SCVG & Estate of KLD (No 5) - [2022] FedCFamC1F 818

Federal Circuit and Family Court of Australia
(DIVISION 1)
SCVG & Estate of KLD (No 5) [2022] FedCFamC1F 818

File number(s): SYC 4380 of 2008
SYC 5956 of 2016

Judgment of: GILL J

Date of judgment: 26 October 2022

Catchwords: FAMILY LAW – ORIGINAL JURISDICTION – Where the Court has inherent jurisdiction to set aside its own judgment at first instance on the basis of fraud – Principles of finality – Where the applicant had burden to prove actual fraud – Where the fraud must be a meditated and intentional contrivance – Not established – Where the fraud must be material – Not established – Where the claim cannot be a relitigation of the case at first instance, but requires cogent fresh or newly discovered evidence – No fresh evidence – Where repeated challenges constitute an abuse of process.

Legislation:
Child Support (Assessment) Act 1989 (Cth) Part 7, ss 111, 118

Child Support (Registration and Collection Act) 1988 (Cth) s 110B

Family Law Act 1975 (Cth) ss 102QB, 117

Legislation Act 2003 (Cth)

Cases cited:
Cabassi v Vila (1940) 64 CLR 130

Cameron v Cole (1944) 68 CLR 571

Charles Bright & Co Ltd v Sellar [1904] 1 KB 6

Clone Pty Ltd v Players Pty Ltd (In Liq)(Receivers and Managers Appointed) and Ors (2018) 264 CLR 165

Hip Foong Hong v Neotia & Co [1918] AC 888

Jonesco v Beard [1930] AC 298

McDonald v McDonald (1965) 113 CLR 529

Paris King Investments Pty Ltd & 1 Ors v Michael Norman Rayhill & 2 Ors [2006] NSWSC 578

Patch v Ward (1867) LR 3 Ch App 203

R v Forbes; ex parte Bevan (1972) 127 CLR 1

SCVG v Estate of KLD (Dec’d) (No 3) [2020] FamCA 176

SCVG & KLD [2018] FamCA 27

Taylor v Taylor (1979) 5 FamLR 289

Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

Division: Division 1 First Instance

Number of paragraphs: 162

Date of hearing: 8–10 February 2022

Place: Canberra

Solicitor for the Applicant: Litigant in person

Counsel for the Respondents: Mr Cox, SC

Counsel for the Respondents: Ms Seric

Solicitor for the Respondents: Macphillamy’s
ORDERS

SYC 4380 of 2008
SYC 5956 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR SCVG

Applicant

AND:
THE ESTATE OF KLD

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

order made by:

GILL J

DATE OF ORDER:

26 OCTOBER 2022

THE COURT ORDERS THAT:
1.Mr SCVG’s application to set aside orders of Justice Cronin of 20 August 2015 is dismissed.
2.Mr SCVG’s application to set aside orders of Judge Scarlett of 15 April 2015 is dismissed.
3.The application for leave to vary child support payable for the period 15 July 2011 to 3 December 2015 is dismissed.
4.The application to set aside the judgment of 14 September 2017 dismissing the applications for review of costs assessments made by Registrar Payget on 27 July 2017, (amended 31 August 2017), Registrar McNamara on 15 May 2017, and Registrar McNamara on 25 June 2017 is dismissed.
5.Issues in relation to costs and vexatious litigant applications are reserved for further directions.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & Estate of KLD has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
GILL J:
Introduction

