand.
Ground 1 fails.
GROUND 2
Section 103X(3)(b) Registration Act requires the SSAT to set out the reasons for a decision[22].
[22] Child Support Registrar & Crabbe & Anor (2014) 51 Fam LR 1 at [54] sets out the relevant principles
Apart from reasons given during exchanges between the Presiding Member and the father, the written reasons provided by the Presiding Member at [17] – [22] set out above, adequately explain the basis upon which the SSAT had jurisdiction to hear a full merits review. In doing so, the Presiding Member implicitly and correctly rejected the father’s central contention that the sections upon which jurisdiction was based are dependent or connected to s 159 or s 159A Assessment Act or s 119(1) Registration Act.
Ground 2 fails.
GROUND 3
This ground concerns the disputed document[23] which has been admitted before me provisionally as to relevance, and in respect of which there was a claim by the Registrar for legal professional privilege. The disputed document contains legal advice which was not adopted by the Registrar, was given prior to the decision in Pedrana v Pedrana[24], and was incorrect.
[23] AB 132 - 138
[24] (2012) 48 Fam LR 89
On 4 February 2013, after the father had commenced proceedings in the SSAT, the Registrar filed documents with the SSAT registry[25] which included the disputed document.
[25] Section 95(3)(b) Registration Act
On 14 March 2013 the Registrar wrote to the SSAT[26], indicating that the disputed document had been inadvertently included in the documents which the SSAT had filed. The Registrar made an application[27] for a direction or order prohibiting disclosure of the disputed document[28]. The Registrar also asked for the disputed document to be returned.
[26] AB 657 - 658
[27] Section 97(1) Registration Act
[28] Section 97(1) or alternatively s 103ZAA Registration Act
On 22 March 2013 the father opposed any direction or order being made in the terms sought by the Registrar[29].
[29] AB 662 - 663
By letter dated 18 April 2013 the Principal Member of the SSAT refused the Registrar’s applications and requests and gave reasons[30].
[30] AB 667 - 668
On the same day the Principal Member, pursuant to s 103F(4)(aa) Registration Act ordered the Registrar to make written submissions about, inter alia:
What use, if any, the Registrar considers that the SSAT can make of the document. (being a reference to the disputed document).[31]
[31] AB 669
On 3 May 2013 the Registrar, inter alia, made the following written submission at [12]:
12. In respect of the use the SSAT may make of the legal advice itself, the advice was not followed by the Department therefore it follows that the advice will provide the SSAT with little guidance in conducting its review.[32]
[32] AB 672
The father accepts in his written submissions before me that the Registrar had in the Registrar’s submissions to the Principal Member made “a claim of irrelevance”[33] in response to the Principal Member’s request to explain its relevance.
[33] Page 11 of the applicant’s submissions dated 15 November 2013
On 7 May 2013 the father wrote to the Principal Member saying, inter alia, that he wished to be afforded the opportunity to respond to the Registrar’s submission and in relation to matters raised in [9] – [16] of the Registrar’s submissions (which included [12]), he wished to contest the claim of legal professional privilege and contest the orders being sought. The father indicated that he wished to take some time to “clearly and carefully articulate my reasons to you”[34]. The father did this on 8 May 2013 when he wrote to the Principal Member responding to the Registrar’s submissions of 3 May 2013. The father did not however respond to the Registrar’s submissions in respect of relevance[35].
[34] AB 674
[35] AB 675 - 676
In a decision dated 9 May 2013, the Principal Member, inter alia, determined:
11. However, the Registrar has contended (and I agree) that the documents are not relevant to the review and [the father] has not contended otherwise. The documents will not be taken into account by the SSAT in making its decision on the review, and the copy given to the SSAT will be returned to the Registrar.[36]
[36] AB 688
The father contends that:
67.1.What the Principal Member did was outside her enacted powers;
67.2.The Principal Member did not conduct a fair hearing and by doing so, denied the father procedural fairness;
67.3.The Principal Member was prohibited by s 103D Registration Act from conducting a hearing on this issue without oral submissions unless all parties consented.
