Redmond and Redmond & Anor
[2016] FamCAFC 17
•19 February 2016
FAMILY COURT OF AUSTRALIA
| REDMOND & REDMOND AND ANOR | [2016] FamCAFC 17 |
|
| Bankruptcy Act 1966 (Cth) ss 60(2), (3) Family Law Act 1975 (Cth) s 117 |
| Child Support Registrar & Crabbe and Anor (2014) FLC 98-062 |
| APPELLANT: | Mr Redmond |
| FIRST RESPONDENT: | Ms Redmond |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | BRC | 4493 | of | 2011 |
| APPEAL NUMBER: | NA | 34 | of | 2013 |
| DATE DELIVERED: | 19 February 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Bryant CJ, May & Kent JJ |
| HEARING DATE: | 15 April 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 28 June 2013 |
| LOWER COURT MNC: | [2013] FCCA 638 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Redmond in person |
| FOR THE FIRST RESPONDENT: | Ms Redmond in person |
| COUNSEL FOR THE SECOND RESPONDENT: | Dr Brasch QC |
| SOLICITOR FOR THE SECOND RESPONDENT | Australian Government Solicitor |
Orders
Leave to appeal the order of Judge Coates made 28 June 2013 is refused.
The appellant father pay the first respondent mother, her costs of and incidental to this appeal, such costs to be assessed.
The appellant father pay the second respondent Child Support Registrar’s costs of and incidental to this appeal, such costs to be assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond & Ors 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 BRISBANE |
Appeal Number: NA 34 of 2013
File Number: BRC 4493 of 2011
| Mr Redmond |
Appellant
And
| Ms Redmond |
First Respondent
And
Child Support Registrar
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This is an application for leave to appeal, and if granted, an appeal by Mr Redmond (“the father”) against an order made by Judge Coates on 28 June 2013. The judge upheld the decision made by the Social Security Appeals Tribunal (“the SSAT” or “the Tribunal”) delivered on 11 January 2012. The decision of the SSAT increased the father’s liability to pay child support to Ms Redmond (“the mother”) for their child, born in 2006 (“the child”).
The appeal is opposed by the mother and the Child Support Registrar.
The father and mother each appeared in person, and the Child Support Registrar appeared with counsel.
Leave to appeal to this Court from the Federal Circuit Court of Australia (“FCCA”) exercising original jurisdiction under the Child Support (Registration and Collection) Act 1988 (“the Registration and Collection Act”) is required by s 107A(1) of that Act.
We propose to refuse leave in relation to the appeal because there is no substance to the appeal and it was not demonstrated that substantive rights have been significantly affected by any error of principle made by the primary judge.
As will become apparent, the father sought to argue in this appeal issues which were not part of the proceedings before the SSAT and complained that the SSAT may have relied on documents not available to him. None of these contentions are correct.
Statutory provisions concerning appeals from the SSAT
The procedures for internal objections to certain decisions of the Child Support Registrar, are found in Part VII (ss 79D to 87AA) of the Registration and Collection Act.
A thorough discussion of these procedures and the nature of appeals to the Family Court of Australia can be found in Child Support Registrar & Crabbe and Anor (2014) FLC 98-062 at [49] to [54] and does not require repetition here. Suffice to say, we adopt the statement of law set out in that judgment.
The course of the present proceedings
The father and mother have one child, now aged 10, who lives with the mother.
The genesis for this appeal is two appeals by the husband to the SSAT. There were several departure applications.
Background to the first appeal to the SSAT – BC45344 (“the first SSAT Appeal”)
The current disputes in relation to child support commenced on 20 April 2011, when the mother applied to the Child Support Agency for a departure from an administrative assessment. The basis for the departure application is to be found in s 117 of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). The mother based her application on the cost of educating the child in the manner expected by the parents and on the income, property, financial resources and earning capacity of the parents which she asserted, in the special circumstances of the case, required a departure from the administrative assessment.
On 29 April 2011, the father applied for a departure from the assessment based on the income, property, financial resources and earning capacity of the parents. On 18 May 2011 he also cross-applied against the mother’s departure application. The following reasons were listed as the basis for the cross application by the father:
Reason 1: The costs of maintaining the child are significantly affected because of high costs in enabling a parent to spend time with, or communicate with the child.
Reason 4:The child support assessment is unfair because of the child’s income, earning capacity, property and financial resources.
Reason 7:The parent’s necessary expenses for self support significantly reduce their capacity to support the child.
Reason 8:The child support assessment is unfair because of a parent’s income, property and financial resources or earning capacity.
On 13 June 2011 a Senior Case Officer made a decision for departure in favour of the mother and the annual rate of child support payable by the father was increased. The Senior Case Officer made the departure determination under s 98S of the Assessment Act following a consideration of:
a)the application of the mother;
b)the application of the father; and
c)the cross-application of the father.
It is clear from the decision of the Senior Case Officer that the father was afforded the opportunity to produce relevant documentation, make submissions and in particular, provide evidence that his income was reduced. Relevantly, in relation to the child’s private school fees, the father contended that no adjustment was required as he advised the mother in August 2010 “…that he wished to discontinue [the child’s] education at [X School].”
The Senior Case Officer did not accept the reasons given by the father and found it would be just and equitable to require the father to contribute to the high costs of the child’s education. The Senior Case Officer commented:
I consider this decision fair in all the circumstances since I believe [the father] has a demonstrated capacity to contribute to the private school fees. Until such time as the parents agree to change [the child’s] schooling, or a court order is made, I consider that they should both contribute to costs.
The father objected to this decision on 12 August 2011 and on 15 August 2011 the objection was disallowed. On 16 August 2011 the father appealed to the SSAT against the disallowance.
Background to the second appeal to the SSAT – BC45924 (“the second SSAT Appeal”)
The second process began on 15 July 2011, when the father applied to the Child Support Agency for a further departure order. The father applied on the basis of reason eight (set out in [12]). In refusing the application, the Senior Case Officer noted:
For there to be a change to the assessment currently in place, through this process, [the father] must show that the circumstances as considered by [the Senior Case Officer] have changed significantly since that decision was made or that there is evidence of material facts not taken, or being taken, into account.
…
In support of this reason, [the father] states:
·[The mother] has claimed higher assets that have not been taken into account.
·The recent assessment did not take account of domestic violence.
·The assessment is not just and equitable and does not take into account local economic activity.
·The current assessment is based on incorrect statements by [the father].