The applications before the Court are made at the back of a long history of litigation between Mr SCVG (“Mr SCVG”) and the now deceased Ms KLD (“Ms KLD”) and involve challenges by Mr SCVG to matters that have otherwise been finally resolved in this Court, and the then Federal Circuit Court. Those challenges are reliant on the inherent or implied jurisdiction of the Court to set aside judgments that have been procured by fraud. Mr SCVG also seeks leave to apply to vary his child support obligations, reliant upon the same allegation of fraud.
The four challenges are set out below, and have been the subject of directions that required that Mr SCVG plead his case of fraud in respect of each.
The Cronin matter
By his application particularised in a Statement of Claim filed 15 October 2018 (see Annexure A to this judgment and see also judgment SCVG v Estate of KLD (Dec’d)(No 3)(“SCVG v Estate of KLD (No 3)”)[1] dated 20 March 2020), the applicant seeks to set aside the judgment of Cronin J in respect of costs made on 20 August 2015 (“the Cronin matter”). In summary, the applicant alleges that the costs judgment in favour of Ms KLD was tainted by the production to the Court of perjured evidence misstating her financial position. In particular, he says that Ms KLD asserted a liability to her mother for legal costs of $650,000 which was not in fact a liability, and that she asserted that her shareholdings in family related businesses were of nil or nominal value when they were of substantial value.
[1] [2020] FamCA 176.
This was asserted to have imposed a “grossly false understanding” of the relative financial circumstances of the parties upon Cronin J, in the context of financial circumstances being a consideration in making a costs order pursuant to s 117 of the Family Law Act 1975 (Cth) (“the Act”).
The Scarlett matter
By his application particularised in a Statement of Claim filed 18 June 2019 (see Annexure C to this judgment and see also judgment SCVG v Estate of KLD (Dec’d) (No 3) [2020] FamCA 176 dated 20 March 2020), the applicant seeks to set aside the judgment of Judge Scarlett of 15 April 2015 in respect of an appeal from the Social Security Appeals Tribunal (“SSAT”) regarding a Child Support assessment of 7 March 2013.
The determination of the SSAT adjusted the income of Mr SCVG and Ms KLD in respect of Child Support for the period 15 July 2011 to 31 December 2014. The proceedings before Judge Scarlett were pursuant to the then s 110B of the Child Support (Registration and Collection Act) 1988 (Cth).
In summary, Mr SCVG claims that Ms KLD misrepresented her financial circumstances in the proceedings before the SSAT in that she asserted that her shareholdings in family related businesses were of nil or nominal value when they were of substantial value.
Mr SCVG claims that the Court subsequently dismissed his appeal from the SSAT in reliance on Ms KLD’s misrepresentations.
The Child Support matter
By his application particularised in a Statement of Claim filed 14 January 2018 (see Annexure D to this judgment and see also judgment SCVG v Estate of KLD (No 3)), Mr SCVG seeks the grant of leave pursuant to s 111 of the Child Support (Assessment) Act 1989 (Cth) (“CSA Act”) for the court to make an order under s 118 of that Act to vary the Child Support payable for the period 15 July 2011 to 3 December 2015, a period that overlaps with the challenge in respect of the Judge Scarlett matter.
Mr SCVG seeks that the variation be constituted by the extension of a determination made by the Administrative Appeals Tribunal (“AAT”) on 1 May 2018 in relation to another period of Child Support that commenced on 4 December 2015, to extend the effect of that determination to the earlier period the subject of the Statement of Claim being the period 15 July 2011 to 3 December 2015.
In summary, Mr SCVG claims that Ms KLD misrepresented her financial circumstances in the proceedings before the AAT and the Child Support Registrar (“CSR”) in that she asserted a liability to her mother for legal costs of $750,000 which was not in fact a liability, and that she asserted that her shareholdings in family related businesses were of nil or nominal value when they were of substantial value.
Mr SCVG describes that he previously appealed the determination of the Child Support Agency (“CSA”) to the SSAT which resulted in the determination of the SSAT of 7 March 2013, being the determination that was the subject of the appeal before Judge Scarlett. That is, this forms a parallel challenge related to the subject of the decision of Judge Scarlett that is challenged above.
The email fraud
By his application particularised in a Statement of Claim filed 14 January 2019 (see Annexure B to this judgment and see also judgment SCVG v Estate of KLD (No 3)) Mr SCVG seeks to set aside orders of this Court of 14 September 2017 that dismissed Mr SCVG’s applications to review various decisions made by Registrars in relation to costs.
The dismissal of those applications was the consequence of the applicant’s failure to attend court on the day that they had been listed to be heard (14 September 2017), such failure occurring in the context that the allocated date had been determined to have been a suitable date for the applicant to attend.