The Registrar submits:
46. It was open to the SSAT to take into account that the applicant had not, in his response, advanced any reasons why the documents were relevant to the matters before the SSAT. Procedural fairness did not require the SSAT to specifically put the applicant on notice that it might reach that view, in circumstances where the applicant had been given:
(i) Notice that it wanted submissions on the point from the Registrar, and
(ii) An opportunity to respond to what the Registrar had submitted: see eg, Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 @ [9] (French CJ and Kiefel J) and the cases there cited.
Upon the father making an application for review, there is a legislative responsibility upon the Registrar to send to the Principal Member, “a copy of every document....that....is relevant to the review of the decision”[37] [emphasis added].
[37] Section 95(3)(b)(ii) Registration Act
Upon examining the disputed document, the Principal Member sought submissions as to why the disputed document was of relevance in the review hearing that was to take place.
The Principal Member was entitled to do so by ordering the Registrar to make written submissions pursuant to s 103F(4)(aa) Registration Act, if, as in this case, the Principal Member had formed the opinion she would be assisted by receiving those submissions. There is no provision in s 103F(4) for submissions in reply. The father however sought an opportunity to respond. He did so in writing.
There was no direction by the Principal Member pursuant to s 103D for there to be any hearing. The father argues there should have been and if there had been, he would not have consented to a hearing being conducted without oral submissions.
The father’s contentions and Ground 3 of the father’s Amended Notice of Appeal fail for the following reasons:
73.1.It is part of the Principal Member’s function under Division 2 Part VIIA Registration Act to receive only relevant documents[38].
73.2.The Principal Member is permitted to question the Registrar about whether a document the Registrar has sent is relevant[39].
73.3.The statute sets out a means for doing so[40] and what the Principal Member did was not outside her enacted powers.
73.4.As a matter of procedural fairness, the Principal Member is entitled to hear from a party prior to determining the relevance of a particular document the Registrar has sent. The Principal Member was not required to expose her thought processes or provisional views for comment before making the decision[41]. The father was afforded an opportunity to make a submission contrary to the Registrar’s submission that the disputed document was not relevant, but did not do so.
73.5.It is within the scope of the Principal Member’s powers under the Registration Act, when preparing relevant documents that will go to the Presiding Member, to determine the relevance of a particular document. The provisions of s 103D Registration Act, which require that all parties consent to a hearing being conducted without oral submissions, relate to a hearing of the review. That is not to say that, during that review hearing, objection could not be taken to the relevance of particular documents that have gone to the Presiding Member. The father in this case submits that it was the Presiding Member’s function and not the Principal Member’s function to make determinations of relevance. That cannot be so given the obligation that s 95(3)(b)(ii) Registration Act casts upon the Registrar to send and, by extension, the Principal Member to receive, documents that are relevant to the review of the objections officer’s decision. I consequently do not accept the father’s submission based upon s 103D Registration Act.
[38] Section 95(3)(b)(ii) Registration Act
[39] Section 95(3)(b)(ii) Registration Act
[40] Section 103F(4)(aa) Registration Act
[41] Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 @ [9]
WAS THE DISPUTED DOCUMENT RELEVANT IN ANY EVENT?
On the basis that I might reach the conclusion that the Principal Member was entitled to make a decision about relevance in respect of the disputed documents[42] and that I was subsequently shown to be incorrect about that conclusion, by consent, the parties agreed that pursuant to s 110G(2)(b) Registration Act, the court would make a finding of fact in relation to the relevance of the disputed document on the basis that it appeared to the court that it was convenient to do so having regard to the expeditious and efficient resolution of the whole of the matter to which the review by the SSAT related. For that limited purpose, the Registrar waived any claim of privilege relating to the disputed document, which was admitted into evidence provisionally subject to a finding in respect of relevance[43].
