Richardson and Older

[2008] FamCA 43

FAMILY COURT OF AUSTRALIA

RICHARDSON & OLDER [2008] FamCA 43

FAMILY LAW – CHILD SUPPORT – Appeal – s105 of the Child Support (Assessment Act) 1989 – principles applicable to leave

Family Law Act 1975 (Cth)
Child Support (Assessment Act) 1989 (Cth)

APPLICANT: Mr Richardson

RESPONDENT: Ms Older

FILE NUMBER: NCC 2211 of 2001

DATE DELIVERED: 15 January 2008

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Justice Fowler

HEARING DATE: 14 January 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Mr Drake

SOLICITOR FOR THE RESPONDENT: Mr Nash

Orders

1. The father is granted leave to appeal from the decision of Magistrate Railton made on 19 June 2007.

2. The appeal is fixed for hearing at 9.30 am on Friday, 28 March 2008 before Justice Fowler in the Newcastle Registry.

3. Both parties are to file and serve any material by way of fresh evidence in support of their case on or before Friday, 14 March 2008

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice Fowler delivered this day will for all publication and reporting purposes be referred to as Richardson & Older.

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: NCC 2211 of 2001

MR RICHARDSON

Applicant

And

MS OLDER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The matter before the court is an application for leave to appeal from the decision of Magistrate Railton made on 19 June 2007 dismissing the application brought by the father.

2. That application sought the overturning of a decision of the Child Support Registrar with respect to the child support payable for the two children of his relationship with the mother.  Those children are a son born in December 1992 and a daughter born in October 1997.

3. In January 2006 following an application made by the mother, the decision of the Child Support Registrar which adjusted the income of the father on which child support for the two children was determined was objected to by the father and his objection disallowed by the Child Support Registrar.

4. The appeal is brought pursuant to the provisions of Section 105 of the Child Support Act which provides that an appeal lies from a decree of a court of summary jurisdiction of a State to the Family Court.

5. Such appeal under Section 105(2) can only be brought with the leave of the court.

6. Section 105(6) provides that the appeal if leave is granted is to proceed by way of a hearing de novo but the Court may receive as evidence any record of evidence given in the matter, any affidavit filed or exhibit received in the court of summary jurisdiction.

7. This judgment relates only to the question of whether leave should be granted.

8. The Act is not of much assistance in identifying the matters that should be taken into account on an application for such leave.  The judgments of the Full Court on leave to appeal on questions of law do not seem to be particularly helpful since the result of leave in this case will be the grant of a hearing de novo.

9. I believe that what I have to consider in determining whether leave should be granted is whether having regard to the evidence before the Magistrate and any proposed fresh evidence there is an arguable case on appeal.

10. If I determine that there is an arguable case on appeal, I have to consider the hardship to the applicant were leave not to be granted and the hardship to the respondent were leave to be granted.

11. It is not for me on an application for leave to make final determinations of fact but rather whether taking the applicant’s case at its highest there is an arguable case.

12. The pivot of the learned Magistrate’s decision is found in his statement that:

    “Having regard to my adverse findings as to the issue of the applicant’s credibility I cannot accept his evidence as to his income, assets or capabilities (sic).  I therefore find that the applicant has not discharged his onus to establish any of the grounds set out in section 117(2) and the application must therefore be refused.”

13. Usually of course an appeal court will not disturb findings of credit of the court appealed from because it is peculiarly within that court’s perception of the witnesses giving evidence (a benefit not generally afforded to appeal courts) which enables it to determine those issues.

14. The current case is however quite different and given my view that I must determine it having regard to not only the evidence adduced before the learned Magistrate but now which may also be adduced on an appeal.

15. Given that a hearing following a grant of leave is a hearing de novo the question of credit will, if leave is granted, be determined by the appeal court sitting as a court of first instance, albeit with the assistance of evidence earlier given.

16. Each of the parties has indicated that should leave be granted each of them would wish to adduce fresh evidence in support of their case.

17. I should mention at this stage that there is a further order of the learned Magistrate appealed from namely an order as to costs, it being asserted that the learned Magistrate did not consider all those matters which are appropriate to consider under Section 117 of the Family Law Act in making a decision as to costs and there is some merit in the argument that this is the case.

18. Fresh evidence admitted for the purpose of the application for leave to appeal was contained in an affidavit of the father sworn 12 September 2007 of some 39 paragraphs.

19. Taking into account the evidence that remained after objections were taken, it seems that much of the material before the learned Magistrate, and on which he appeared to rely as impugning the father’s credit was explained in that affidavit and if on further hearing they survived the test of cross-examination would bring the fundamental pivot of the learned magistrate’s decision into question.

20. The father in his affidavit for example now offers a detailed dissection of payments from the account into which the proceeds of sale of certain property of his was deposited.  He also provides an accounting for the receipts of monies from that sale.

21. He details amounts which he says he spent on the children and annexes a full itemised statement of his account with the Child Support Agency which shows continuing payments and indeed for part of the time payments which placed the account in credit for the whole of 2005.  Payments had also been made at the level before the adjustment complained of throughout 2006.

22. Had the material referred to been before the learned Magistrate the findings on credit may well have been different and if it is ultimately accepted on hearing as an accurate account of the husband’s dealing with the agency the view of the learned Magistrate that “the husband has an aversion to paying child support” would appear unsustainable.

23. In addition I have had an opportunity of reading the transcript of evidence before the learned Magistrate and it seems to me that much of the cross examination of the father produced evidence of a quality and content which could have been referable to a man lacking literacy education and skills rather than a man deliberately seeking to deceive.

24. However ultimately the question of the credibility of all of the evidence will be a matter for a further hearing.

25. I believe having regard to the very narrow basis upon which the learned Magistrate made his decision and the explanations now proffered that there is a sufficiently arguable case for the applicant on appeal for leave to appeal to be granted.

26. I must now turn to the question of hardship.  If the father’s evidence as to his income earned and his capacity to pay is accepted on the further hearing then to visit him with child support arrears of about $25,000 which has been occasioned by the application of an income he has been deemed to have rather than a consideration, he would say, of his actual income and capacity to pay would impose a very significant hardship on a man of his apparently limited means.

27. On the other hand the respondent to the appeal has not had the benefit of a decision made in January 2006 which is now some time ago.

28. It is however possible to list this matter for hearing on Friday, 28 March 2008 and I believe that in those circumstances any hardship occasioned to the mother is not sufficient to counteract the hardship to the father were he not granted leave to appeal.

29. I accordingly make the orders set forth above.

I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.

Associate:

Date:  15 January 2008