·The current assessment did not take account of special circumstances.
·[The mother] has a history of regular financial assistance from her parents.
·He is currently in economic hardship.
·He cannot see [the child] because he cannot afford to see her and does not believe this is in the best interest [sic] of the community.
…
Once a particular matter is being considered through a COA process, a subsequent COA application cannot be considered on the basis of the same information and evidence. A subsequent application can only be successful if it shows that the circumstances existing at the time of the original decision have changed significantly or if fresh information, not previously available, would result in a different outcome. In other words, a subsequent COA application cannot review an earlier decision. It may only reconsider a matter in light of changed circumstances or previously unavailable information.
…
A person may object to a decision if they believe a decision is wrong and can provide grounds for why they believe that to be the case. The statements made by [the father] in support of his current application under this reason are, I consider, his reasons for why he believes the decision by [the Senior Case Officer] to be wrong. They are his grounds for an objection to that decision and are being considered as part of his current objection.
The statements do not constitute new information or evidence of changed circumstances that would allow a reconsideration of the matter through COA…I do not consider that the information provided in [the father’s] current application is materially different from that considered by [the Senior Case Officer].
On 12 August 2011 the Senior Case Officer refused the application. The father objected to this decision and applied for a further departure, on the ground that he believed the mother had not fully disclosed her financial resources. On 24 October the objection was disallowed.
On 16 November 2011 the father appealed to the SSAT.
The two appeals by the father to the SSAT
As identified above, the father appealed two decisions to the SSAT:
a)the appeal filed 16 August 2011, being the decision to disallow an objection to a decision made by a Senior Case Officer for the period 7 May 2011 to 31 December 2012, increasing the appellant’s annual rate of child support by $3,544 (“the first SSAT Appeal”); and
b)the appeal filed 16 November 2011, being a decision made by an objections officer on 24 October 2011 disallowing an objection to a decision made which refused to change the administrative assessment of child support (“the second SSAT Appeal”).
The SSAT gave notice to the parties shortly before its review that it would hear the first SSAT Appeal and the second SSAT Appeal together.
On 4 January 2012, the SSAT set aside the decisions under review and substituted a new decision:
·For the period 4 April 2011 to 24 April 2011 the annual rate of child support payable by [the father] be set at $7,144;
·For the period 25 April 2011 to 20 June 2011 the annual rate of child support payable by [the father] be set at $6,544;
·For the period 21 June 2011 to 8 July 2011 the annual rate of child support payable by [the father] be set at $9,744;
·For the period 9 July 2011 to 31 December 2011 the annual rate of child support payable by [the father] be set at $7,144;
·For the period 1 January 2012 to 31 December 2012 [the father’s] adjusted taxable income be set at $60,000, [the mother’s] adjusted taxable income be set at $50,000, and the annual rate of child support otherwise payable by [the father] be increased by $3,722.
An appeal was filed by the father from this decision pursuant to s 110B of the Registration and Collection Act. The matter was heard by Judge Coates on 12 December 2012 and on 28 June 2013 his Honour dismissed the father’s appeal.
On 10 July 2013 the father filed the application for leave and a Notice of Appeal from the decision of Judge Coates.
The parties to this appeal
Section 110D of the Registration and Collection Act provides that the parties to a review by the SSAT are also parties to an appeal from the decision of the SSAT under s 110B.
The mother is the first respondent in this appeal and the Child Support Registrar is the second respondent. Both oppose the appeal brought by the father. The mother asked us to dismiss the appeal on the basis that it is both frivolous and vexatious.
The father, on 5 February 2014, was made bankrupt pursuant to a sequestration order.
On 12 February 2014, the mother gave notice to the official trustee, pursuant to s 60(3) of the Bankruptcy Act 1966 (Cth) (“Bankruptcy Act”), requiring the trustee to make the election contemplated by that section in respect of the father’s appeal. On 12 March 2014 the trustee gave notice to the father that it intended to discontinue his appeal and a formal Notice of Discontinuance was filed 11 April 2014.
On 24 March 2014 the father filed an application in an appeal to allow him to continue his appeal from the orders of Judge Coates. On 11 April 2014, that application was heard by the Full Court (comprising May, Ainsley-Wallace and Murphy JJ) in Redmond & Redmond and Ors [2014] FamCAFC 87.
On the morning of the hearing of the appeal, the father also made an oral application for an adjournment of his application filed 24 March 2014. The Full Court ordered that the husband’s oral application for an adjournment be dismissed, and also ordered that his application in an appeal filed 24 March 2014 be dismissed.
Thus, as at 11 April 2014 upon the filing by the father's Trustee in Bankruptcy of the Notice of Discontinuance, this appeal was purportedly discontinued.
At the time of the father's bankruptcy he was a party to an extraordinary number of then current legal proceedings he had instituted in several courts including, inter alia, two applications for special leave to appeal to the High Court of Australia; several appeals to the Full Court of this Court (including this appeal); a proceeding in the trial division of this Court; several appeals to the FCCA; and several proceedings in the District Court of Queensland.
In proceedings in the FCCA the father challenged the Trustee's elections to discontinue various of these proceedings. That challenge succeeded to a limited extent in that on 26 November 2014 Judge Jarrett of the FCCA delivered reasons determining, inter alia, that proceedings by the father with respect to child support debts were actions personal to the father as a bankrupt which did not vest in the bankrupt's Trustee upon bankruptcy; were not stayed by the operation of s 60(2) of the Bankruptcy Act; and the Trustee in Bankruptcy had no entitlement to make an election to discontinue them (see Redmond v Official Trustee in Bankruptcy [2014] FCCA 2819).
Following that determination, on 16 February 2015 the parties to this appeal sought and obtained consent orders made by the Full Court that, inter alia, the Notice of Discontinuance of this appeal filed by the Trustee be set aside; and that this appeal be reinstated.
The SSAT decision made on 4 January 2012
It is necessary to first consider the decision of the SSAT, the subject of the appeal to Judge Coates from whose decision the present appeal is brought.
The original assessment for child support provided for the payment of $1,226 annually by the father for the period 4 April 2011 to 24 April 2011, $0 for the period 25 April 2011 to 20 June 2011; and $1,226 annually for the period 21 June 2011 to 31 July 2012.
The decision of the Senior Case Officer on 13 June 2011 was that, for the period 7 May 2011 to 31 December 2012, the annual rate of child support payable by the father should be increased by $3,554.
Further, the decision of the Senior Case Officer on 12 August 2011 refused an application for a further departure order filed by the father.