[42] AB 132 - 138
[43] Section 57(1) Evidence Act. I note in passing the Information Commissioner has provided a ruling in the father’s favour in relation to legal professional privilege. That ruling is currently being challenged by the Registrar in proceedings in the AAT. The father submits that he is entitled to a presumption of regularity, prior to any further ruling by the AAT. This dispute is of no relevance for my purposes, given the Registrar has provisionally waived privilege to allow a finding in respect of relevance
In LDME & JMA (SSAT appeal) [2007] FMCA fam 712, Halligan FM was invited to determine the application for change of assessment with reliance being placed on s 110G of the Registration Act. At [95] of that decision, Halligan FM referred to the Full Court of the Federal Court’s decision in Comcare v Etheridge [2006] FCAFC 27 where the Full Court of the Federal Court said in relation to an almost identical section in the AAT Act, that this is a power available to be exercised after the court has given consideration to the questions of law which constitute the subject matter of the appeal. If the answers to those questions, or any of them, lead to relief being granted to the applicant, the limited power to find facts which is vested in s 110G may be exercised where it is convenient to do so to avoid the need for the matter to be remitted to the Tribunal for further consideration. Whilst s 110G of the Registration Act would usually apply in circumstances where an appeal had been successful or partially successful, in unusual circumstances it is expeditious, given the issue raised, to make a finding as to the relevance of the disputed document.
The Registrar asserted that the disputed document was not relevant.
Relevance to the Appeal
The disputed document almost entirely dealt with the issue of whether or not the provision by the mother of documents to the Registrar (and information from them) breached the mother’s Harman obligation. The advice of the Department’s Principal Lawyer opined that it did[44]. That opinion was erroneous (see Pedrana[45]). There is a passing reference to the mother providing misleading information[46].
[44] AB 132
[45] (2012) 48 Fam LR 89
[46] AB 137
As I have found above, the merits review conducted by the SSAT under s 103S(1) of the Registration Act (and by the senior case officer pursuant to s 98 of the Assessment Act and by the objections officer pursuant to s 87(1) of the Registration Act), are independent of the penalty provisions contained in s 159 and s 159A of the Assessment Act and s 119(1) of the Registration Act. The disputed documents cannot rationally affect either directly or indirectly the assessment of the probability of the existence of any fact which the Presiding Member needed to consider arising from s 98S and s 117 of the Assessment Act, when making a decision about changing the child support assessment.
Accordingly, I find that the disputed documents were not relevant documents for the purposes of the hearing before the Presiding Member.
Relevance to the Application for Declarations
The disputed document has some indirect connection to the application for declarations and is admitted into evidence before me for that purpose. It is however of little weight. No matter what the Registrar’s lawyers may or may not have thought in hindsight and no matter what employees of the Registrar might have thought at some point, the question is whether or not what happened in June 2011 was a breach of the Harman obligation by either the mother or the Registrar.
THE FATHER’S APPLICATION IN A CASE FOR DECLARATIONS FILED 15 NOVEMBER 2013
By way of Application in a Case filed 15 November 2013, the father sought the following declarations:
1. A declaration that use by the Child Support Registrar of a single page of a contract to support a decision to advance an application for a CSAA Part 6A Change of Assessment is an inappropriate use of a document sourced by way of discovery in Family Court proceedings and the Child Support Registrar is prevented from using this Court sourced document in this way through the operation of the Harman Obligation.
2. A declaration that use by the Child Support Registrar of an aged single month’s share trading account statement to advance an application for a CSAA Part 6A Change of Assessment is an inappropriate use of a document sourced by way of discovery in Family Court proceedings and the Child Support Registrar is therefore prevented from using this Court sourced documents in this way through the operation of the Harman Obligation.
3. A declaration that use by the Child Support Registrar of a single month’s share trading account statement to calculate a full years share trading result in a situation where the full years share trading data was offered to the a [sic] decision maker, but declined, is an inappropriate use of a document sourced by way of discovery in Family Court proceedings and the Child Support Registrar is prevented from using this Court sourced document in this way through the operation of the Harman Obligation.
In making this application, the father relies upon the following paragraphs from Pedrana v Pedrana (No. 2)[47] which discuss what Kirby P said in Australian Securities Commission v Amplex Ltd and Ors (1995) 38 NSWLR 304:
41. His Honour [Kirby P] also makes the point that the approach he formulates does not remove the court’s role in dealing with any misuse of documents provided:
However, this does not remove the residual role of a court such as this to defend its process ex post from abuse consequent upon an improper issue of a s 33 notice. Thus, if the power conferred by the section were improperly used, such use could, in some cases at least, amount to a contempt of court…In a sense, this possibility provides a failsafe mechanism for superintendence by the courts; but in a way consistent with the language, purpose and intended operation of a notice given under s 33 of the Act.
