SALA & HABNER
[2018] FCCA 2321
•22 August 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SALA & HABNER | [2018] FCCA 2321 |
| Catchwords: STATUTORY INTERPRETATION – Meaning in law of the word “exceptional circumstances” – ordinary construction – examination of relevant circumstances determines existence of exceptional circumstances – subject to particular statutory context. |
| Legislation: Child Support (Assessment) Act 1989, s.136(2)(d) |
| Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Cabal v United Mexican States [2001] HCA 42 Carr v Western Australia (2007) 232 CLR 138 Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648 Hasim & Ors v Attorney General (Cth) (2013) 218 FCR 25 In the matter of an application for bail by Michael Barbaro [2004] VSC 404 K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 Platt v Ong [1972] VR 197 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 |
| Other materials: The Honourable Justice Kenneth Hayne AC, ‘Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction?’ (2014) 13(2) Oxford Commonwealth Law Journal 271 |
| Applicant: | MR SALA |
| Respondent: | MS HABNER |
| File Number: | MLC 11358 of 2012 |
| Judgment of: | His Honour Judge Wilson |
| Hearing date: | 11 April 2018 |
| Date of Last Submission: | 2 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 22 August 2018 |
REPRESENTATION (on the papers)
| Counsel for the Applicant: | Susan Buchanan |
| Solicitors for the Applicant: | Chris Woods & Associates |
| Counsel for the Respondent: | Jeffrey Stanley |
| Solicitors for the Respondent: | Lander & Rogers |
ORDER
That the application filed on 5 March 2018 is dismissed.
DIRECTION
That on or before 5 September 2018 each party file and serve any submissions on the question of costs.
IT IS NOTED that publication of this judgment under the pseudonym Sala & Habner is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11358 of 2012
| MR SALA |
Applicant
And
| MS HABNER |
Respondent
REASONS FOR JUDGMENT
Introduction
The issue for determination in this case is whether the binding child support agreement (“BCSA”) made between the father and mother in relation to their child [X] (“[X]”) should be set aside.
It was common ground that the BCSA was executed conterminously with final orders made by consent by his Honour Judge O’Sullivan that addressed property and parenting matters. The BCSA was compliant with the provisions of the Child Support (Assessment) Act (“Act”).
In broad terms the BCSA made provision for the payment of expenses relating to [X]’s schooling, his extracurricular activities, private health insurance as well as periodic child support and other issues.
It was not disputed that in October 2017 the father wrote to the school [X] attended stating that he (the father) would not be paying any further invoices addressed to the father by that school. Equally, it was common ground that the father was in arrears in his obligations under the BCSA. As at April 2018, arrears stood at approximately $15 000. Since then they have likely increased.
By application to this court made on 5 March 2018 the father sought orders the effect of which was to set aside the BCSA in toto. He relied on s 136(2)(d) of the Act, contending that exceptional circumstances existed warranting the making of such an order because, relevantly here, the child or the applicant will suffer hardship if the agreement is not set aside.
The father advanced as the basis for his application that he, not [X], will suffer hardship unless the BCSA is set aside. He relied on contentions that –
a)when the BCSA was made he was in employment as an (occupation omitted) earning in the vicinity of $160 000 per annum;
b)when the BCSA was made he had been promised the allotment of shares in a particular company since which in 2014 he was made redundant;
c)he had been unemployed for a period;
d)from May 2015 he acquired a 10% shareholding in Company Pty Ltd upon his paying $20 000 in return for which he was to be paid a salary and a dividend as a shareholder; and
e)no dividend has yet been paid as that company has yet to post a profit and has been run at a loss.
In February 2017 the father became involved with a new partner with whom he purchased a house in Suburb A in 2018. The father subsequently commenced employment with (employer omitted) as a (occupation omitted) currently earning $128 905 on a three year fixed term contract.
Against that backdrop the father sought an order setting aside the BCSA.
Synopsis
For the reasons that follow I dismiss his application.
Factual scenario
[X] was born on 2005. He lives with autism spectrum disorder (“ASD”), receiving support and treatment from a developmental paediatrician and psychologist. For eight years [X] has been a student of School 1 in Melbourne. He was enrolled in 2010 when he was two years of age. [X]’s parents married on 2005. They divorced on 17 May 2013.