In its reasons, the SSAT correctly set out the legislative framework found in the Assessment Act in calculating child support and the grounds for departing from that framework. Relevantly:
18.The rate of child support payable by a liable parent is usually based on an administrative assessment under Part 5 of the Act…
19.Part 6A of the [Child Support Assessment] Act allows for a departure from an administrative assessment…Under subsection 98C(1), the Registrar may make such a departure determination if three matters are established:
· one, or more than one, of the grounds for departure referred to in subsection 98C(2) exists [subparagraph 98C(1)(b)(i);
· a departure is just and equitable as regards the children and each parent [subparagraph 98C(1)(b)(ii)(A)]; and
· it is otherwise proper to make a departure decision [subparagraph 98C)1)(b)(ii)(B)].
20.Subsection 98C(2) provides that the grounds for departure are the same as the grounds set out in subsection 117(2).
21.If satisfied that a ground or grounds exist and that it would be just and equitable and otherwise proper to make a particular determination, the Tribunal must make one of the determinations prescribed in section 98S of the [Child Support Assessment] Act. Section 98S sets out the determinations that may be made under the departure provisions. It permits a range of determinations, including varying the rate of child support payable, the adjusted taxable income or the cost percentage for a child.
It is important to note the material before the SSAT, as listed in the Reasons for Decision [16]:
The Tribunal has carefully considered the oral evidence given by [the father] and [the mother] at the hearing as well as the following material:
·The subsection 95(3) Statement and Documents prepared by the CSA in relation to [the first SSAT Appeal] (Exhibit 1);
·The subsection 95(3) Statement and Documents prepared by the CSA in relation to [the second SSAT Appeal] (Exhibit 2);
·Further material provided by [the father], marked A1 – A220 (Exhibit A);
·Further material provided by [the mother], marked B1 – B66 (Exhibit B);
·Further material provided by [the father] on 18 December 2011 at the direction of the Tribunal; and
·Further material provided by [the mother] on 23 December 2011 in response to [the father’s] further material.
Section 95(3) of the Registration and Collection Act provides that within 28 days of receiving notice from the SSAT, the Senior Case Officer must send to the SSAT, and provide copies to each of the parties, the following:
(a) a statement about the decision under review that:
(i) sets out the findings of fact made by the Registrar; and
(ii) refers to the evidence on which those findings were based; and
(iii) gives the reasons for the decision; and
(b) a copy of every document or part of a document that:
(i) is in the possession, or under the control, of the Registrar; and
(ii) is relevant to the review of the decision.
There is no doubt that Exhibits 1 and 2 contained information and evidence of which both the mother and father were already aware, being documents supplied by them at various times. The documents contained within Exhibit 2 form an important part of the father’s argument in this appeal and will be discussed in greater detail under Grounds 1 and 2.
Costs of educating the child
The SSAT provided a comprehensive analysis of the grounds for departure.
The first ground considered by the Tribunal was the “costs of educating the child”. Referring to s 117(2)(b)(ii) of the Assessment Act, the Tribunal emphasised that “…the facts of the case must establish something which is special or out of the ordinary…”. The Tribunal referred to Gyselman v Gyselman (1992) 107 FLC 92-289.
The Tribunal analysed the evidence put forward by the parties. It considered a document - an Application for Enrolment for the child for X School, signed by both parents on 10 February 2009. It also considered an Enrolment Agreement Contract signed by both parents on 7 April 2009. The Tribunal made the following findings relevant to the issue of education in a manner expected by the parents:
25.[The father] told the tribunal that he does not recall signing those documents. However he does recall receiving and paying the fees for that school. He stated that originally [the child] was attending [Y School] but she was pulled out as he and [the mother] could not afford to send her there after separation. [The child] then attended [X School] where [the mother] told [the father] her father would pay the fees if they could not.
26. [The mother] agreed [the child] had originally attended [Y School] but she denied telling [the father that] her father would pay the fees if they could not.
27.It is clear both parents intended [the child] to be privately educated. This is evidenced by the documents signed in relation to [X School] and the fact [that the child] attended [Y School] prior to separation. [The father] also agreed he had been paying [the child’s] school fees at [X School] for a time. The tribunal is satisfied that [the child] is being educated in a manner expected by her parents.
The Tribunal assessed that the full cost of the school fees should include the costs of textbook hire, stationery and voluntary optional excursions and therefore the total cost for 2012 would be $7,444.
The father alleged the mother was not paying the fees herself, but was instead using an amount allocated from the estate of the maternal grandmother. However, the Tribunal was satisfied that the mother had been paying the school fees by direct debit:
30.Even if the $5,000 provided for [the child] can be considered a financial resource of [the mother] or [the child], the Tribunal is satisfied that it was not specifically intended to meet [the child's] school fees and has not in fact been used specifically in that way. [The mother] has been paying the school fees by direct debit. Given the amount of the fees, the Tribunal is satisfied they significantly affect the cost of maintaining [the child] and there are special circumstances in that most children do not undertake private education.
Just and equitable
The second ground considered by the Tribunal was whether a departure would be just and equitable by reference to what is fair to the parents, their children and the community. The Tribunal discussed the factors found in s 117(4) to (9), and also the duties of parents and the objects of the Assessment Act, found in ss 3, 4 and 114.
In finding that there was merit to depart from the administrative assessment, the Tribunal went on to consider the matters set out under s 117, more specifically those matters found in s 117(4), (6) – (8). One of these relevant matters is the income of each parent.
The father at that time was a self-employed solicitor. He operated his business from home and confirmed to the SSAT that deposits into his business account represent payments made by his clients. The father submitted that he had some overdue credit card debt which he had been unable to pay because his business was declining, however no evidence was provided to support this contention.
It was noted by the Tribunal that the father filed a non-lodgement advice with the Australian Taxation Office for the 2010/2011 financial year, which recorded the company received $0 income, expenses and profit. However, the Tribunal found:
41.The Tribunal put to [the father] that this is clearly incorrect as the company's bank statements show regular deposits being received from clients. [The father] agreed the company had received income from clients during that year but explained that what he was trying to show in the tax return was that it had not made a profit. [The father] advised that he did not take a wage from the business and any private expenditure from company funds was accounted for as a loan from the business to him rather than wages or drawings. Thus if the company was liquidated he could be required to repay the loan. Unfortunately [the father] has not provided the Tribunal with any financial statements for the company which might verify his evidence in this regard. As noted, the company's tax return also provides no detail to verify this. [The father] stated that his income from the company was $500 per week ($26,000 per annum).