In general terms the complaint of the applicant is that the solicitor for the respondent failed to advise the court of correspondence that the solicitor had received concerning the applicant’s desire to appear by telephone, or to have the matter adjourned.
Other issues
There are other issues between the parties, concerning various reserved costs, the costs of these applications, and whether vexatious proceedings orders directed against the applicant should be made pursuant to s 102QB of the Act. These issues were reserved to be dealt with following the delivery of this substantive judgment, given their reliance upon the conclusions reached in the substantive judgment.
material relied upon
Applicant
The applicant, Mr SCVG, relied upon the following:
(a)Consolidated affidavit regarding the Cronin J fraud matter filed 9 March 2021
(b)Statement of Claim filed 15 October 2018 (see Annexure A to this judgment)
(c)Consolidated affidavit regarding the Judge Scarlett fraud matter filed 9 March 2021
(d)Statement of Claim filed 18 June 2019 (see Annexure C to this judgment)
(e)Consolidated affidavit regarding the Child Support Agency matter filed 9 March 2021
(f)Statement of Claim filed 14 January 2018 (see Annexure D to this judgment)
(g)Consolidated affidavit regarding the email fraud matter filed 9 March 2021
(h)Statement of Claim filed 14 January 2019 (see Annexure B to this judgment)
First Respondent
As per the Case Outline document filed on 4 February 2022, the first respondent relied upon the following:
(a)Response to Application in a Case filed 1 February 2018
(b)Response to Application in a Case filed 1 May 2018
(c)Response to Application in a Case filed 15 November 2018
(d)Response to Application in a Case filed 22 November 2018
(e)Defence - “The Cronin Matter” filed 30 September 2020
(f)Defence - “The Email Fraud Matter” filed 30 September 2020
(g)Defence - “The Scarlett Matter” filed 30 September 2020
(h)Defence - “CSA Departure Matter” filed 30 September 2020
(i)Affidavit of Ms KLD filed 27 November 2018
(j)Affidavit of Christopher Macphillamy filed 15 November 2018
Legal Principles
The nature of the power
The jurisdiction called upon by Mr SCVG is not an appellate jurisdiction, but rather concerns the power of a court at first instance to set aside its own judgment on the basis of fraud.
Accepting that jurisdiction is not conferred by the agreement of the parties, neither party contended that such jurisdiction is unavailable to the court.
The leading authority in respect of the power is Clone Pty Ltd v Players Pty Ltd (In Liq) (Receivers and Managers Appointed) and Ors (“Clone”)[2]. There the High Court dealt with the “power of a court, by an original action, to set aside a judgment (often its own) based upon fraud,” as distinct from a power exercised upon appeal.[3]
[2] (2018) 264 CLR 165.
[3] Clone at [44].
It was a power there recognised as vested in the Supreme Court of South Australia “by operation of the common provision vesting in the Supreme Court the jurisdiction of the High Court of Chancery”.[4]
[4] Clone at [52].
While the power does not arise in this court on the same basis, as I identified in SCVG & KLD,[5] it is a power that is inherent to this court, despite this court’s status as a court of limited jurisdiction.
[5] [2018] FamCA 27.
In Taylor v Taylor (“Taylor”),[6] Gibbs J dealt with the issue of inherent jurisdiction. He accepted what was said by Menzies J in R v Forbes; Ex parte Bevan,[7] where he said:
“Inherent jurisdiction” is the power which a court has simply because it is a court of a particular description. Thus the Courts of Common Law without the aid of any authorizing provision had inherent jurisdiction to prevent abuse of their process and to punish for contempt. Inherent jurisdiction is not something derived by implication from statutory provisions conferring particular jurisdiction; if such a provision is to be considered as conferring more than is actually expressed that further jurisdiction is conferred by implication according to accepted standards of statutory construction and it would be inaccurate to describe it as “inherent jurisdiction”, which, as the name indicates, requires no authorizing provision. Courts of unlimited jurisdiction have “inherent jurisdiction”.
[6] (1979) 5 FamLR 289.
[7] (1972) 127 CLR 1 at p.7.
Justice Gibbs went on to state that although the Family Court is a superior court of limited jurisdiction, it possesses a discretionary power, in its inherent jurisdiction, which has not been displaced by the Act, to, quoting from Rich J in Cameron v Cole,[8]:
“…ensure that trials before it are conducted in accordance with the principles of natural justice”
[8] (1944) 68 CLR 571.
As to the scope of the inherent jurisdiction of the Family Court, Gibbs J observed that it was not derived either expressly, or by implication from the Act, and went no further than:
such as might be necessary to enable it to do justice within the limits of the jurisdiction which that Act confers on it.[9]
[9] Taylor at p.293.
