Peters and Peters and Ors
[2012] FamCAFC 105
•20 July 2012
FAMILY COURT OF AUSTRALIA
| PETERS & PETERS & ORS | [2012] FamCAFC 105 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – application by wife for lump sum child maintenance – application summarily dismissed at first instance – wife appealed – majority of wife’s submissions and grounds of appeal without merit – however, first instance judge did not indicate to the wife that her Honour was considering summarily dismissing her application – denial of procedural fairness – appeal allowed. FAMILY LAW – APPEAL – applications to adduce fresh evidence by wife – husband led evidence in reply – further evidence of both wife and husband did not assist wife, but would have instead buttressed findings at first instance – further evidence can be admitted on this basis – however, doing so in this instance would compound procedural unfairness to the wife – wife entitled to properly challenge the evidence – wife’s applications to adduce further evidence dismissed. FAMILY LAW – CHILD SUPPORT – interpretation of Child Support (Assessment) Act 1989 (Cth) – meaning of ‘resident of Australia’ – effect of residency of a ‘reciprocating jurisdiction’ – where both parents are not residents of Australia, even if residents of a reciprocating jurisdiction, cannot apply for child support via the Australian child support scheme. |
| Child Support (Assessment) Act 1989 (Cth) ss 10, 24, 25, 29A, 29B Child Support (Assessment) Regulations 1989 (Cth) reg 3 |
| CDJ v VAJ (1998) 197 CLR 172 Collins & Collins (1985) FLC 91-603 Edwards & Edwards (2006) FLC 93-306 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 Haydon & Bennett and Anor [2012] FamCAFC 89 I & I (No 2) (1995) FLC 92-625 International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319 Re F: Litigants in Person Guidelines (2001) FLC 93-072 |
| APPELLANT: | Ms PETERS |
| 1ST RESPONDENT: | Mr M PETERS |
| 2ND RESPONDENT: | Mr R PETERS |
| 3RD RESPONDENT: | F Pty Ltd |
| FILE NUMBER: | TVC | 1541 | of | 2007 |
| APPEAL NUMBER: | EA | 105 | of | 2010 |
| DATE DELIVERED: | 20 July 2012 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Faulks DCJ & Thackray J |
| HEARING DATE: | 18 October 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 July 2010 |
| LOWER COURT MNC: | [2010] FamCA 245 |
REPRESENTATION
| APPELLANT: | In person |
| SOLICITOR FOR THE 1ST RESPONDENT: | Moira Ryan Lawyers |
| COUNSEL FOR THE 1ST RESPONDENT: | Mr Ladopoulos |
| SOLICITOR FOR THE 2ND RESPONDENT: | Not represented |
| SOLICITOR FOR THE 3RD RESPONDENT: | Not represented |
Orders
That the appeal be allowed.
That the wife’s application in a case filed in the Federal Magistrates Court on
2 October 2009 seeking lump sum child maintenance be remitted for hearing to be heard in the Sydney Registry of the Family Court of Australia.
That the wife’s applications to adduce further evidence filed on 2 October 2011 and 14 November 2011 be dismissed.
That leave to file a further application to adduce further evidence by the wife is refused.
That the respondent husband be granted a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the husband in respect of the costs incurred by him in relation to the appeal.
That the applicant wife be granted a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth), being a certificate that, in the opinion of the Court, it would be appropriate for the
Attorney-General to authorise a payment under that Act to the wife in respect of the costs incurred by her in relation to the appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Peters & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 105 of 2010
File Number: TVC 1541 of 2007
| Ms Peters |
Appellant
And
| Mr M Peters |
1st Respondent
And
| Mr R Peters |
2nd Respondent
And
| F Pty Ltd |
3rd Respondent
REASONS FOR JUDGMENT
Introduction
In this matter the wife appeals an order made by Ainslie-Wallace J dismissing her application for lump sum child maintenance. The application before her Honour was a review of a decision of Judicial Registrar Johnston (as he then was) dismissing the wife’s application for lump sum child maintenance. The review proceeded as a hearing de novo (Family Law Rules 2004 (Cth) r 18.10).
In her application, the wife sought to invoke the jurisdiction of the Family Court (“the Court”) under Division 7 of Part VII of the Family Law Act 1975 (Cth) (“the Act”) in relation to child maintenance, contending that the provisions of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”) have no application because neither she nor the husband are Australian residents.
Her Honour also had before her applications for injunctions involving related financial matters that she stood over to be considered on another date.
There is continuing litigation pending in the Court regarding financial matters that is listed for a hearing of some six days.
Decision under Appeal
Her Honour set out a short background to the matter, noting that the husband and wife married in 1994 and that there is one child of that marriage who lives with the wife in Sri Lanka. Her Honour noted that the child was the subject of an order placing him under the guardianship of the District Court of Galle, Sri Lanka, and the wife has sole custody.
Her Honour noted that the wife had applied for property settlement orders relating to the marital assets and had sought to join the husband’s adult son to those proceedings.