In examining the father’s business and personal expenses, the Tribunal made the following findings:
42.It is clear that [the father] is receiving a significant financial resource from the company in that company funds are being used to pay for his personal expenses both directly (by paying off the credit cards debts) and indirectly by claiming the expenses of running a business from home e.g. a proportion of rent and utilities. Whilst [the father] claims this resource is accounted for as a loan from the business which he could be asked to repay, he has provided no evidence that this is the case. Even if that is how he is accounting for the resource on paper, the reality is that [the father] is the sole income earner for his company and that income is being used to meet his personal expenses. Thus the income being received by the company, less any reasonable and necessary business expenses, should be considered a financial resource of [the father] for child support purpose, which he can use to support [the child].
43.The Tribunal examined some of the credit card expenses with [the father]. He explained that the supermarket and food outlet expenses, such as McDonalds, are business related as he needs to entertain clients and he also needs to eat whilst he is on the road for work purposes. He also has to stock his office with tea and coffee. The expense at '7/11 ' is for petrol. When asked by the Tribunal where his personal expenses are shown in the bank statements if expenses shown are business related, [the father] agreed that the expenses were both business and personal.
44.The Tribunal accepts that a proportion of the expenses shown on the credit card statements will be for business purposes. [The father] has to run a home office, deal with his clients and attend appointments elsewhere. However the Tribunal does not accept that a significant proportion of the expenses do not provide a personal benefit for [the father]. This must be so as this is how [the father] meets his personal expenses.
The Tribunal assessed the father’s household expenses and the company turnover, and relevantly found:
48.To have a net income of $50,000 per annum to meet his personal expenses, [the father] would need to receive a gross income of about $60,000 per annum. This equates to about half the turnover of the company. Given [the father] operates his business from home, the Tribunal finds that provides a more than reasonable accommodation of his business related expenses. The Tribunal finds that $60,000 is a fair reflection of the income [the father] is effectively receiving from the company by way of payment of his personal expenses.
The mother was employed part-time as a solicitor. Apart from a period where she worked longer hours, she earned $900 a week. The Tribunal found that her gross income for 2011/12 was approximately $52,000 with a taxable income of about $50,000.
The Tribunal went on to consider the assets and liabilities of the parents and found:
52.Neither party has assets or debts which could be considered special or out of the ordinary and the Tribunal is satisfied they should not affect the rate of child support determined to be payable by [the father].
The Tribunal found that the father’s annual personal expenses were about $50,000.
The mother submitted to the Tribunal that she incurs weekly expenses of $1,398.50. The mother told the Tribunal:
57.…that she had been funding the shortfall by use of credit cards as [the father] has not been paying any child support and she currently has a credit debt of about $13,500. $415 per week of the expense has been allocated to [the child] but that does not include any expenses for accommodation, utilities or motor vehicle.
There was some disagreement between the parties as to the expenses of the mother, however the Tribunal found that:
61.Even if [the mother's] expenses are taken to be somewhat inflated or unnecessary, it is clear that her expenses significantly exceed her income and she needs any support [the father] can reasonably provide to support [the child].
The Tribunal found that the child has no income and although $5,000 has been set aside from her maternal grandmother’s estate, this should not reduce the rate of child support payable by the father.
In determining the rates payable, the Tribunal found the following:
63.The Tribunal has determined that [the father] should be considered to have an income of $60,000 for child support purposes and [the mother] an income of $50,000. An administrative assessment based on the child support formulas and the above adjusted taxable incomes would provide for [the father] to pay child support at annual rates of about $3,600 ($70 per week) for the period 4 April 2011 to 24 April 2011; about $3,000 ($57 per week) for the period 25 April 2011 to 20 June 2011; about $6,200 ($120 per week) for the period 21 June 2011 to 8 July 2011; and about $3,600 ($70 per week) for the period from 9 July 2011.
64.If half the cost of [the child's] private schooling ($3,544 per annum) is added to those rates, they would be $7,144 per annum ($137 per week), $6,544 per annum ($126 per week), $9,744 per annum ($187 per week) and $7,144 per annum ($137 per week) respectively. [The child’s] needs as listed by her parents total $465 per week. As mentioned, this does not include an expense for accommodation, utilities or motor vehicle and the Tribunal considers it a very conservative estimate of the actual costs. The rates payable by [the father] represent between 27% and 40% of that cost. The Tribunal acknowledges that whilst he has had shared and regular care of [the child] [the father] has also been meeting some of those costs through caring for [the child]. On balance, the Tribunal is satisfied it is appropriate that he pay child support at those rates during the relevant periods.
The Tribunal noted that a deficiency in the evidence provided by the father meant it was “extremely difficult” to determine his capacity to pay child support:
65.However, given his ability to meet his significant personal expenses from his company income, the Tribunal is satisfied that he had the capacity to meet such assessments during the relevant periods. The Tribunal is also satisfied he has the capacity to meet such an assessment (including a small increase to account for the 2012 school fees) on an ongoing basis.
The Tribunal finally considered whether a change of assessment was otherwise proper, noting it would take into account s 117(5) of the Assessment Act. As to this consideration, the Tribunal found:
71.The child support law recognises that each parent has a primary duty to maintain their children. For the reasons outlined above, the Tribunal is satisfied it is appropriate to depart from the administrative assessment.
72.[The mother] is in receipt of family tax benefit for [the child]. This decision will increase the amount payable by [the father] from that payable under the administrative assessment and thus reduce the cost to the community of supporting [the child]. The Tribunal is therefore satisfied it is otherwise proper to depart from the administrative assessment.
The appeal against the SSAT decision and an overview of the primary judge’s decision
The father filed a Notice of Appeal against the decision of the SSAT on 23 March 2012, listing 18 grounds of appeal (we note that 17 are listed on the document, but the numbering was incorrect). Each of the grounds related to a number of issues, including alleged instances of procedural unfairness, bias and error.
The mother and the Registrar opposed the father’s appeal on the basis that it did not raise any questions of law as required by s 110B of the Registration and Collection Act. It was submitted that should questions of law be found to exist, they would not cause the court to overturn the decision of the Tribunal [65].
In dismissing the appeal, the primary judge found the father had failed to successfully raise any questions of law. At [54] of the reasons, the judge correctly set out the procedure for appeals brought to review a decision of the SSAT.