In that same case, Mason J, dealing with the particular examples of setting aside default or ex parte judgments, accepted that the Family Court possessed inherent jurisdiction, despite being a court of limited jurisdiction.
Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court (Latham CJ, Rich and Williams JJ) concluded in Cameron v Cole (1944) 68 CLR 571 at 586, 589 at 607, that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction. A jurisdiction to set aside its orders is inherent in every court unless displaced by statute. In my opinion the jurisdiction extends not only to the setting aside of judgments which have been obtained without service or notice to a party, but to the setting aside of a default or ex parte judgment obtained when the absence of the party is due to no fault on his part. I can find no indication in the Family Law Act of an intention to displace this inherent jurisdiction.
(Citations omitted)
The question then remains as to whether the inherent jurisdiction described above extends to an original jurisdiction in the court to set aside a judgment on the basis of fraud, as described in Clone.
McDonald v McDonald (“McDonald”),[10] emphasised the significance of obtaining a judgment by fraud, and the manner in which such vitiates the judgment. Such an understanding carries with it the implication that, like a denial of natural justice, and like contempt perpetrated upon the court, fraud in the Clone sense goes to the heart of the administration of justice within the trial process. Fraud, contempt and denial of natural justice share the common feature of deep inconsistency with the Court’s character in administering justice.
[10] (1965) 113 CLR 529.
The description in Taylor of the character of the inherent jurisdiction as being “such as might be necessary to enable it to do justice within the limits of the jurisdiction which that Act confers on it” necessarily implies its extension to cover fraud in the same manner that it covers the denial of natural justice and contempt (unless otherwise displaced by the Act).[11] The inherent power as described in Taylor above should be considered to extend to the Court’s capacity to correct for fraud in the manner described in Clone.
[11] Taylor at p.293.
Scope and application of the power
As noted above, the availability of a power in the court at first instance to set aside a judgment on the basis of fraud was not doubted by the parties. What was contentious was the scope and applicability of the power.
In Clone, the High Court described the scope of the power to use an original action to set aside a judgment as “significantly circumscribed,”[12] and, insofar as is relevant here, as reliant upon fraud.[13] It was observed that, despite there being other occasions for the exercise of the power, it was “never suggested to extend to malpractice not amounting to fraud in the course of the proceedings.”[14] This restriction is particularly salient in respect of the alleged email fraud.
[12] Clone at [53].
[13] Clone at [52].
[14] Clone at [54].
Importantly the court considered that the occasion for the exercise of the power required actual fraud, “a meditated and intentional contrivance to keep the parties and the court in ignorance of the real facts of the case, and obtaining that decree by that contrivance.”[15] Equitable fraud, lack of frankness, or ulterior motive were not sufficient to attract the exercise of the power.[16]
[15] Clone at [55] citing Patch v Ward (1867) LR 3 Ch App 203 at p.212–213.
[16] Clone at [57].
The power was described by the court as exercisable on a “fresh application to rescind the perfected orders”[17] based upon pleaded and proven fraud.[18]
[17] Clone at [61].
[18] Clone at [62].
Reliance was also placed by the parties upon a series of cases that preceded Clone. They are particularly helpful in their recognition that the power does not concern a rehearing of the original action, being reliant rather on the proof of a fraud that will itself be the product of fresh evidence.
The judgment of Williams J in Cabassi v Vila (“Cabassi”),[19] recognised, reliant upon Hip Foong Hong v Neotia & Co,[20] and Jonesco v Beard,[21] that where “fraud is clearly proved the party defrauded is entitled to have the judgement set aside in an action.”[22] However he also observed, in apparent approval of Charles Bright & Co Ltd v Sellar,[23] that “actions to set aside a judgment on the ground of fraud do not invite the court to re-hear upon the old materials, but ‘fresh facts are brought forward, and the litigation may well be regarded as new and not appellate in its nature.’”[24]
[19] (1940) 64 CLR 130.
[20] [1918] AC 888.
[21] [1930] AC 298.
[22] Cabassi at p.146.
[23] [1904] 1 KB 6.
[24] Cabassi at p.147.
Williams J further observed that he had been unable to find an example of setting aside on the basis of fraud that was only reliant upon perjury,[25] noting:
In fact the court has said that except in very exceptional cases perjury is not a sufficient ground for setting aside a judgment, but in view of the allegation in the statement of claim that the evidence did deceive and fraudulently mislead the court I shall assume the plaintiff could establish such special circumstances.
(Citations omitted)
[25] Cabassi at p.147–8.