Her Honour noted the evidence in support of the wife’s application, including affidavits outlining her financial circumstances, her reasons for not having made an application to the Child Support Agency, alleged debts for both her living expenses and maintenance of the child amounting to $352 000, and allegations against the husband and his adult son.
Her Honour found that although the wife had attached a number of documents to her affidavit, none of that material was admissible or persuasive of the allegations she made. Her Honour then noted the husband’s affidavit evidence where he deposed that his health had declined to the point where he was not able to earn an income and was reliant on money from his adult son and support from his friends.
Her Honour then noted that s 10 of the Assessment Act provides that for the purposes of that Act, “a person is a resident of Australia on a day if on that day the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936”. She noted that although the wife had alleged that both she and the husband were living overseas “and thus fall outside of the Child Support Scheme mechanism”, there was no evidence that the husband was in fact living overseas, and that he had asserted in his affidavit that he is “living in Australia” (at paragraph 15).
Having observed that s 66E of the Act prevents the Court from making a maintenance order for a child if an application for administrative assessment of child support could properly be made under the Assessment Act, her Honour noted that the wife had not made such an application to the Child Support Agency and that there was no impediment to her taking that course, with the result that there was no jurisdiction reposed in the Court to make the orders sought by her.
Her Honour noted that in the event that the Court could make an order, she would still decline to do so as the wife did not establish the reasonable needs of the child nor provide evidence of the husband’s capacity to make a financial contribution to those needs.
Her Honour accordingly dismissed the application.
Grounds of Appeal
The grounds of appeal as drafted by the wife are as follows:
a) Lack of Procedural Fairness
b) Errors of Fact Amounting to Errors of Law
c) Trial by Surprise
d)Failure to Consider Child Support (Assessment) Act and Family Law Act
e)Failure to properly consider the material in the submissions of the self represented mother
The orders sought in the appeal, whilst including an order that the orders under appeal be discharged, otherwise largely comprise orders which could not be the subject of orders of the Court.
In the notice of appeal under each of the grounds, the wife set out her arguments in support. It is convenient to deal with the grounds of appeal in two groups. The first area relates to lack of procedural fairness and encompasses grounds (a) and (c) as drafted by the wife:
a) Lack of Procedural Fairness
b) Trial by Surprise.
The second group collects together the following grounds, as drafted by the wife:
a) Errors of Fact Amounting to Errors of Law
b)Failure to Consider Child Support (Assessment) Act and Family Law Act
c)Failure to properly consider the material in the submissions of the self represented mother.
Relevant legislation
Before turning to the grounds it is appropriate to consider the legislation governing the Court’s jurisdiction to make child maintenance orders that the wife seeks to invoke.
Child support in Australia is governed by the Assessment Act and is largely an administrative process. It is common ground that the wife has not made an application for child support under the Assessment Act.
Part VII Division 7 of the Act deals with child maintenance. Section 66E(1) prevents a court from making an order under Part VII if “an application could properly be made, at that time, by the applicant under the Child Support (Assessment) Act 1989 for the respondent to be assessed in respect of the costs of the child…”. Section 66E(2) provides for subsection (1) to have effect whether or not an application for administrative assessment of child support has been made. Thus it can be seen that jurisdiction of the Court to hear and determine the wife’s application depends upon her establishing that an application could not properly be made for child support under the Assessment Act.
The wife contends that there is no basis on which she could apply for child support under the child support legislation and thus the Court has jurisdiction to entertain her application. It thus becomes necessary to consider the relevant applicable child support legislation.
We now turn to the provisions of the Assessment Act which govern the jurisdiction of the Registrar to accept an application. In this case the ability to make an application is governed by s 24, which relevantly provides:
(1)Application may be made to the Registrar for administrative assessment of child support for a child only if:
(a) the child is:
(i)an eligible child; and
(ii)under 18 years of age; and
(iii)not a member of a couple; and
(b)except in a circumstance referred to in subsection (2), either or both of the following subparagraphs applies or apply in relation to the child:
(i)the child is present in Australia on the day on which the application is made;
(ii)the child is an Australian citizen, or ordinarily resident in Australia, on that day.
(2)Paragraph (1)(b) does not apply to an application for administrative assessment of child support if:
(a) all of the following apply:
(i)the application is made under section 25 for a parent to be assessed in respect of the costs of the child;
(ii)the parent of the child is a resident of a reciprocating jurisdiction;
(iii)the Registrar has not determined under section 29A that child support is reasonably likely to be payable by the parent; or
(b)…
In this case, the child fulfils the criteria in s 24(1). He is an “eligible child”, is under the age of 18 and is not a member of a couple. Although not present in Australia, he appears to be an Australian citizen. The question of whether he is ordinarily resident in Australia is the subject of some dispute. But his citizenship of or residence in Australia is not required to found jurisdiction as the mother is a resident of Sri Lanka, which is a “reciprocating jurisdiction” under the Assessment Act (see reg 3 of the Child Support (Assessment) Regulations 1989 (Cth) and Schedule 2 of the Child Support (Registration and Collection) Regulations 1988 (Cth)).