The primary judge carefully discussed each of the grounds and concluded that no question of law was raised on which an appeal could be brought.
The father also sought leave on the day of the hearing to amend his application and adduce further evidence. The father provided no satisfactory explanation as to why he was seeking to change his submissions so late in the proceedings and leave was refused. This will be discussed in further detail below.
Grounds of this appeal and an overview of the submissions
The grounds of appeal almost mirror those in the father’s original Notice of Appeal dated 23 March 2012, appealing the decision of the SSAT. In the grounds before this court the father has merely swapped references to the “SSAT” with the “judge”. The father’s written submissions, dated 24 October 2013, still incorrectly refer to the SSAT.
Counsel for the Child Support Registrar submits that as the father filed a Notice of Appeal and written summary of argument which largely repeats the previous grounds raised before the primary judge and which also failed to identify an error of law in the SSAT proceedings, he has failed to identify an appellable error (Child Support Registrar’s written submissions, 23 January 2014, [5]-[7]).
For that reason, Counsel for the Child Support Registrar did not address each of the 18 grounds of appeal and instead relies upon its submissions to the FCCA, with some additional considerations.
The mother similarly submits that the primary judge was correct to dismiss the appeal as there was a failure to identify any error of law in the Tribunal’s decision, and the actions of the father should be recognised as frivolous and vexatious (mother’s written submissions, 18 November 2013, [22]).
It is necessary to set out the grounds of appeal in full to appreciate the nature of arguments advanced by the appellant and the lack of particularity attending most of them:
1.The Judge erred in that he should have found that the members of the Social Security Appeal Tribunal (“SSAT”) at the SSAT hearing on 12/12/2011 erred in that they ought have disqualified themselves from the hearing because of the disqualifying bias;
2.The Judge erred in that he should have found the SSAT erred in that it did not afford the Applicant procedural fairness and natural justice. Similar to the circumstances in PJ v Child Support Registrar (SSAT Appeal) 2007 FMCAfam 829;
3.The Judge erred in that he should have found the SSAT committed jurisdictional error as defined in Tasman & Tisdall [2008] FMCAfam 126;
4.The Judge erred in that he should have found the SSAT erred in that it did not sufficiently determine the Applicant’s and Respondent’s “financial resources” available to the parties pursuant to section 98L(1)(a) and 117(4) of the Child Support (Assessment) Act 1989 (Cth) and the case of PJ V Child Support Registrar (SSAT) Appeal 2008 FMCAfam 829 and Tyagi & Meares (SSAT Appeal) [2008] FMCAfam 886;
5.The Judge erred in that he should have found the SSAT erred in that it did not sufficiently consider the Applicant’s “necessary commitments” pursuant to section 117(2)(a)(iii) of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156;
[6].The Judge erred in that he should have found that the SSAT erred in their assessment of “special circumstances” of the parties pursuant to section 117(2) and section 98C of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156;
[7]. The Judge erred in that he should have found the SSAT erred in finding that it was satisfied that it was “just and equitable” or would not cause “hardship” to depart from the administrative assessment for the purposes of ss.98C, 98K and 98L and 117(4) of the Child Support (Assessment) Act 1989 (Cth), having regarding to the income, property and financial resources of the Applicant;
[8].The Judge erred in that he should have found the SSAT erred in[…] finding that it was satisfied that it was “otherwise proper” to depart from the administrative assessment for the purposes of ss.98C and 117(5) of the Child Support (Assessment) Act 1989 (Cth);
[9].The Judge erred in that he should have found the SSAT erred in the conclusions reached in that they were not reasonably open to be made on the material;
[10].The Judge erred in that he should have found that the SSAT erred in not providing adequate reasons to explain their decision;
[11].The Judge erred in that he should have found the SSAT erred in failing to have regard to relevant material available and considerations in the making of the findings that they did;
[12].The Judge erred in that he should have found that the SSAT made significant errors in assessing the costs of the child on the material available;
[13].The Judge erred in that he should have found the SSAT in determination of the level of child support payable by the Applicant, erred in that they did not determine adequately, having regard to its own findings of the respondent’s own expenses, liabilities, financial resources and necessary commitments, or without regard to the level of hardship, what actual capacity the Applicant had to contribute out of his income for the support of the child under section 117(4) and section 98C of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156.
[14].The Judge erred in that he should have found the SSAT’s erred in its decision to set the Applicant’s adjusted taxable income at $60,000 for the period 1 January 2012 to 31 December 2012 and apply the child support assessment formula as the approach is inconsistent with its own determination for a departure from the child support assessment formula pursuant to “special circumstances” under section 117(2) and section 98C of the Child Support (Assessment) Act 1989 (Cth) and the case of In Marriage of Gyselman (1991) 103 FLR 156.
[15].The Judge erred in that he should have found the SSAT erred in its assessment of the level of personal benefits the Applicant received from their business, and the manner in which the Applicant met his personal expenses.
[16]. The Judge erred in that he should have found the SSAT erred in its decision in that it came to conflicting and inconsistent conclusions in its decision and its final decision was not open to be made on its own conclusions.
[17].The Judge erred in that he should have found the SSAT grossly underestimated the arrears owed to the CSA [sic] its decision would create for the Applicant, and consequently the SSAT own decision was based on flawed calculations and assumptions.
[18].The Judge erred in that he should have found the SSAT erred in that they did not consider the principals in Mee v Ferguson (1986) FLC 91-716, Lightfoot and Hampson (1996) FLC 92-663 and Wild v Ballard (1997) FLC 92-771 in relation to the “special circumstances” determined by the SSAT in relation to the child’s school fees.
The grounds were conveniently grouped by the Child Support Registrar in the hearing before the primary judge. Before us, the Child Support Registrar relied on those same groupings and they submitted the complaints were essentially the same. Those groupings were:
a)Grounds 1 and 2 allege the SSAT erred through a denial of procedural fairness;
b)Ground 3 asserts the SSAT committed jurisdictional error;
c)Grounds 4, 5, 6, 7, 8, 9, 12, 13, 15, 16, 17 and 18 call into question findings of fact;
d)Ground 10 asserts a failure by the SSAT to provide adequate reasons for their decision;
e)Ground 11 asserts the SSAT erred in failing to have regard to relevant material; and
f)Ground 14 asserts the SSAT made a determination inconsistent with their finding of special circumstances.
The father indicated that his main focus was on Grounds 1, 2 and 3 but that he continued to press the other grounds.