It may be taken that it is exceptional for setting aside to be justified on the basis of perjury but that exceptionality arises where the perjury, as a “meditated and intentional contrivance” has deceived and fraudulently misled the court in a manner material to the trial.
Reliance was also placed upon McDonald.[26] However, while at page 533 of McDonald, the judgment of Barwick CJ touched upon a trial in a new proceeding on the issue of fraud, the case was primarily concerned with fresh evidence alleging fraud being called on appeal, a distinction that was emphasised in the judgment of Taylor J at pages 535–536.
[26] (1965) 113 CLR 529.
In Wentworth v Rogers (No 5) (“Wentworth”),[27] Kirby P, supported by Hope and Samuels JJA recognised that, in the context of the strong public policy interest in the finality of litigation, the remedy sought here is extraordinary. Six principles were identified as applicable to such claims to set aside on the basis of fraud, which may be summarised as follows:
(a)The fraud must be particularised and established by strict proof;
(b)It must be shown “that there has been a new discovery of something material,” fresh facts that by themselves or in combination with previously known facts provide a reason to set aside;
(c)Such new facts go beyond the mere raising of a suspicion, being so material as to render it probable that the action will succeed;
(d)While perjury may justify the setting aside of a judgment, it is exceptional for mere perjury to be enough;
(e)The successful party must be shown to be responsible for the fraud;
(f)The burden of establishing each matter rests upon the party seeking to set aside the judgment;
[27] (1986) 6 NSWLR 534.
In that case particular emphasis was given to the requirement that the facts founding the application be “fresh” or “newly discovered.”[28] It was emphatically stated that, in reliance upon the High Court decisions in Cabassi and McDonald the assertion of fraud cannot be a challenge to “a matter canvassed in that trial” but must be “based upon something newly discovered.”[29]
[28] Wentworth at p.540.
[29] Wentworth at p.541.
Mr SCVG contended that any fraud was sufficient to justify setting aside, and that once fraud taints a trial that the burden moves to the other party to show why the judgment should not be set aside. Insofar as he asserted that an equitable fraud devoid of intent was sufficient to do so, Clone says otherwise. Insofar as he asserted that the mere proof of a fraud is sufficient to set aside, neither Wentworth nor, as relied upon by Mr SCVG, the judgment of Debelle AJ in the Clone proceedings before the Supreme Court of South Australia (proceedings the subject of successful appeal before the High Court), support such a notion.
In Wentworth Kirby P identified the requirement to assess the materiality of the fraud to the obtaining of the judgment. Wentworth casts the burden of establishing materiality upon the party seeking the relief and so, contrary to the submission advanced by Mr SCVG, the burden should not be considered to move once any fraud has been established. The reasoning expressed by Debelle J as to the justification for such an approach being grounded in the principles of finality in litigation provides an attractive explanation for such an approach.
Summary of principle
The power, exercisable at first instance, requires that a material fraud, being an intentional contrivance to deceive the court and parties, be established by the party seeking the setting aside of the judgement. Such a fraud is not provable by a relitigation of the case previously run between the parties, but requires cogent fresh or newly discovered evidence to be led to establish the fraud as material to the original judgment such as to justify the setting aside of the judgment despite considerations as to the importance of finality in litigation.
The evidence
In relation to the Justice Cronin matter, Judge Scarlett matter and the CSA matter, Mr SCVG relied upon a common underlying set of factual contentions. Other considerations featured in the email fraud and will be dealt with under that part of the judgment.
The first of the contentions was whether, contrary to her representations, Ms KLD’s interests in various family companies were of more than nil or nominal value, and whether or not Ms KLD believed that to be the case.
The second issue was whether, contrary to her representations, there was no debt owing to Ms KLD’s mother for monies paid in respect of Ms KLD’s legal fees, and whether Ms KLD and her mother believed that to be the situation in respect of those monies.
The extent to which these factual contentions have application in relation to the grounds will be examined later in reference to the grounds. It is convenient at this stage to set out how Mr SCVG seeks to make good these factual contentions given the fundamental role he assigned to them in the proceedings, and the manner in which they were answered by the respondent.
The first contention
The first contention relied upon it being established firstly that Ms KLD’s interests in the various family related entities was more than nil or nominal, and that Ms KLD knew this to be so when relying on various financial statements (see for example [32] Cronin J pleadings). To the extent that the financial statements were identified they were a Financial Statement filed in the Family Court of Australia, as it was then known, for the proceedings before Cronin J on 16 March 2015,[30] and a Financial Statement tendered in the SSAT proceedings and signed by Ms KLD on 12 December 2012.[31]
[30] Exhibit E6, p.12.
[31] Exhibit E6, p.3.
Those various entities, each held largely if not solely by Ms KLD and her family, were:
(a)K Pty Ltd;
(b)N Pty Ltd;
(c)L Pty Ltd;
It should be noted that complaint is not made that Ms KLD failed to identify that she held interests (other than those where she as the trustee held a bare legal interest). Nor is it contended that Ms KLD failed to disclose income received from any of the entities, nor that she failed to disclose distributions made to her. The complaint is as to an under representation of value of the interests held.
In advance of the trial of these matters the respondent conceded that the individual entities themselves were not of nil or nominal value. However, there was no concession that Ms KLD’s interests were other than of nil or nominal value for the reasons set out below. There was also no concession that Ms KLD considered that the interests that she held were other than of nil or nominal value.