42. In the current circumstance, if the Registrar or his delegate used documents for a purpose inconsistent with that purpose for which the documents were provided, the court retains the residual role to which Kirby P refers.
43. Justice of Appeal Sheller reached similar conclusions to Kirby P (at pages 529-532).
154. There are two statutory protections to the person who is affected by the provision of information to the Registrar. The first is s 150 CSAA.
155. The second is s 98G CSAA which requires the Registrar to give a copy of the application and any documents accompanying it to the other party. That party then has the ability to make an application to the court in the event he or she asserts there has been some clearly inappropriate use made of the information or the documents.
[47] (2012) 48 Fam LR 89
The father asks the court to make the declarations on the basis that there has been some clearly inappropriate use of these documents by the Registrar. The father alleges in this case that the use made by the initial case officer of extracts from a business contract and details from an account statement was improper.
There is a residual power in the court, even in circumstances where a subsequent statute has negated the effect of the Harman obligation, for the court to retain a supervisory role in relation to a clearly inappropriate use of documents.
The question in this case however is whether there has been any clearly inappropriate use of documents by the Registrar.
The father’s employment contract
On 1 June 2011 the Registrar received the mother’s COA. It included a single page from the father’s employment contract[48]. That page showed the Contract Price to be $380,550. When asked in the COA form to comment upon the income, property and financial resources or earning capacity of the father, the mother wrote, inter alia, “BUSINESS CONTRACT ® up TO VALUE of: $380,550[49]”.
[48] AB 42
[49] AB 31
When the senior case officer had a conversation with the father on 7 June 2011, the father told the senior case officer that the contract was over five years[50].
[50] AB 64
In the Notice of Decision, the senior case officer accepted the contract was over five years[51].
[51] AB 113
There was no use (let alone any clearly inappropriate use) made by the senior case officer of the single page from the father’s contract. The father however says that the case officer who first viewed the COA inappropriately used the document to action the application. That is not so. The case officer did not carry out full scrutiny. The case officer acted appropriately by referring the COA to be activated by the senior case officer.
The father’s share trading
On 1 June 2011 the Registrar also received from the mother six pages of the father’s share trading statements from Commsec for the month of December 2010[52].
[52] AB 51-56
In the COA, the mother wrote:
SHARE TRADING ACCOUNT ® up to value: $100,000
The father had at least three telephone conversations with the senior case officer. The first was on 7 June 2011 and there were two other conversations on 9 June 2011[53].
[53] AB 64 – 65, 68, 69 and RLP-2 of the father’s affidavit filed 14 October 2013
In the first conversation the senior case officer had with the father on 7 June 2011, the senior case officer records that the father provided the following information:
He has a commsec trading account...he said he lost around $25,000 in share trading this year due to the nuclear disaster in Japan...he says to go to his accountant and banks to get financial statements we need.[54]
[54] AB 64
On 9 June 2011 the senior case officer records:
[the father] believed that we had made a determination to proceed with the case based on the evidence supplied – I assured him that this was not the case and that as he is self-employed we would proceed with the case without any evidence being produced at all from [the mother] and explained to him why.[55]
[55] AB 68
The father gives the following evidence[56]:
12. On 06 June 2011 [the registrar’s records show this conversation took place on 7 June 2011], before the application lodged by [the mother] was provided to me, I advised my assigned Senior Case Officer (herein “SCO”), SCO [Ms A], of my share trading activities (1 hour and 9 minutes into the phone call). The conversation went on for 10 minutes. One hour and 25 minutes into the call, I advised her specifically of the COMSEC share trading accounts. During that phone call I offered to provide full year accounts but SCO [Ms A] declined the offer, instead undertaking to obtain all relevant financial records herself (using powers under section 161 of the CSAA). On the basis of that conversation and undertaking I did not provide the full share trading accounts as part of my COA response.