Grounds 1 and 2 – denial of procedural fairness and bias
The father addressed these grounds together in both his oral submissions and written submissions. He argued that these grounds relate to the manner in which the Tribunal conducted the hearing and also a number of incidents during the hearing.
There were a large number of “errors” and instances identified by the father as evidence of procedural unfairness or bias. It is not necessary to repeat these in full, we will instead focus on those that appear to be the genesis of his complaint. The main components of the father’s arguments can be summarised as follows:
a)that he only received notice on 9 December 2011 that the second appeal was to be heard on 11 December 2011, together with the first appeal, and the SSAT did not give him any prior opportunity to comment or object to this decision;
b)that neither party had received the s 95(3) documents from the Child Support Registrar prior to the hearing and that this situation lead to a “…clear apprehended bias on the part of the SSAT...” (Father’s written submissions, 24 October 2013, page 5);
c)further, the SSAT did not confirm whether the father had received the s 95(3) documents from the Child Support Registrar. Consequently, the primary judge failed to appreciate that he had been denied procedural fairness by the SSAT (Father’s written submissions, 24 October 2013, pages 2 – 3);
d)the father was denied procedural fairness when he advised the SSAT he wished to rely upon further documents, including court documents filed in another parenting and property matter before the courts and they provided no directions or opportunity for the father to do so (Father’s written submissions, 24 October 2013, page 4 - 5); and
e)as the SSAT had not followed their own policies and procedures, this led to an “…inequality, prejudice and bias of the SSAT…” towards the father and the SSAT did not address these concerns during the hearing (Father’s written submissions, 24 October 2013, page 3).
Notice of the SSAT hearing the appeals together
In his oral submissions, the father was at pains to explain to the court that he was at a significant disadvantage because of the lack of notice that the two matters before the SSAT would be heard together.
In her written submissions, counsel for the Child Support Registrar explains:
36.It is not disputed that the SSAT Principal Member did not provide the [father] written notice of the hearing for the [father’s] appeal against the refusal decision [being the Second Appeal]. However, a decision of the Principal Member cannot be called into question in an appeal under s 110B of the Collection Act. That is because appeals under s 110B are from decisions “of the SSAT”. As Halligan FM held in Manchester v Manchester (SSAT Appeal) [2011] FMCAfam 1215, the Collection Act recognises a clear delineation of power between the SSAT on the one hand, and the Principal Member, on the other. A determination under s 103A is one which is made by the Principal Member, not the SSAT. The Court has no jurisdiction in an appeal pursuant to section 110B to interfere with a decision of the former.
This submission is entirely correct. We would also note that notwithstanding the decision of the Principal Member of the SSAT to hear the first SSAT Appeal and the second SSAT Appeal together, the father was then afforded an opportunity to provide any further material in relation to the second appeal he felt might be missing. We will return to this issue in further detail shortly.
Section 95(3) documents and further submissions
The father also argues that he was disadvantaged by the apparent failure of the SSAT to provide the material to him contained within Exhibit 2, being the s 95(3) documents in relation to the second SSAT Appeal.
It was argued that as he was given no opportunity to review the documents at the time of the hearing, nor did he receive them within the seven day extension granted by the Tribunal, he was then unable to make submissions about those documents and also unable to make submissions that he had in fact attempted to terminate the Enrolment Agreement Contract with the child’s school, X School.
The father’s central complaint was that his change of intention with regard to private schooling was not properly considered and/or ignored by the Tribunal and the primary judge. This is, of course, different to his initial application for a departure from the assessment on 29 April 2011 and his two appeals to the SSAT. In that departure application, the father argued a departure on the basis of reasons which generally covered issues of his income and capacity to pay child support, not his consent or otherwise about the child attending a private school.
Returning to the material before the Tribunal, the father on appeal alleges he never received a bundle of documents, namely Exhibit 2, and was therefore denied procedural fairness. It is important to examine the factual circumstances around this issue.
The material before us demonstrates that what the Tribunal said to the father at the time he appeared before them, namely that the facts and circumstance of the second SSAT Appeal related to the same material arising from the first SSAT Appeal, was completely accurate.
Indeed, there was nothing raised by the father in the second SSAT Appeal to suggest that it was, at any stage, about payment of school fees. That decision was apparently solely related to his capacity to pay and, subsequently on his objection, what he claimed was less than full disclosure by the mother. His submissions both to the primary judge and to this Court attempt to suggest otherwise.
As to Exhibit 2, the onus was on the father to obtain the documents. When it became clear at the end of the seven day period that he had not received the documents, there is no evidence he engaged with the SSAT to obtain access. As correctly identified by the primary judge:
131.It was not the Tribunal which denied him procedural fairness, it was his own acts or omissions which led him to the conclusion that he had not seen the documents, did not have the documents, was not going to request them or identify them and then claim he could not respond to something he did not know about.
At the commencement of the hearing before the SSAT the father said that he had not been afforded procedural fairness. It is important to note what the Tribunal explained to the father:
[SCO #1]:Now, the reason the tribunal has decided to hear both of them together is because it’s all change of assessment. In a change of assessment matter we consider all of the financial circumstances of both of you, the needs of the child and so forth, so we can consider anything that you think is relevant to …
[The father]: I just don’t think I’ve been afforded procedural fairness in that manner, because I haven’t had the opportunity to provide documents to the SSAT…
[SCO #1]:Okay. Well I’m happy to, as we go through, if there’s anything that you think you need to provide that’s extra, that you haven’t provided already in relation to then ---
[The father]: I know, but if I did provide it though, that would leave the other party an opportunity to object to it because under the SSAT, you are provided with at least a 20-day period to give that to your … and it will just – it will be – it will be a waste of time. It – we – we need ---
[The father]: It’s the same issues.
[SCO #1]: Okay.
[The father]: I need – we need to have the opportunity to – like I received a letter from the SSAT saying that it will be a pre-hearing for this matter, the second matter. That wasn’t done.
[SCO #1]:Okay. From what I can see there’s the issues in the second matter are exactly the same as the issues in the first matter, so I ---
[The father]: Well, I haven’t had the opportunity to provide the material.
[SCO #1]: Well ---
[The father]: I was told by a telephone call on Friday afternoon ---
[SCO #1]:Okay. Can I just say – so in relation to the first matter, okay, there was a pre-hearing conference, there was directions made about anything that you think is relevant that you want to provide.
[The father]: That’s all very good, that justifies ….