[X]’s mother, the respondent to this application, deposed to [X]’s ASD requiring ongoing support and treatment and his need for a stable and consistent routine. She said [X] suffers from anxiety if his routine is upset. She said he suffers from allergies, he needs an epi-pen, he needs a dietician and the help of a gastroenterologist. She said School 1 has provided and continues to provide for [X]’s individual needs, specialised programmes, spelling support and resilience training workshops as well as an allergies management plan. She said [X] had attended School 1 for eight years and, by virtue of the formation of a cohort of his friends as well as the social emotional and educational care that School 1 provides, [X] is happy and well-adjusted at that school.
[X]’s father cited several reasons for his wish to terminate the BCSA. Among them were the following –
a)the father’s current financial state did not enable him to meet the commitment under the BCSA; and
b)the father’s new partner works at (employer omitted) where fees are significantly discounted and [X] could be enrolled at that school in lieu of School 1.
In response, [X]’s mother stated that enrolling [X] at School 2 was not in [X]’s best interests. She said the travelling time from [X]’s home to and from School 2 each day would amount to two if not three hours. No evidence was adduced on point but it was a fair inference that any change of school would be detrimental to [X]’s specific and idiosyncratic circumstances when compared with what seemed to be the uncontested evidence that he is happy, contented and well-adjusted at School 1.
Against that factual backdrop I was required to determine the father’s application.
Consideration
As the starting point, I must apply the elements of s 136(2)(d) of the Act to the circumstances of this case. When deconstructed, that section entitles a court, in the exercise of its discretion, to set aside a BCSA where, by reason of exceptional circumstances arising since the entry into the BCSA, the applicant or the child will suffer hardship unless the BCSA is set aside.
Self-evidently, several discrete elements arise for consideration. In the passages below I have addressed them. But to begin let me address the proper approach to statutory construction as prescribed by the decided cases. As I held in Commissioner of State Revenue v Kimiora,[1] ultimately, it is the primacy of the words used in the legislation itself that determines the proper construction of the legislation. Since the decision of the High Court of Australia in Project Blue Sky Inc v Australian Broadcasting Authority (“Project Blue Sky”),[2] Australian law has held that the primary object of statutory construction is to construe the relevant provisions so that it is consistent with the language and purpose of all of the provisions of the statute.[3] That much is consistent with the observations of Barwick CJ in Taylor v Public Service Board (NSW).[4] According to Lord Scarman’s speech in the House of Lords in Southwest Water Authority v Rumble’s[5] as well as the observations of Wilson and Mason JJ in Cooper Brooks (Wollongong) Pty Ltd v Commissioner of Taxation,[6] the meaning of a particular legislative provision must be determined by reference to the language of the instrument viewed as a whole. The context, the general purpose and policy of the provision of a piece of legislation as well as its consistency and fairness are surer guides to meaning than is the topic with which the legislation is constructed.[7] As was held in Toronto Suburban Railway Co v Toronto Corporation,[8] Minister for Lands (NSW) v Jeremias[9] and K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd,[10] the process of construction must always begin with an examination of the context of the provision that is being construed.
[1] (2016) 309 FLR 277 (at [52]-[56])
[2] (1998) 194 CLR 355
[3] (1998) 194 CLR 355 (at [69])
[4] (1976) 137 CLR 208
[5] [1985] AC 609
[6] (1981) 147 CLR 297
[7] (1998) 194 CLR 355 (at [69])
[8] [1915] AC 590, 597
[9] (1917) 23 CLR 322
[10] (1985) 157 CLR 309
High Court authority of very long standing has prescribed that a court construing a statutory provision must strive to give meaning to every word of the relevant provision. So much was held in TheCommonwealth v Baume[11] as well as in Chu Kheng Lim v Minister for Immigration.[12] No sentence, clause or word is superfluous, void or insignificant if by any other construction they may all be made useful and pertinent.[13]
[11] (1905) 2 CLR 405, 414 and 419
[12] (1992) 176 CLR 1, 12
[13] R v Berchet [1794] EngR 1806
In Project Blue Sky the majority pointed out that the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended those words to have.[14] Ordinarily, that meaning will correspond with the grammatical meaning of the relevant provision.