Section 25 relates to persons who may apply and deals with parents. It provides as follows:
A parent (the applicant) of a child may apply to the Registrar under this section for administrative assessment of child support for the child if:
(a)the applicant applies for both parents to be assessed in respect of the costs of the child; and
(b)the applicant is not living with the other parent as his or her partner on a genuine domestic basis (whether or not legally married to the other parent); and
(c)the applicant complies with any applicable requirements of section 26 (dealing with joint care situations) and section 26A (dealing with children cared for under child welfare laws); and
(d)if either parent of the child is not a resident of Australia on the day on which the application is made—the application meets the requirements of sections 29A and 29B.
(original italics)
It will be seen in particular that s 25(d) requires that if either parent is not a resident of Australia on the day on which the application for child support is made, then the application must meet the requirements of ss 29A and 29B. In this case, it appears that although the wife is an Australian citizen by birth, she is not a resident of Australia within the meaning of the Assessment Act and contends the husband is not either.
Section 29A deals with applications for child support made against a parent who is not resident in Australia on the day on which the application is made. When read with other provisions, the effect is that the person by whom child support is payable must be an Australian resident or a resident of a reciprocating jurisdiction. It relevantly provides as follows:
(1)This section applies if:
(a)an application is made under section 25 … for a parent to be assessed in respect of the costs of the child; and
(b)the parent is not a resident of Australia on the day on which the application is made.
(2)The Registrar must determine whether child support is reasonably likely to be payable by the parent.
(3)If the Registrar determines that child support is reasonably likely to be payable by the parent, the application is taken to have been properly made only if:
(a)subsection 24(2) does not apply in relation to the child (payee of child support resident in reciprocating jurisdiction); and
(b)the parent is a resident of a reciprocating jurisdiction on the day on which the application is made.
Note: If an application is not properly made, the Registrar must refuse the application under section 30.
Section 29B relevantly provides:
Applications by residents of reciprocating jurisdictions
(1) If a person applying under section 25 … is a resident of a reciprocating jurisdiction, the application must be made:
(a) by the person and given to the Registrar by an overseas authority of the reciprocating jurisdiction; or
(b) if an overseas authority of the reciprocating jurisdiction believes that child support is reasonably likely to be payable to the person in respect of a child – by the overseas authority on behalf of the person; or
(c) if the person believes that child support is reasonably likely to be payable by him or her to another person in respect of a child – directly to the Registrar by the person.
As we have earlier recorded, the wife contends that the husband is not resident in Australia. She contended for this position before Judicial Registrar Johnston and before her Honour. She continues to make that submission on appeal. She contends that as both she and the husband are not resident in Australia but rather are resident in Sri Lanka, she cannot apply for child support under the Assessment Act.
The complex sections of the child support legislation to which we have referred are not easy to interpret; however, the effect of their interplay, although not easy to interpret, is that if both the payee parent and the payer parent are not residents of Australia, even if both are living in a reciprocating jurisdiction, the Child Support Registrar could not properly accept an application for an assessment of child support even though the child is an Australian citizen.
This conclusion is fortified by reference to the Explanatory Memorandum accompanying the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 (Cth), which introduced the current version of s 29A into the Assessment Act, among other amendments. The Explanatory Memorandum says at page 37:
One parent to reside in Australia
In several provisions, the need for one parent to reside, or continue to reside, in Australia is being clarified. Some of the provisions currently envisage that both parents may live overseas – this is not the intended policy. Such cases should not be dealt with under Australian child support law.
We note that if the wife were to be correct in her contention that both parents were not resident (as defined) in Australia, she would be nevertheless be able to invoke the jurisdiction under the Act to make orders for child maintenance. This is because s 69E(1) of the Act confers jurisdiction on the Court in various circumstances including where the child or a party is an Australian citizen.
Lack of Procedural Fairness Grounds
Judicial Registrar Johnson determined that the Court could not exercise jurisdiction under the Act because an application could properly be made under the Assessment Act. In dismissing the wife’s application, her Honour made the same finding. While neither judicial officer considered in detail the child support legislation, nor was directed to it, in both cases they so found on the basis of the wife’s inability to satisfy the Court that the husband was not resident in Australia (as defined by the Assessment Act) and thus an application for child support could be made and would be accepted.
Her Honour dealt with this issue in paragraph 15 of her judgment. The paragraph itself can be broken down into three components forming the basis for the decision. First, the wife had claimed in her most recent affidavit that both she and the husband were “living overseas” and thus fall outside of the Assessment Act scheme. Second, there was no evidence that the husband was in fact “living overseas”, and he had sworn in an affidavit in October 2009 that he was “living in Australia”. Third, the husband had engaged Australian solicitors to conduct his family law litigation for him.