As to the nature of the interests held by Ms KLD, Ms KLD conceded that at the time of signing the financial statement as used before Cronin J that:
(a)K Pty Ltd - Ms KLD held four shares in K Pty Ltd (AB Pty Ltd) with Mr Draper and Ms Draper. Ms KLD recorded this as a thirty three percent interest in her financial statement. K Pty Ltd is the corporate trustee of the M Settlement, a discretionary trust of which Ms KLD was a beneficiary. It is also an entity that produced income in its own right that could be distributed by dividend. Ms KLD explained that she recorded this interest as having a nil or nominal value on the basis that she was unable to deal with the joint shareholding independently of either Mr Draper or Ms Draper, and so understood the interest to be of nil or nominal value.
(b)N Pty Ltd- Ms KLD held 2765 of a total of 17,000 shares in N Pty Ltd, a rural business. Again she explained that she described this as a nil or nominal value holding on the basis that she could not deal with it absent approval from the director, Mr Draper;
(c)L Pty Ltd - Ms KLD held 198 of a total of 990 ordinary shares in L Pty Ltd (Ms RR owning 1000 preference shares). L Pty Ltd in turn owns various properties. Ms KLD explained that she described her interests as of nil or nominal value as she could not deal with her interest without the approval of Mr Draper or Ms RR.
(d)T Trust - Ms KLD is a beneficiary of the T Trust, as well as being a trustee and principal of that trust. She explained that she did not record the ownership of shares in L Pty Ltd as they were held on trust.
Ms KLD’s testimony, which was unable to be tested as Ms KLD was deceased at the time of the hearing, was that the financial statements that recorded the values as nil or nominal “reflected my understanding of my financial position as at their date,” and were “as I saw things at that time.”
Mr SCVG challenged the notions that the interests were of nil or nominal value, and further that Ms KLD thought this to be the case.
Mr SCVG sought to undermine reliance upon these assertions, criticising Ms KLD’s affidavit as having been written by a lawyer. While it had been conceded that counsel drafted the affidavit, there was no testing of whether that meant any more than that instructions had been taken from Ms KLD to enable the drafting to take place.
Mr SCVG further described that the payment to Ms KLD of dividends and distributions constituted “a large amount of income” that was effectively tax sheltered, reducing the tax paid by Ms KLD. This was argued to support the conclusions, not only that the value of Ms KLD’s interests in the companies was neither nil nor nominal, but also that Ms KLD understood that she was obtaining substantial benefits from the family companies.
Ms KLD’s counter to this proposition was that she could not control the payments from the various entities as they were subject to the approval of others, in particular Ms RR. As noted above there is no criticism that Ms KLD failed to disclose such payments being received.
Mr SCVG noted that over a period of some six years the approval of Ms RR was obtained as various payments were made. Further, he asserted, the nature of the relationship between Ms KLD and Ms RR was such as to mean that there would be no refusal to make distributions to Ms KLD. Mr SCVG further contended that, to the extent that it was required, Ms Draper would also have gone along with whatever Ms KLD wanted.
Mr SCVG further argued that evidence from Ms Draper that particular properties in L Pty Ltd would ultimately go to Ms KLD and her children was suggestive that the properties were of “very high value” and that such was known by Ms KLD, not least from conversations with Ms Draper.
However, intrinsic to this submission is the acknowledgement that the properties held by L Pty Ltd both were not, and are not as yet, in the hands of Ms KLD. Nor, now, can they ever be. They do not constitute property actually held by Ms KLD, and are of interest only insofar as they speak to the value of L Pty Ltd and Ms KLD’s understanding of such.
Even if it was to be taken that the underlying entities, by virtue of their holdings, have considerable value, Ms KLD asserts that she was not free to deal with her holdings without the agreement of others. This contention is not the subject of challenge, although it was asserted that Ms KLD would have received agreement had she asked for it.
The value of Ms KLD’s interests, and whether the value exceeds her nil or nominal value description is a vexed issue. As noted above this is not a case of a failure to disclose the interests held, but a challenge to the value assigned to them by Ms KLD. Her capacity to dispose of or realise her interests, or even to receive income from them was contingent upon others. This contingency is a matter that qualifies the value of the interests, although the extent of that qualification or limitation is unclear. Whether it ultimately limits the value to the extent that it meets the description of nil or nominal is particularly unclear.
It is however, a matter in relation to which the burden lies upon Mr SCVG, rather than Ms KLD or the respondent. Whilst Mr SCVG has raised questions about Ms KLD’s characterisation, he has fallen short of proof that the characterisations are wrong.
More clearly, Mr SCVG has failed to establish that Ms KLD knew that her characterisation of nil or nominal was wrong.
The enmeshing of Ms KLD’s interests with other family members, and her perceived inability to deal with the interests without the acquiescence of others provide reasonable grounds for her to consider that the interest lacked value. Even if Ms KLD was wrong to conclude in this manner, her explanation is such that a further conclusion that she also knew this to be wrong should not be reached.
The second issue
The second issue relates to statements made by Ms KLD that she had a liability to her mother in respect of payments made for legal fees.
In her Financial Statement provided to Cronin J, executed 16 March 2015 Ms KLD recorded “$650,000+” in loans owed to Ms RR described as “legal costs over 10 years.”[32]
[32] Exhibit E6, p.21.
In her Statement of Financial Circumstances as provided to the AAT, being a financial summary as at 30 June 2016, Ms KLD recorded a $750,000 liability to her mother for legal fees.
In contrast to these representations, a transcript of evidence given by Ms KLD to the SSAT, much earlier in 2012, revealed that her description at that stage was that monies paid for legal fees were, at that point in time, a gift:
Ms WW:...Are there any other benefits that you receive from your association with the [Drapers]?