[14] (1998) 194 CLR 355 (at [78])
More recently, in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue,[15] the majority (Hayne, Heydon, Crennan and Kiefel JJ) held that the task of statutory construction must begin with a consideration of the text itself and that historical considerations and extrinsic material cannot be relied upon to displace the clear meaning of the text.[16] Other decisions of the High Court reflect similar reasoning such as Yanner v Eaton,[17] Yarmirr v Northern Territory,[18] Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue,[19] Stevens v Kabushiki Kaisha Sony Computer Entertainment,[20] Carr v Western Australia,[21] Director of Public Prosecutions for Victoria v Le[22] and Northern Territory v Collins.[23]
[15] (2009) 239 CLR 27.
[16] (2009) 239 CLR 27 (at [47])
[17] (1999) 201 CLR 351, 366 (at [17])
[18] (2001) 208 CLR 1, 38–39 (at [13]–[14])
[19] (2001) 207 CLR 72
[20] (2005) 224 CLR 193
[21] (2007) 232 CLR 138
[22] (2007) 232 CLR 562
[23] (2008) 235 CLR 619
In many respects, modern Australian jurisprudence on the subject of statutory interpretation has placed former High Court Justice, the Honourable Justice Kenneth M Hayne at the vanguard. His extra- judicial writing on point is illuminating: The Honourable Justice Kenneth Hayne AC, ‘Statutes, Intentions and Courts: What Place Does The Notion of Intention (Legislative or Parliamentary) Have in Statutory Construction?’[24]
[24] (2014) 13(2) Oxford Commonwealth Law Journal, 271
Next, the section confers upon the court a discretion to make the order setting aside the BCSA if the court is satisfied about certain things. The legislation incorporates the use of the phrase “may”. The conferral of a discretion in those terms has been the subject of judicial attention in at least three pivotal decisions of the High Court of Australia, those being House v The King,[25] Norbis v Norbis[26] and most recently in Minister for Immigration and Border Protection v SZVFW,[27] judgment in which was handed down on 8 August 2018. In that latter case, Edelman J referred to the High Court decision in Norbis v Norbis as well as Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission[28] as grounding the statement that the term “discretion” can be a “slippery term that is used in the law in a number of ways”.[29]
[25] (1936) 55 CLR 499
[26] (1986) 161 CLR 513
[27] [2018] HCA 30
[28] (2000) 203 CLR 194
[29] [2018] HCA 30 (at [147])
In this case, the section authorised me to set aside the BCSA if satisfied that by reason of exceptional circumstances that had arisen subsequent to the entry into the BCSA the applicant (the father) or the child ([X]) will suffer hardship.
The mother’s counsel cited one authority only by way of support for the proposition that “exceptional” means in law “unusual”, “out of the ordinary” or “extraordinary”, those constructions emanating from a decision in the family law jurisdiction given in 2016. In fact, the point is of considerable veneration and I choose to prefer those more compelling authorities over the decision in the family law jurisdiction. Many, although not all, of the relevant authorities were drawn together by White J in the context of part 7AA of the Migration Act in the BVZ16 v Minister for Immigration and Border Protection.[30] Those authorities may be catalogued in the following manner –
a)the word “exceptional” is to be construed as an ordinary, familiar English adjective and not as a term of art, describing a circumstance that is such as to form an exception, being something out of the ordinary, something unusual, something special or uncommon yet it need not be unique, unprecedented or very rare but it cannot be something that is regularly, routinely or normally encountered (Lord Bingham of Cornhill CJ in R v Kelly (Attorney General’s Reference No 53 of 1998)[31] and Maan v Minister for Immigration and Citizenship)[32];
b)all relevant circumstances must be examined in order to determine whether exceptional circumstances exist because even though no single factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional (Brennan and Dawson JJ in Griffiths v The Queen,[33] Baker v The Queen,[34] Ho v Professional Services Review Committee No 295[35] and Hasim & Ors v Attorney General (Cth));[36] and
c)subject to the particular statutory context, circumstances will be exceptional if they are out of the ordinary or they are unusual (Keifel J in Hatcher v Cohn & Ors,[37] Lindgren J in An v Minister for Immigration and Citizenship[38] and my own decision in CSJ17 v Minister for Immigration and Border Protection).[39]
[30] [2017] FCA 958
[31] [2000] 1 QB 198
[32] (2009) 179 FCR 581
[33] (1989) 167 CLR 372, 379
[34] (2004) 223 CLR 513
[35] [2007] FCA 388
[36] (2013) 218 FCR 25
[37] (2004) 139 FCR 425
[38] (2007) 160 FCR 480
[39] (2018) 328 FLR 431
Other decisions of the High Court that have construed the phrase “exceptional circumstances” include (in the context of extradition law) Cabal v United Mexican States[40] and (in the context of a deportation order) Haoucher v Minister for Immigration and Ethnic Affairs.[41] In other contexts, bail most notably, the phrase has been interpreted extensively (In the matter of an application for bail by Michael Barbaro)[42] or exceptional circumstances grounding a claim for relief against forfeiture of a lease in Platt v Ong.[43]
[40] [2001] HCA 42
[41] (1990) 169 CLR 648
[42] [2004] VSC 404
[43] [1972] VR 197
For the purposes of s 136(2)(d) of the Act two additional things must exist. First, those exceptional circumstances must have a temporal significance in that they arose after the BCSA was created. Second, those exceptional circumstances must be such that the applicant (here the father) or a child (here [X]) will suffer unless the BCSA is set aside.