13. On 01 August 2011 the SCO made a COA decision....
[56] Father’s affidavit filed 15 November 2013
The Notice of Decision by the senior case officer on 1 August 2011 included the following in the reasons for decision:
In regards to the worth of the share trading account [the father] states the amount [the mother] mentions was a pre-settlement amount and that post separation he has used this to help pay her a cash settlement of $100,000. He states post settlement he has around $23,000 in the share portfolio. Documentation from the share portfolio provided by [the mother] shows an estimated security calculation amount of $101,272 as at 31 December 2010 in the portfolio.[57]
[57] AB 113
Later, the senior case officer sets out a table which indicates that in the 2010/2011 financial year, the father deposited from the share trading account into his business account an amount of $70,200 and noted that the husband used his business account to trade shares. The senior case officer notes that in the same financial year, $23,516 was transferred from the business account back into the share trading account.[58]
[58] AB 115 - 116
The senior case officer then says:
The above figures align with what [the father] has advised was in his share portfolio prior to property settlement (being around $100,000) and what is the balance of his share portfolio now, being around $23,000. He advises that he has used monies from his share portfolio to assist in payment of his settlement to [the mother] in March 2011. As shown above an amount of $35,000 in total was transferred from his trading account into his business account in March and in that same month an amount totalling $35,000 was transferred from the business account to other unidentified account/s. I am satisfied that the transference of $35,000 was for the purpose of addressing his property settlement especially when taken into consideration with an amount of $66,920 being deposited into his personal account in March 2011 from a term deposit. Both figures approximately equate to $100,000, which is what the court orders provided by [the father] require he is to pay [the mother] as part of her property settlement. $70,200 from his share portfolio minus the $35,000 for part of his settlement, minus the $23,516 transferred back into his share portfolio leaves a balance of $11,684 in [the father’s] business account. This can be considered a financial resource for [the father], as part of his business trading profits and therefore part of his income.....[59]
[59] AB 116
The father makes the following written submission:
Despite the father offering a complete set of share trading accounts for the FY 2010/2011 and the CSR refusing them instead undertaking to get the data herself, and then not getting the data.....and despite, as is evident in paragraph 15 of the CSR submissions, the father had he indicated a share trading loss....the CSR went on to use the court sourced single month of share trading data in a most unreasonable and impermissible manner to conclude that there had been a substantial profit. Both the objection’s officer and the SSAT later found that there had been, indeed, a significant loss.[60]
[60] The father’s Submission in Reply [Appeal and Application in a Case] filed 7 February 2014, pages 20 - 21
I do not accept the father’s submission. As the passages quoted above demonstrate, the senior case officer did not use the court sourced single month of share trading data to carry out the calculation that there was a profit. The calculation the senior case officer did, to find a profit of $11,684, was based upon movements in the share trading account recorded in the father’s business accounts. None of those movements in the 2010/2011 financial year, relied upon by the senior case officer, were in December 2010.
Upon the two subsequent reviews, it was accepted that any share trading profit was part of the father’s business income. The objections officer stated:
SHARES
Searches were conducted via a Section 161 notice compelling Commsec to provide information regarding [the father’s] share trading over the last two financial years.
[The father’s] company also provided a Section 161 response with a spreadsheet that the company uses to keep track of share profits and losses, which is then provided to the accountant.
I am satisfied that this evidence establishes share trading rather than share investment activities are conducted. This means that the net business income of the trust should include the net profit or loss made on its share trading activities each year.[61]
The SSAT said:
67. The Tribunal examined the information regarding the share trading business, and was reasonably satisfied that this was accurately reflected in the Trust tax returns, and that there were no additional benefits accruing to [the father] from this.[62]
[61] AB 428
[62] AB 18
I find that there was no inappropriate use made by the case officer or the senior case officer of the father’s December 2010 share trading statement provided by the mother to the Registrar.
Conclusion
There is no evidence that the Registrar used the documents provided by the mother, that the mother had obtained during the course of the family law proceedings, in any way that would enliven the court’s residual supervisory jurisdiction.
Further, the use of the documents to which the father complains occurred at a preliminary stage of the application proceedings before the Registrar, in circumstances where the Registrar did not rely upon the documentation, in determining the departure application.
The case officer was entitled to use the documents provided by the wife in the way the case officer did. That use was not inappropriate.
Accordingly, the father’s Application in a Case filed 15 November 2013 shall be dismissed.
APPLICATION FOR DISQUALIFICATION
On 9 December 2013 the father filed an application seeking an order that I disqualify myself from hearing these proceedings on the grounds of apprehended bias.