[SCO #1]:Now, as I said, just from reading them, the issues seem to be the same, so I couldn’t imagine what would be relevant to the second, but not the first, that you might want to provide, but if there’s something that you think you haven’t provided which is relevant to the second matter and not to the first, and as we get to those matters, you – you know, you can let us know what it is ---
[The father]: I guess what’s happened – what’s going to happen is I haven’t been given the opportunity to provide the information for the second one, so what will I do is it will generate another change assessment with the Child Support Agency, because this one hasn’t been given the opportunity to provide the information that I have required, because a lot of information that I have required about the other party’s estate, which – which I would like to provide, but haven’t been given that opportunity to provide that information, so ---
…
[SCO #2]:[Father], [SCO #1] has made it abundantly clear that if it’s relevant you will be able to provide it today.
[The father]: But I haven’t got that information today.
[SCO #1]: No.
[The father]: I wasn’t given any notice.
[SCO #1]: But you will be given an opportunity
…
[The father]: I wasn’t given enough notice.
[SCO #2]:But if you are able to identify the information which you believe is relevant, with sufficient clarity that we can issue a direction that it be produced, then we will do so.
[The father]: Okay. Yes. Okay. Fair enough.
[SCO #2]: Okay.
[The father]: If we can produce that at a later date, that will be fine. Yes.
[SCO #2]: Of course.
[The father]: Yes.
[SCO #2]: If it’s relevant.
[The father]: Yes. Okay. Yes.
(Transcript, 12 December 2011, page 3, line 16)
It is evident from the transcript that the Tribunal was aware the father alleged he never received the papers in Exhibit 2. The Tribunal member said to the father:
[SCO#1]:The only thing that’s obviously different in here is that there’s ---
[The mother]: That’s their without prejudice settlement offer, that one.
[SCO#1]:There’s a different – no, there’s a different objection decision.
…
And obviously different original change of assessment decision. This was the second ---
[The father]: No, I haven’t received that, no.
[SCO#1]:Okay, So we will deal with it at the end about how we want to go about giving you both an opportunity to comment, but you would have received the objection decision, because that would have come ---
[The father]: Yes.
[SCO#1]:--- from the CSA. So you know what the outcome is, and you know the reasons for that. So I guess in that aspect there’s no surprise to it and, as I said, I think the issues are the same as in the other matter. So I will mark those exhibit 2.
(Transcript, 12 December 2011, page 8, line 40)
It is also germane to observe that the directions issued at the pre-hearing conference which took place in relation to the SSAT appeals included material the father and the mother were to provide to the SSAT. In each case the directions provided for “any additional material either party wishes to rely on at hearing”.
It is clear that despite the opportunity afforded to the father by the Tribunal to make further submissions he did not use this opportunity to raise his intention to no longer have his daughter privately schooled. The father claims he was denied an opportunity to submit evidence that he had attempted to terminate the Enrolment Agreement Contract for X School. It is clear that he was afforded an opportunity to raise this issue and again, by his own actions, failed to do so. The primary judge concluded:
99.While I cannot make a decision on whether the appellant received the documents or not, there is no issue between the parties that the appellant put the Tribunal on notice that he had not received the documents, but also that he was given extra time, seven days, to make further written submissions on any of the documents.
…
101.His response to the Tribunal member who said time would be allowed, was "fair enough", as can be seen in the transcript.
102.He then raised the issue in this appeal, however, two facts are apparent. Firstly, the Tribunal extended extra time to the appellant to make submissions on the documents, if he identified issues in them, and secondly, there is evidence that the documents were sent to him.
(original emphasis)
It was only at the appeal hearing before the primary judge (from the decision of the SSAT) that the father raised his intention about the child not attending a private school. Notwithstanding this, the father was afforded an opportunity by the primary judge to amend his notice of appeal and file further material.
The primary judge made directions on 28 May 2012 which gave the father leave to amend his appeal, to be filed at least 28 days before the hearing date of 12 December 2012. This afforded the father some six months to amend his material as required.
Instead, the father sought leave to amend his application on the day of the hearing and was correctly refused leave by the primary judge for the following reasons:
16.The new material attempted to rely on subpoenaed material regarding school fees, which was never put before the Tribunal for its decision. The subpoenaed material was obtained for other proceedings under the Family Law Act 1975 and is before another judge.
…
33.There was no satisfactory explanation as to why the appellant was seeking to rely on a change to his case so late in the proceedings, when it was apparent he had known the subpoenaed material had existed for some time. That is apart from the fact that the alleged evidence is contained in subpoenaed documents secured for a separate matter under a separate Act and was not before the Tribunal. The subpoena was issued for a separate purpose and I am not persuaded it should be used for other purposes.
Notwithstanding his submissions to the primary judge and to us that he had not received the s 93(2) documents from the CSA in relation to the second appeal, (which may or may not be correct) there was no procedural unfairness. There were no documents which would have led to a different result.
A further limb of the father’s argument appeared to be that the Tribunal did not have regard to all of the material he put before them. The father initially claimed that there was material that the Tribunal had and did not take into account. Ultimately he submitted that there was material of which he was unaware that the Tribunal did rely on. These submissions were inconsistent.
When asked about this by us, his responses were evasive and inconsistent. The father said it was the Tribunal’s obligation to provide the material to him. We observe, however, that the Tribunal pointed out to the father that there was nothing that was new and of any consequence in the material.
When one goes back to the basis of the departure application, from which the appeal derives, it is about changes in his circumstances and the financial circumstances of the mother and not about any documents relating to the child’s schooling. On a careful analysis therefore of what his departure application was about, it must be now demonstrably clear that the material that he was addressing us on could not have been relevant or material to that decision. He was given an opportunity to file whatever material he thought necessary in relation to that precise departure application (and appeal from its refusal). In addition to all of those matters, it is clear that before the matter was heard by the primary judge, directions were made enabling the father to file further material if there were matters that he asserted were in the documents but omitted by the Tribunal. He had the opportunity to raise them on that occasion but failed to do so.
It is entirely without foundation for the father to submit, as he did, that the Tribunal ignored Exhibit 2, or alternatively, as he put to us, that they took the contents in the exhibits into account without providing him an opportunity to make submissions. That ignores the gravamen of his departure application and the fact that it was entirely up to him to produce any further documentation to support it. In particular, it was not about the enrolment at school of the child. Hence, it was entirely erroneous to submit that the Tribunal relied on material that he did not have at the hearing or that they did not rely on material that was in the file but should have been considered. That ignores the whole basis upon which his departure application was made – it was not about the child’s school fees and enrolment.