Ms KLD:         Yes. They pay all my – my family pay my legal costs.
Ms WW:         And are you required to repay them or is that going to – how is that...
Ms KLD:         At the moment it’s a gift.
The extract of the transcript relied upon by Mr SCVG does not make clear what the extent of the monies provided for the legal expenses were at the time of this representation, meaning that, to the extent there were later representations that the monies for legal expenses were loans it was unclear to what extent they related to Ms KLD’s evidence to the SSAT. Further it may be observed that the answer was couched with uncertainty on the part of Ms KLD.
It should be noted that the SSAT proceedings were conducted well in advance of the proceedings before Cronin J, and even further in advance of the proceedings before the AAT.
It cannot be thought that Mr SCVG was unaware of the evidence given by Ms KLD in the proceedings before the SSAT when he was engaged in the proceedings before Cronin J or the AAT.
At paragraphs 45 to 47 of her affidavit filed 27 November 2018, Ms KLD described the position in respect of the legal fees as follows:
45.My legal fees have been paid for initially by my father and since his death by my mother. Over the years I have variously described these legal fees as a gift while my father was alive or as a loan subsequently. The expectation of myself, and my mother, as to whether they will be repaid by me has not remained constant.
46.My family is not happy with the amount of money I have spent on legal fees using my mother’s money. As I currently understand it, my family expect, one way or another, I will end up paying for my legal fees – or more correctly my daughters will – most likely through a reduction in any inheritance I or my estate may receive from my mother. But that is up to my mother – she can do what she wants with her property when she passes. I may receive no inheritance at all. I do not know.
47. My mother also paid for the house I live in. Again, I do not know if this will be regarded as a gift by her or will be considered in any inheritance I, or my estate, may receive. It is up to her.
Mr SCVG pointed to inconsistency in the descriptions made by Ms KLD as to the legal fees, an inconsistency acknowledged by Ms KLD. Ms RR gave oral evidence. She said that she was unable to recall the conversations that she had with Ms KLD about Ms RR’s payment of Ms KLD’s legal fees.
While Mr SCVG asserted that the potential reckoning of the legal fees against any future bequest to Ms KLD undermined their status as a debt, such remains unclear.
Mr SCVG contested whether Ms KLD’s description of the legal fee monies permitted the characterisation of the monies as a loan. He contended that the definition of liability is an “outflow of resources” which would not be the case if there was a mere reduction in the bequest that would be received by Ms KLD from Ms RR.
Mr SCVG sought to draw support from what he described as the Legislative Instruments Act (presumably a reference to the Legislation Act 2003 (Cth)) which he said gave the force of law to accounting standards per the Accounting Standards Board, [33] which describe:
A liability is a present obligation arising from past events, the settlement of which is expected to result in an outflow from the entity of resources embodying economic benefits.
[33] Australian Accounting Standards Board (AASB 137), Provisions, Contingent Liabilities and Contingent Assets, 27 July 2014, page 13.
Mr SCVG’s calling in aid of the Accounting Standards as binding either the court or Ms KLD is misplaced. They have no role to play in the Financial Statements prepared by Ms KLD for either the AAT or for the proceedings before Cronin J.
However, the various descriptions made by Ms KLD cast doubt on the status of the monies provided by her family in relation to legal expenses. There is variability as to whether the funds, or a part of them, were a gift or a loan, reflective perhaps on limitations in Ms KLD’s own understanding.
While it may be accepted that there has been inconsistency in the manner in which Ms KLD has described the loans, Ms KLD’s evidence is that this reflects inconsistency in her understanding of the provision of the monies. It was incumbent upon Mr SCVG to demonstrate that Ms KLD’s description was knowingly false, as opposed to a mere misapprehension on her part. The inconsistencies do not speak with a single voice as to knowing deception, being equally understandable as confusion or misapprehension on the part of Ms KLD, particularly in the context of the monies being provided by family members.
It was incumbent upon Mr SCVG to prove that the legal fees were not loans as asserted by Ms KLD, and that Ms KLD knew this to be the case. The ultimate nature of the monies that were paid remains unclear. Were the burden on Ms KLD to demonstrate that the monies were loans, she may have struggled. However, the burden was upon Mr SCVG to demonstrate something more than uncertainty and confusion, being proof that the monies were not loans but were gifts. He has not done so. Further, what has been demonstrated as to Ms KLD’s knowledge is confusion by Ms KLD, rather than deception.
The individual claims
Having identified the principles and the central factual contests, it is appropriate to now deal with each of the claims by Mr SCVG in turn.
The Cronin matter
The order under challenge as to costs made on 20 August 2015 is in the following terms:
1.That the father pay 50 per cent of the costs of the mother on an indemnity bases at the rate set out in the costs agreement under which the mother had contracted with her solicitors together with the expenses incurred including counsel’s fees for the period from 1 January 2015 until the conclusion of the preparation of the costs submissions on her behalf.
2.That the said costs referred to in paragraph 1 be by agreement and failing agreement as assessed by a registrar.
The complaint then made by Mr SCVG is that the judgment was procured by fraud, being by false representations by Ms KLD as to whether she owed money to her mother for legal costs, and as to the value of her interests in the family companies. Mr SCVG particularised those false representations as contained in Ms KLD’s affidavit and financial statements filed on 16 March 2015. Mr SCVG relied upon the requirement per s 117 of the Act to take into account financial circumstances in determining whether an order for costs ought to be made.
The financial circumstances of the parties were considered by Cronin J, in particular at [27]–[28] and [39]–[40].