On 14 February 2014 I made an order dismissing the father’s application that I disqualify myself. I reserved the delivery of my reasons for making that order. I now provide those reasons.
Legal principles
The plurality in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, at page 344 referred to the governing principle established by authorities culminating in Johnson v Johnson (2000) 201 CLR 488 as follows:
... subject to qualifications relating to waiver ...
... a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done.
... Its application requires two steps. ... First, it requires the identification of what it is said might lead a judge ... to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of a logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
... Judges have a duty to exercise their judicial functions when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong. They do not select the cases they will hear, and they are not at liberty to decline to hear cases without good cause. Judges do not choose their cases; and litigants do not choose their judges.
... if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.
In Johnson v Johnson (2000) 201 CLR 488, the High Court said:
... the test is objective ... the observer is taken to be reasonable; and the person being observed is “a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial”.
Mason J in Re JRL; Ex Parte CJL (1986) 161 CLR 342; (1986) FLC 91-738, said at 352:
... It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. ... Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.
The word relied upon by the father
On 15 May 2012 I determined and gave reasons in a case between the parties[63]. The father bases his application for disqualification upon my use of the word “audacious” at [134] of that judgment. That paragraph is as follows:
134. It also follows that the father had a duty himself to provide the Registrar with full and frank disclosure of exactly the same kind that he provided the mother in the previous family law proceedings. Given the father’s obligations under s 159(1) CSAA, the position he has taken to the Registrar using the information and documents is indeed, to use the word of the mother’s lawyer, audacious.
[63] Pedrana v Pedrana (No. 2) (2013) 48 Fam LR 89
The previous case had proceeded on the basis that there were a number of agreed facts, other uncontroversial facts and a number of agreed principles and on the basis of written and oral submissions. Neither parent gave written or oral evidence and there was no cross examination.
The Registrar sought a declaration that the Registrar was not prevented by reason of any undertaking to the Family Court from using information and documents sent by the mother to the Department as part of the application signed by her on 23 May 2011. The father opposed that declaration being made.
The agreed facts were set out in [24] of the judgment as follows:
24.The parties agree on the following factual matters:
24.1[Mr Pedrana] provided documents to [Ms Pedrana] pursuant to an order made by the court in these proceedings on 16 December 2010.
24.2On 1 June 2011, [Ms Pedrana] sent the Department of Human Services (“the Department”) an application for a departure determination under Division 2 of Part 6A of the CSAA, which contained information from and copies of, certain of those documents.
24.3Around 7 June 2011, a Departmental officer sent a copy of the application (including the attached documents) to [Mr Pedrana] in the context of seeking his response to that application.
24.4[Mr Pedrana] advised the Department of his view that the Registrar’s delegate was not entitled to use the documents.
24.5Around 1 August 2011, a delegate of the Registrar referred to certain information that had been contained in the court documents in the written decision on the departure determination.
There were other uncontroversial facts, including the fact that on 3 August 2011 the Registrar reassessed child support payable by the father to the mother as being $12,634 annually.
In the affidavit in support of the application filed by the father on 9 December 2013, the father asserted that he took the statement made in the second sentence of [134] to mean that I had erroneously thought that the father was audaciously on a mission to prevent the Registrar from having access to information and documents and he asserted that that was not the case. The father now asserts that what he was attempting to prevent by the application made in 2012 was the Registrar using partial information and part documents provided by the wife from documents he had provided her.
That was by no means apparent when the application was made before me in 2012. In fact, in 2012 there was no information whatsoever about what documents had been provided by the father to the Registrar.
In his affidavit filed 9 December 2013, the father hypothesises that the word “audacious” might have been meant to apply to the father bringing the matter to court, pressing the matter in court or filing an application for a case to be stated to the Full Court. The father sets out information and reasons why an impression that he was “audacious” about any of those actions by him would be an error.