It seems to us that the third statement cannot in any way be dispositive of the question of whether the husband was an Australian resident. We also have some concerns that the language used by her Honour does not correspond with the language in the legislation. The question is whether the parent is “a resident of Australia on the day on which the application is made”, not whether they “live” in Australia. Her Honour’s conclusion in paragraph 15 that she could “make no finding that both parties are living out of the jurisdiction” does not seem to be dispositive of the question that she had to answer.
The Assessment Act provides in s10 that “[f]or the purposes of this Act, a person is a resident of Australia on a day if on that day the person is a resident of Australia for the purposes of the Income Tax Assessment Act 1936 otherwise than because of subsection 7A(2) of that Act”. Although in paragraph 14 of the judgment, her Honour refers to s 10 and appears to have been cognizant of the definition of “resident of Australia”, she did not refer to any matters that might pertain to the definition and appears to have determined the matter on a finding that the husband was living in Australia. As we have said, that would not appear to be the correct test.
Her Honour was correct in our view in indicating that many of the documents attached to the wife’s material, while supportive of the allegations regarding the husband’s country of residence, were inadmissible. In joining issue on this point, the husband says at paragraph [28] of his affidavit filed on 14 October 2009, “I am currently living in Australia and [as] I do not wish [Ms Peters] to know my whereabouts I caused my Solicitor [sic] to confirm that any communications can be sent via the Notice of Address I have lodged with this Court”. Again, however, that evidence does not deal with the relevant definition and is not probative of the issue in dispute.
As her Honour summarily dismissed the application, we cannot be certain that her Honour applied the correct test. As we cannot be certain that the correct test was applied, it is necessary to consider the totality of the circumstances in which her Honour disposed of, and dismissed, the application.
The Evidence upon which Her Honour Relied
Her Honour identified that the wife relied upon an affidavit filed on 2 October 2009 (“the first affidavit”), which was originally filed in support of an application in the Federal Magistrates Court, and on an affidavit filed on 23 June 2010 (“the second affidavit”) supporting her application for review of the decision of Judicial Registrar Johnston. Her Honour identified that the husband had filed an affidavit on 14 October 2009 in the proceedings before Kemp FM. There is no challenge to her Honour’s findings as to the evidence properly before her.
The wife asserts in paragraph 6(b)(i) of her first affidavit that “[Mr Peters’] whereabout [sic] is unknown and it is difficult for me to lodge an application with the Child Support Agency”. She then deposes to the fact that the husband has stated that he is “living in Italy and France”, “leaving Sri Lanka”, “that he would live in Hong Kong”, and “that he will not live in Australia”. But none of these matters go to the question of whether he is a resident as required by s 10 of the Assessment Act and indeed, the wife’s affidavit does not assert that he is not a resident of Australia but rather that his whereabouts are unknown.
The affidavit of the husband filed on 14 October 2009 is somewhat clearer, at least as far as his position is concerned, but similarly is not entirely dispositive of the issue. In paragraph 28 of his affidavit he says, “In reference to my whereabouts, [Ms Peters] wrote to my Solicitor to obtain details of my address. I am currently living in Australia and [as] I do not wish [Ms Peters] to know my whereabouts I caused my Solicitor to confirm that any communications can be sent via the Notice of Address I have lodged with this Court”.
However, the wife’s second affidavit takes the matter somewhat further. At paragraph 3 the wife points out that in a judgment delivered on 27 October 2009, Kemp FM said at paragraph 15, “The wife is living in Sri Lanka and the husband appears also to live there”. The wife makes other assertions at paragraphs 4, 5, 6 and 7 that:
·At a hearing on 1 June 2010 the husband’s solicitor advised that the husband was in Sri Lanka.
·In the application for divorce filed by the husband, he stated that he had been in Sri Lanka for the last 12 months.
·At a conciliation conference on 21 October 2008 he participated by phone link from Sri Lanka.
·In an affidavit filed on 23 September 2008 he gave an address Sri Lanka [sic].
At paragraphs 9 and 10 of the second affidavit, the wife clearly indicated the basis upon which she sought that the Court exercise jurisdiction under s 66E of the Act, namely that both the husband and wife were not residents of Australia.
We accept that the evidence before her Honour on the issue of jurisdiction was brief and certainly inadequate to find conclusively at this point that the Court had jurisdiction. However, the question raised on appeal is whether her Honour denied procedural fairness to the wife in summarily dismissing the application.
The majority of the submissions made by the wife in relation to these grounds cannot be accepted and we will deal with them in short compass. First, the wife alleges that she was not allowed time to prepare and respond to the father’s affidavit filed on 14 October 2009. It appears that the wife, who appeared by telephone during the proceedings, did not have with her the father’s affidavit sworn the previous year. Her Honour adjourned the proceedings so that the documents could be sent electronically to the wife so no prejudice thereby arises.
