Peters and Peters and Ors - [2012] FamCAFC 105

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
Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007(Cth)
Family Law Act 1975 (Cth) Pt VII ss 66E, 117
Federal Proceedings (Costs) Act 1981(Cth) ss 6, 9
Income Tax Assessment Act 1936 (Cth)

Child Support (Assessment) Regulations 1989 (Cth) reg 3
Child Support (Registration and Collection) Regulations 1988 (Cth) Schedule 2
Family Law Rules 2004 (Cth) r 18.10

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

1^ST RESPONDENT:

Mr M PETERS

2^ND RESPONDENT:

Mr R PETERS

3^RD RESPONDENT:

F Pty Ltd

FILE NUMBER:

TVC

1541

2007

APPEAL NUMBER:

105

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 1^ST RESPONDENT:

Moira Ryan Lawyers

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Ladopoulos

SOLICITOR FOR THE 2^ND RESPONDENT:

Not represented

SOLICITOR FOR THE 3^RD RESPONDENT:

Not represented

Orders

That the appeal be allowed.
That the wife’s application in a case filed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] FamCAFC 105
Decision Date: 20 July 2012

CaseChat Overview and Summary

Peters and Peters and Ors concerned an appeal from a decision of the Family Court of Australia, which dismissed a wife's application for lump sum child maintenance. The wife appealed the decision to the Full Court of the Family Court of Australia. The appeal raised questions about procedural fairness, the admissibility of further evidence, and the interpretation of the Child Support (Assessment) Act 1989 (Cth).

The legal issues before the court included whether the wife had been denied procedural fairness when her application was dismissed summarily without adequate notice, whether further evidence should be admitted to assist in the reconsideration of the application, and whether the parents were eligible to apply for child support under the Australian child support scheme given their residency status in a reciprocating jurisdiction.

The Full Court found that the wife had indeed been denied procedural fairness as the judge did not inform her that the application was being summarily dismissed. However, the court also concluded that the further evidence proposed by the wife would not have assisted her case and would have compounded the procedural unfairness. Consequently, the appeal was allowed, and the case was remitted for hearing in the Sydney Registry of the Family Court of Australia. The wife's applications to adduce further evidence were dismissed, and leave to file a further application was refused. Both parties were granted costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth).

The court's final orders included allowing the appeal, remitting the wife's application for lump sum child maintenance for hearing in the Sydney Registry of the Family Court of Australia, dismissing the wife's applications to adduce further evidence, refusing leave to file a further application for further evidence, and granting costs certificates to both parties.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.