Before addressing whether the father proved, according to existing case law, that exceptional circumstances had arisen since the entry into the BCSA, it was necessary to identify whether the father or [X] will suffer hardship if the agreement is not set aside.
So far as [X] is concerned, the position is the opposite to the way the section was intended to operate. In other words, I entertain no doubt that [X] will suffer hardship if the BCSA is set aside. He is likely to lose the stability and support he presently enjoys at School 1, a school with which he is familiar and which he has attended for an extended period of time. While true, no expert evidence has been adduced in this case on the point, the best available evidence emanated from [X]’s mother to the effect that [X]’s development is likely to be impaired by his being forced to leave School 1. On the applicant’s version of the evidence, [X]’s leaving School 1 will follow if the BCSA is set aside. In short, I am persuaded that [X] will suffer hardship if the BCSA set aside. I reject the contention that [X] will not suffer hardship if the BCSA is set aside, as the father contended.
Turning now to a consideration of the father’s position, I am not persuaded that any of the father’s current circumstances or those that have arisen since his entry into the BCSA represent “exceptional circumstances” at law. It should not be forgotten that the father chose to purchase a property in Suburb A with his new partner. So far as the allocation of his discretionary spending is concerned, the father chose to enter into the mortgage of the Suburb A property. If in so doing he overlooked or ignored the financial impact of that undertaking, then that highlighted all the more the unmeritorious nature of this application. The fact that his share acquisition failed to materialise represented poor financial decision-making but it was far from “exceptional circumstances” for the purposes of the law. For that matter, none of the reasons given by the father as warranting the making of the orders he sought represented a proper jurisprudential basis for the grant of the relief he sought.
While I accept that the father’s circumstances changed subsequent to the entry into the BCSA, that change of itself was not determinative of this application. His change of circumstances was not properly characterised at law as being “exceptional circumstances”.
For those reasons, I dismiss this application.
As a final note, the father flirted with what he said was something of an inevitability if I were to refuse the relief he sought. He said that his own insolvency would likely occur. Whether or not that eventuates is beyond the matters with which I am concerned. If it does, the father may well have cause to examine the wisdom of certain of his financial undertakings since the entry into the BCSA. At all events, as a matter of deep legal doctrine (a point cited by Gillard J in Howtrac Rentals Pty Ltd v Thiess Contractors (NZ) Ltd)[44] the reasonable expectations of honest people should be protected by the law. Applying what his Honour there said was encapsulated by the law of contract, the mother had a valid basis for expecting that the BCSA would be performed by the father according to its terms. Its provisions were simple, they were easy to understand, they were not dependent on external circumstances and they had as their object the advancement of the interests of [X]. It is wholly inappropriate for the father to endeavour to extricate himself from those obligations, advancing unmeritorious grounds in the way he did in this case describing them as “exceptional circumstances”.
[44] [2000] VSC 415 (at [169])
I dismiss the application to set aside the BCSA.
I direct that any submissions the parties may wish to make on costs be filed and served within 14 days.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of his Honour Judge Wilson
Date: 22 August 2018
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