Secondly, many of the submissions under this ground relate to an application seeking injunctions filed 16 July 2010 and supported by two affidavits filed on that same day. The deponents of those two affidavits were the husband’s solicitor (affidavit sworn 14 July 2010) and the husband’s son, the second respondent (affidavit sworn 13 July 2010). The wife says this material was unfairly considered and read by her Honour. Her Honour however did not take the affidavits filed in support of that application into account in these proceedings. The matters in the affidavits related to the husband’s application for injunctions which her Honour stood over to a date to be considered along with the balance of the applications between the parties. Her Honour did not rely upon material from those affidavits and no unfairness could be occasioned to the wife as a result.
However there were matters which we consider led her Honour into error and did result in procedural unfairness to the wife. Whilst the issue of jurisdiction in relation to the exercise of power under s 66E had to be considered, as we have pointed out the evidence was equivocal on both sides. We note again that the wife was appearing by telephone from Sri Lanka and was unrepresented whilst the husband had legal representation.
Her Honour adopted the somewhat unusual position at the hearing of asking whether there was anything further the wife wished to add to the material and then indicating that judgment would be reserved.
The wife was given an opportunity to respond in relation to the affidavits filed on behalf of the husband on 16 July 2010 regarding financial matters, and as a result her Honour stood that matter over. At no time, however, did her Honour indicate to the wife that she was considering summarily dismissing the application for child maintenance. Further, it would not have been clear to the wife to what use her Honour intended to put the affidavits filed at the hearing. The husband had filed on 16 July 2010 an outline of case dated 15 July 2010, the day before the hearing, in which he sought a summary dismissal of the wife’s application, but there was no indication that the wife was aware of it, or if she was, whether she understood its implication to the proceedings before
her Honour. Nor did counsel for the husband allude to the fact that he was seeking summary dismissal.
Conclusion
In our view, given that the wife was attending by telephone from Sri Lanka and given the fresh material that had recently been filed, her Honour had an obligation to:
·identify the applications that had been filed and the affidavits in support of each;
·identify the issues before her Honour for determination and the evidence relevant to each;
·identify the elements necessary to attract jurisdiction; and
·make it clear what applications her Honour was addressing and explain to the wife any procedures relevant to the litigation: see Re F: Litigants in Person Guidelines (2001) FLC 93-072.
Had this occurred, it may have become clear that the wife was not aware of the summary dismissal application. This was all the more important as the wife was labouring under the difficulty of being on the phone from Sri Lanka.
In International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319, Chief Justice French said at page 354:
Procedural fairness or natural justice lies at the heart of the judicial function. In the federal constitutional context, it is an incident of the judicial power exercised pursuant to Ch III of the Constitution. It requires that a court be and appear to be impartial, and provide each party to proceedings before it with an opportunity to be heard, to advance its own case and to answer, by evidence and argument, the case put against it.
See also Edwards & Edwards (2006) FLC 93-306 and Haydon & Bennett and Anor [2012] FamCAFC 89.
In our view, despite what might have been the shortcomings in the wife’s case, she was denied procedural fairness. This ground is established and the appeal should be allowed.
As we have found merit in the procedural fairness complaint, and propose to allow the appeal, we do not need to deal in detail with the following comments by her Honour in paragraph 18 of her judgment, which are also the subject of challenge:
Even if it were the case that this Court could make an order for child maintenance, I would decline to do so. Ms [Peters] has not established by evidence the reasonable needs of the child …, nor is there any evidence of Mr [Peters’] capacity to make a financial contribution to those needs.
In our view, suffice it to say that the matter is not so clear. Her Honour was aware that there were financial proceedings before the Court and there are assertions by each of the parties against the other as to their financial circumstances. There was a concession that the husband was not paying support for the child who was being solely supported by the wife. It seems to us that her Honour was aware that there were complex financial proceedings before the Court such that the question of the husband’s capacity to pay would more properly have been dealt with in a single hearing which canvassed all of the evidence. It was a matter very much in dispute. However, as we have already determined that the appeal should be allowed, there is no need to address this any further.
We have not addressed in these reasons a number of other complaints by the wife as they relate largely to the application of the Act. Her Honour was dealing only with the question of jurisdiction. Thus the question of how that jurisdiction might have been exercised, if her Honour had accepted it, does not arise at this point.
Further evidence
The wife sought to adduce further evidence both at appeal and subsequently. Admission of further evidence in the Court is governed by s 93A(2) of the Act, which provides:
(2) Subject to section 96, in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence upon questions of fact, which evidence may be given:
(a) by affidavit; or
(b)by oral examination before the Family Court or a Judge; or
(c)as provided for in Division 2 of Part XI.
The question of admission of further evidence in the Court was dealt with by the High Court in CDJ v VAJ (1998) 197 CLR 172. The majority (McHugh, Gummow and Callinan JJ) said relevantly at paragraphs 107, 109 and 111:
107.The discretion conferred by s 93A(2) to receive further evidence on appeal is not expressed to be limited in any way. In particular, the subsection contains no requirement, comparable with that often found in statutes conferring power on an appellate court to receive further evidence, that “special grounds” or “special leave” be shown before the evidence can be adduced. Nor, in contrast to the common law position, must the motion to receive the evidence be designed to set aside the verdict at first instance. Nothing in s 93A(2), for example, prevents the respondent to the appeal from bringing a motion to adduce further evidence to support the orders made.