Prejudice and Bias
Dealing with the allegation of bias, the primary judge correctly identified that the father did not ask any members of the Tribunal to disqualify themselves [88]. The primary judge commented:
89.While a Tribunal should disqualify itself for an apprehended bias, if the Tribunal does not and cannot raise a bias issue itself, then there must necessarily be an application, supported by grounds. The appellant said he never asked the Tribunal to step aside for a bias, because he did not know he would have to at that stage, which I suppose could be a set of circumstances which the court is asked to rule on at a later stage.
(original emphasis)
We would note again that the father, at the time of the hearing before the Tribunal, was a practicing solicitor.
These grounds are without merit.
Ground 3
Ground 3 asserts jurisdictional error in a failure to take into account relevant material, in particular the failure of the SSAT to consider the appellant’s submissions about why the child had attended Y School, why she was withdrawn and that the only reasons she was enrolled in X School was because the father had agreed to pay the school fees. We reiterate the comments that we have already made that this argument, although agitated before the primary judge, was the not gravamen of the original departure application. However, it was raised by the father before the SSAT, where the following exchange took place:
[SCO #1]: So where was she going originally?
[The mother]: [Y School].
[SCO #1]: So she was going to [Y School].
[SCO #2]: So is it that you’re disputing the choice of private school, rather than a choice of private versus public?
[The father]: Well ,basically we pulled her out of [Y School] because we couldn’t afford it. And I said, “Well, we can’t put her into another school because I can’t afford it”, and then she said, “Well, we will go to [School X], and if we can’t afford it my dad will pay the bills, or fix it up or send him the bill and we will put it through the business”.
[SCO #1]: Right, so you don’t – by the sounds of it you don’t disagree with her being privately schooled, but what you’re saying is ---
[The father]: I can’t afford it.
[SCO #1]: You say you can’t afford it.
[The father]: Afford it, yes.
[SCO #1]: Because there’s two parts you’re looking at school fees. One is she being educated in a way that was expected or intended by both of [you].
[The father]: I would like to go on overseas holidays, but I can’t afford it either.
[SCO #1]: Yes, but then secondly the issue is even if that is the case, can you afford to contribute to it.
[The father]: I can dream about it, but I can’t afford it.
[SCO #1]: That’s a separate issue. Okay. Okay. So if you could afford to contribute to the school fees, you would do so and you would be happy to do so.
[The father]: Well, if I think …. My daughter, yes.
[SCO #1]: But your issue is at this stage, you say you can’t. And that’s an issue that we will look at when we look at your circumstances.
[The father]: Yes.
(Transcript, 12 December 2011, page 10, line 13)
Demonstrably, the SSAT did have before it this evidence and considered it. The decision was that the appellant could afford to contribute to the school fees, but more importantly this issue was discussed by the SSAT at [24] to [31] of their judgment. It could not, by any stretch, be suggested that the SSAT had ignored relevant material or evidence and their decision contrary to the wishes of the father does not amount to jurisdictional error.
Grounds 4 – 18
We do not consider it is necessary to restate the findings of the Tribunal or set out any further the reasons of the primary judge. Suffice to say these grounds are entirely without merit. As found by the primary judge, none of these grounds raise a question of law within the terms of s 110B. There is no appellable error.
CONCLUSION
In Wild v Ballard (1997) FLC 92-771, the Full Court said at FLC 84,448:
As already indicated s 102 of the Child Support (Assessment) Act provides that an appeal from a single judge of the court exercising jurisdiction under that Act lies only with the leave of the Full Court. In Gilmour and Gilmour the Full Court (Ellis, Finn and Maxwell JJ) endorsed suggestions made in both Bassingthwaite v Leane and Best and Best that leave applications under this legislation ought be approached less restrictively than were this an application from an interlocutory order. The court said that if a party’s substantive rights have been significantly affected by an error at first instance, then it would be appropriate to grant leave to appeal under the section. It is appropriate then to examine whether the appellant has had his substantive rights significantly affected by any error of principle made by the trial judge.
(Citations omitted and original emphasis)
See also Hendy and Deputy Child Support Registrar and Webb [2001] FamCA 632.
We thus approach our task of determining whether to grant leave bearing in mind that we should not be too restrictive if there has been any error of principle which has affected the appellant’s rights. We are satisfied, however, from a consideration of the matters to which we have referred that the appeal is without merit and there has been no error of principle affecting the rights of the father. Accordingly, leave should not be granted.
COSTS
At the conclusion of the hearing of the appeal, we asked for submissions in relation to costs.
If leave is not granted or the appeal fails, counsel for the Child Support Registrar sought an order for costs.
The mother also asked for costs and that she would seek costs on an indemnity basis. In her written submissions, the mother argued that the father:
…should be admonished for bringing such an appeal to this Court. His qualifications and experience as a solicitor are such that, on any case, he can be assumed to have a significant earning capacity, yet he has sought relief from this Court to remedy a decision in which he has been deemed to have an income of a mere $60,000 per annum…
(Mother’s written submissions, 18 November 2013, page 8)
The father indicated he would oppose any order for costs.
Section 117(1) of the Family Law Act 1975 (Cth) provides that subject to s 117(2) and other provisions, each party shall bear their own costs. Section 117(2) provides that if the court is of the opinion that there are circumstances justifying an order for costs the court may make such an order. Section 117(2A) provides that in making such an order for costs, the court should have regard to various factors.
We think it is appropriate to particularly have regard to the following s117(2A) factors:
a)financial circumstances of each of the parties to the proceedings – the father is a declared bankrupt. The mother is responsible for the full time care of the child, including financially, and works part time.
b)conduct of the parties – the father has a litigious history with the courts. There have been eight finalised Family Court of Australia appeals, and a further four pending appeals. There have been six applications for special leave to the High Court of Australia, four have been dismissed, two are pending; and
c)these proceedings have been wholly unsuccessful – in this instance, the appeal has been wholly unsuccessful as no appellable error has been identified and it is entirely without merit.
Irrespective of the father’s present status, an order for costs should be made in favour of the Child Support Registrar and the mother.
Although the mother sought a costs order on an indemnity basis, we are not satisfied that this a case which falls within the exceptional circumstances that are required for such an order.
I certify that the preceding one hundred and fifteen (115) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, May & Kent JJ) delivered on 19 February 2016
Associate:
Date: 19 February 2016
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