The use of the word audacious in paragraph 134 is confined to the context in which it has been used in that paragraph. The position which the father took before me was presented in the form of a response to the Child Support Registrar’s application in a case, written submissions filed on 15 March 2012 (see [12] of Pedrana v Pedrana (No. 2)) and oral submissions. The comment made in the last sentence of [134] relates to the presentation of the father’s case. I accepted in that paragraph the mother’s lawyer’s characterisation that the mother was in breach of the Harman obligation as audacious in circumstances where the matter proceeded before me on the agreed factual basis which was set out at [24] of the judgment. Paragraph 134 records that the father’s submission was that the Registrar could not rely upon documents provided by the mother which she had obtained from the father, which he himself had an obligation to give to the Registrar. No extrapolation by the father using other information which was not before the court in 2012 can add different meaning or colour to the possible use of that word by me. What was said in [134] when taken in context was unremarkable.
Given the limited underlying factual information which I was given in Pedrana, the errors that the father hypothesises that I may have made are not open.
The observation made in [134] was not and could not reasonably be construed as going to the credit of the applicant.
Further, even if the first step is established and there is apprehended bias, there is no logical connection between the appeal and the application in a case I am asked to determine and the statement made in [134].
The first decision was determined primarily on agreed facts and agreed principles and involved the determination of a particular question of law. The current appeal is based upon different questions of law. The stand-alone application for declarations to be made that the CSA not be able to rely on documents provided by the mother on 1 June 2011, is based upon additional evidence upon which the father seeks to rely.
I find that a fair minded lay observer would not reasonably apprehend that I may not bring an impartial mind to the resolution of the questions I am asked to determine in the appeal and the father’s other application.
Waiver
There is another reason why the father’s application to recuse myself fails. As earlier indicated, the plurality in Ebner qualified the governing principle in the event that there was waiver.
In Smits v Roach (2006) 227 CLR 423 the High Court said:
Where a litigant aware of circumstances providing a ground for objection on the basis of disqualification, fails to object promptly, that litigant will be taken to have waived the objection and cannot later rely on it. [per Kirby J at page 466]
The concern upon which the father relies would have been apparent to him upon the matter first being listed before me on 16 September 2013.
The following exchange took place between the father and myself:
HH
Do you have any difficulty with me hearing the case, [Mr Pedrana], or do you want some other judge....
[Mr Pedrana]
Your Honour, I would prefer that you heard the case.
I find that on 16 September 2013 there was an express waiver by the father of any right he had to press a disqualification application.
Conclusion
The father’s application that I disqualify myself is dismissed.
I certify that the preceding one hundred and thirty-one (131) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 5 March 2015.
Associate:
Date: 5 March 2015
SCHEDULE 1
Documents relied upon
Father
Amended Notice of Appeal (Child Support) filed 15 November 2013
Appeal Book filed 1 November 2013
Application in a Case filed 29 October 2013
Father’s affidavit filed 29 October 2013
Application in a Case filed 15 November 2013
Affidavit of the father filed 15 November 2013
Notice to Admit Facts filed 15 November 2013 Submissions– Errors of Law/Practice and Procedure/Writ of Mandamus filed 15 November 2013
Submissions– Inappropriate Use of Court Sourced Documents filed 15 November 2013
Application in a Case filed 9 December 2013
Affidavit of the father filed 9 December 2013
Submissions– Recusal of Justice Watts filed 10 January 2014
Submission in Reply – Appeal and Application in a Case filed 7 February 2014
Submissions in reply filed in court on 14 February 2014
Exhibit 3 including RLP-2 to father’s affidavit filed 29.10.13 being a transcript of conversation between the father and Ms A, senior case officer on 9.6.11 and RLP-3 letter from Ms C, Senior Assistant Ombudsman to the Department of Human Services 22.3.13.
Child Support Registrar
Submissions filed 12 December 2013
Response to an Application in a Case filed 6 February 2014
Supporting Affidavit of Nick Gouliaditis (Solicitor for CSR) filed 6 February 2014
Submissions on Disqualification Application filed 6 February 2014
Documents relevant to the application to reopen the hearing
Father’s Application in a Case filed 4 February 2015
Father’s affidavit filed 4 February 2015
Registrar’s Response to the Application in a Case filed 11 February 2015
Affidavit of Mr M filed 12 February 2015
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Statutory Interpretation
Legal Concepts
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Appeal
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Jurisdiction
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Procedural Fairness
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Costs
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Judicial Review
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Standing
0
6
4