…
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
…
111.… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
(emphasis added, footnote omitted)
The first application by the wife to adduce further evidence was filed on
2 October 2011. The application was supported by an affidavit also filed on that date. This application preceded the hearing of the appeal. The husband filed an affidavit in response to this application on 14 October 2011.
The second application to adduce further evidence was filed after the appeal was heard but before judgment was delivered. The application was filed on 14 November 2011, along with an affidavit sworn 10 November 2011.
In response to this fresh application, the Full Court made directions in chambers that were forwarded by the Appeals Registrar to the parties. The directions provided as follows:
1.Upon receipt by the appellant of the Auscript transcript referred to in paragraph 15 of her affidavit sworn 10 November 2011, the appellant shall promptly provide a copy to the Eastern Appeal Registry and a further copy to the solicitors for the respondent.
2.Within 14 days of receipt of the transcript, the respondent shall file and serve a Response to the application together with any affidavit on which he intends to rely.
3.Within 14 days of receipt of the respondent’s response, the appellant shall file and serve written submissions in support of the application.
4.Within 14 days of receipt of the appellant’s submissions, the respondent shall file and serve written submissions in response.
5.Within 14 days of receipt of the respondent’s submissions, the appellant shall file and serve any written submissions she wishes to make in reply.
Due to the intervention of the Christmas period, an extension of time was provided and the following documents were ultimately filed:
a)In accordance with direction 1, on 18 November 2011 the wife provided the regional appeals registry with a copy of the Auscript transcript referred to in paragraph 15 of her affidavit sworn 10 November 2011 and filed 14 November 2011. The transcript was of the proceedings before Loughnan J on 4 November 2011.
b)In accordance with direction 2, on 2 December 2011 the husband filed a response seeking that the application filed 14 November 2011 be dismissed. The response was supported by two affidavits, one by the husband, sworn 29 November 2011, and the other by the husband’s solicitor, Moira Cynthia Ryan, sworn 1 December 2011.
c)On 16 December 2011, the wife filed written submissions in accordance with direction 3.
d)On 24 January 2012, the husband filed submissions in accordance with direction 4.
e)On 7 February 2012, the wife filed submissions in response in accordance with direction 5.
f)On 7 February 2012 the husband sent a letter of objection in response to the wife’s submissions in reply.
g)On 16 February 2012 the wife filed a further application to adduce fresh evidence. As leave was not granted to file this application, we do not intend to consider it. In any event, having perused the affidavit, it seems to us that there are matters which have already been encompassed in previous affidavits and submissions. They do not fall within any category which might properly be the subject of further evidence.
Application to adduce further evidence filed 2 October 2011
As with previous affidavits of the wife, much of the affidavit accompanying this application is taken up with assertions that are irrelevant to the point in issue. The various annexures similarly do not assist the wife in this respect. Accordingly we propose to dismiss the application of 2 October 2011 to adduce further evidence.
In doing so however, we note that in the affidavit of the husband filed on
14 October 2011 in response to the wife’s application, the husband deposes relevantly to the matter in issue. In particular he says the following at paragraphs 3 to 13:
3.I became a permanent resident of Australia in 1975.
4.I have lived in Australia since that time. I am registered to vote in Australian elections.
5.I have travelled between Australia and Sri Lanka frequently since at least 2008 and the current date.
6.I am in receipt of an Australian aged pension which is paid into my savings account with [a bank].
7.I hold an Australian Medicare Card.
8.I have a son and a daughter from a previous marriage who are Australian citizens.
9.My daughter [S] lives in Victoria.
10.My son [R Peters] lives in Hong Kong and works in Asia and Australia.
11.When I am in Australia I mostly live in Queensland in a unit on [an island] which is a property owned by the [PS] Superannuation Fund. I also sometimes stay with relatives from time to time.
12.The [PS] Superannuation Fund is a self managed superannuation fund of which I am the sole member. The corporate Trustee is [F] Pty Ltd and I am the sole Director.
13.Whenever I have stayed in Sri Lanka, I have been on a tourist visa. My intention is always to return to Australia. Being on a tourist visa, I cannot earn a salary in Sri Lanka or hold shares in Sri Lankan companies. I am prohibited from working in Sri Lanka or receiving a salary under the terms of my visa.
Paragraph 20 also relevantly says:
In or about December 2007 the appellant left Australia without my knowledge and consent with our only son from this marriage … who was then 11 years of age. On 18 December 2007 I obtained ex parte Orders from the Federal Magistrates Court in Townsville which included a warrant that required the Appellant to return the child to Australia. At the time I sought those Orders I was not aware that Mrs [Peters] was living in Sri Lanka. I only learned this in March 2008 shortly after I contacted the Attorney General’s Department and they assisted me in a Hague Convention Application in Sri Lanka which ultimately failed due to reasons which I do not comprehend because the appellant is Australian by birth and we always lived in Australia during our marriage, and [our son] had been raised in Australia for the entirety of his life. The Appellant did not comply with the warrant and has become a permanent resident of Sri Lanka.
(errors in original)
In paragraph 23 of the affidavit the husband describes himself as a “non permanent resident of Sri Lanka”.
Application to adduce further evidence filed 14 November 2011
In her application dated 14 November 2011 the wife again seeks the permission of the Court to adduce further evidence in support of her appeal. She filed an affidavit on the same date asserting that in the interlocutory property proceedings before the Court on 4 November 2011 (after the hearing of this appeal) that the husband’s lawyer stated as follows:
My client was in Australia on 10 September 2009, June 2010, July 2010 for 2 – 4 weeks maximum at any one time; 9 May 2011 – 31 July 2011 my client would have been here. October 2011 my client would have arrived and possibly stayed again for a relatively short time.
The wife contends that this demonstrates that the place where the husband lives is not Australia, but elsewhere, in Sri Lanka. The transcript of the proceedings was subsequently made available to the Full Court pursuant to direction 1 as set out in paragraph 58 above.
The husband filed a response to the wife’s application seeking that it be dismissed. He also filed an affidavit by his solicitor, Ms Ryan, sworn on
1 December 2011 and an affidavit sworn by him on 29 November 2011. Much of that affidavit deals with other matters before the court but Ms Ryan concedes that she advised the Court that the husband was living on a Queensland island on the basis of instructions her office had received at that time.
Ms Ryan goes on to say that subsequently she obtained instructions and informed the Court that “[y]ou will see in the husband’s affidavit he says he doesn’t go there if it’s rented” (at paragraph 10). Ms Ryan contends at paragraph 11(e) of her affidavit that:
[t]he context of the Application before His Honour [sic] on 4 November 2011 concerned competing interlocutory applications about the sale of two properties. The wife sought an injunction to prevent the sale. The wife submitted that the rental receipts for [the island property] should have covered expenses. The husband asserted the rental receipts did not cover the expenses. The husband asked the Court to order the sale. His Honour asked questions of me about the times that the husband may have stayed at [the island] in the context that if the husband was staying there, it would not be rented and therefore went to the question of revenue vs expenses. At the Hearing held on 4 November 2011, the husband’s ‘permanent residence’ status was not in issue. The husband gave evidence at paragraph 5 of his Affidavit filed 26 October 2011, of where he mostly lived when in Australia, which included staying in Victoria and with friends who also lived [on the island], as well as the property owned by the fund. That evidence was not challenged by the wife. His Honour ultimately found in favour of the orders sought by the husband.
The husband in his affidavit sworn 29 November 2011 says, inter alia, he was unable to attend the Sydney hearing on 4 November 2011 “having returned to Australia, in Brisbane, on 3 November 2011” (at paragraph 2). The husband again asserts in paragraph 4(a) of his affidavit that “I am a permanent resident of Australia, I receive Centrelink benefits and [the wife] had particulars sufficient to effect service upon me of any Assessment that was made. I have never ceased to be a resident of Australia”.
In paragraph 4(b), he continues:
As to paragraph 5, at the time that my solicitor gave evidence in an Affidavit filed in Court on 16 July 2009, sworn 14 July 2009, I had instructed my solicitor that I was living [on the island], which I was at the time. As I have previously deposed, I have not changed my residential status. When I visit Sri Lanka I am on a Tourist Visa. I do not wish to change my residential status in Australia.
Wife’s submissions filed 16 December 2011
Most of the submissions simply regurgitate the submissions that were made on the appeal and do not deal with the question of the admission of fresh evidence. The wife contends that having regard to the transcript and the comments by the husband’s solicitor about when he was in Australia, “it is clear that the husband does not ordinarily reside in Australia (i.e. in the ordinary meaning of that term) and that the carer and liable parent have both ceased to be residents of Australia”.
Husband’s submissions filed 24 January 2012
The husband opposes the application for admission of further evidence. He submits that the evidence is without substance and is simply an attempt to reopen the submissions made by the wife in the Full Court. The husband asserts that there is no evidence of an affidavit filed 14 October 2009 (as suggested by the wife), that the affidavit filed by him on 16 July 2010 was not read in the course of the child support matter, and that the wife has not proven her assertion as stated in her affidavit sworn 10 November 2011 and filed 14 November 2011 that the husband “does not live and never lived at [the island] or in Australia”.
In relation to the 4 November 2011 hearing, the husband submits that the information provided by his solicitor as to the dates that he was in Australia, as appearing on the transcript of 4 November 2011, were advice to the Court in response to Loughnan J’s question about the husband’s use of the island property.
Paragraph 16 of his submission says:
We submit, the transcript shows the Respondent’s lawyer, made submissions as to her knowledge as to when the Respondent was in Australia and explained how she had assembled that knowledge during the lunch break. Arising from the information that she had gathered, she estimated when the Respondent may or may or may not [sic] have had the opportunity to use the [island] property during those occasions. The basis on which those submissions were made, that is, the estimated times based on office records, was expressly stated to His Honour [sic] before the estimated dates were submitted. It is our submission that the legal representative did not in that circumstance, provide to the Court information that could be construed to support the Appellant’s Application in an Appeal. (original emphasis)
In paragraph 17, the husband submits that “[t]he submissions neither prove nor disprove the Respondent’s residential status and indeed that was not the question before His Honour [sic]”.
Importantly, in our view, the husband then sets out in some detail under the sub-heading “The Respondent’s status as an Australian Resident and its relevance” a number of submissions which go directly to the question of residency for the purposes of the Assessment Act, with reference to the Income Tax Assessment Act 1936 (Cth) and relevant rulings by the Australian Taxation Office. This is the first occasion, in our view, in which the matter of residence and its meaning under the Assessment Act has been adequately raised by either party.
Wife’s submissions in reply filed 7 February 2012
The submissions of the wife again canvass earlier material and do not take the matter any further. However she does for the first time refer to dismissal of the application on a summary basis.
Discussion
The difficulty with the various applications in this matter highlights the problematic nature of dealing with an appeal when there is ongoing litigation between the parties that involves assertions which may support or contradict matters already the subject of affidavit evidence in other proceedings. In fact, although the transcript of the proceedings before Loughnan J of 4 November 2011 occurred after the appeal hearing, submissions to his Honour on disputed facts pre-date the appeal and Ainslie-Wallace J’s judgment. In truth, there was a plethora of information which could have been before her Honour but wasn’t, and which has emerged in the further material referred to by the wife and in the husband’s responses to it. In our view, the further evidence on its own does not assist the wife and in any event, we have already determined that her Honour erred in dismissing the application summarily.
That is not the end of the matter, however. As the High Court in CDJ v VAJ (supra) has emphasised, s 93A is remedial and can be used to buttress the findings already made. The submissions and material filed by the husband could be said to now provide a much clearer picture of the issues and the evidence in support of his assertion that he is an Australian resident. From the submissions a cogent argument arises, but not all the material that he has put in his submissions is covered in his affidavit material.
But more importantly, the reception of that evidence by us now, if we were to allow it and confirm her Honour’s judgment, simply replicates the procedural unfairness to the wife who is entitled to a proper opportunity to address the matters now squarely raised, challenge the husband as to his evidence and assertions, and allow the court to make findings. This can only be done by allowing the evidence to be tested.
Fortunately that should now be an easier task as the material filed since the appeal, particularly the submissions, is directed to the relevant parts of the Assessment Act and the meaning of “resident of Australia”. On its face the material appears to be more persuasive of the proposition that the husband is a resident of Australia. However, in our view, the wife is entitled to properly challenge this evidence.
We think therefore that the better course is that we dismiss the application for further evidence, and that the material contained in the various affidavits should be properly placed before the court ultimately hearing the matter.
Costs
The wife sought a certificate under the provisions of the Federal Proceedings (Costs) Act 1981 (Cth). Before any consideration of the granting of costs certificates arises, it is necessary to consider any application of the parties for costs. Only if the Court is not persuaded to award costs can it consider granting costs certificates with respect to the appeal, and if appropriate, for any rehearing.
Section 117(1) of the Act governs costs, subject, inter alia, to subsection (2), namely the existence of circumstances that justify the Court in departing from the position that each party pay their own costs. This statutory mandate applies equally to appeals before the Full Court as it applies to first instance decisions.
The discretion conferred by s 117 is a broad one and the factors to which the Court is to have regard in s 117(2A) should not be read in a restrictive way: Collins & Collins (1985) FLC 91-603). Any one of the factors referred to in s 117(2A) may be the sole foundation for an order for costs (Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 at [41]) but nevertheless, as an earlier Full Court said in I & I (No 2) (1995) FLC 92-625 at 82,277, the relevant matters in
s 117(2A) “must all be taken into account and all balanced in order to determine whether the overall circumstances justify the making of an order for costs”.Although the appeal has succeeded, this is not a matter in which we would make an order for costs against the husband. The manner in which the case has been presented by the wife has been unsatisfactory and it is only in our view as a result of the applications to adduce further evidence and the further submissions that the issues have in any way been properly addressed. However we do propose to grant certificates for the appeal under the Federal Proceedings (Costs) Act 1981 (Cth). Whether the wife has any reasonable costs will be a matter for her to subsequently establish. However, the husband has obviously incurred legal costs and ought to have some reimbursement.
I certify that the preceding eighty-four (84) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Faulks DCJ & Thackray J) delivered on 20 July 2012.
Associate:
Date: 20 July 2012
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