Importantly, [39] is in the following terms:
39. In respect of the financial circumstances of the parties, I am not in a position to make a finding that [Ms KLD] has misled the Court or not comprehensively disclosed her financial position. Little of the evidence in the affidavit of [Mr SCVG] assists me. The financial statement relied upon by [Ms KLD] required her to subjectively set out as she saw things. The transcript earlier mentioned provided by [Mr SCVG] does no more than indicate what I consider to be an equivocal position about who was covering [Ms KLD’s] costs at that time. The important issue is the question of whether or not the parties are impecunious or in a strong financial position and what impact an order for costs would have on their financial circumstances. Whilst [Ms KLD] could clearly contribute towards her own costs, there is nothing in the material as I earlier indicated, to suggest that [Mr SCVG] could not contribute towards her costs either.
Careful attention should be paid to the terms of the judgment.
Two matters arise. Firstly the terms of the judgment render the asserted frauds as immaterial. Justice Cronin conceded uncertainty as to the mother’s financial position, save that he rejected the notion that the mother was impecunious, and was satisfied that Ms KLD had the capacity to meet her own legal costs. If the material advanced by Mr SCVG was to establish that the mother was in an even stronger financial position, such was not germane to the conclusion reached by Cronin J. He had already found in favour of Mr SCVG in respect of Ms KLD’s financial circumstances
Secondly the legal costs issue was one that Mr SCVG litigated before Cronin J. The very same argument of inconsistency with what had been said before the SSAT was raised before Cronin J. The contention and evidence are not fresh and it is an attempt to relitigate that which was litigated at first instance. This alone would be sufficient to defeat Mr SCVG’s application.
These matters mean that it is not necessary to descend into a determination of whether Ms KLD engaged in “a meditated and intentional contrivance” or rather, as considered by Cronin J in relation to her legal fees, there was merely an equivocal position as to who bore responsibility for her legal fees. Similarly it is not necessary to determine whether Ms KLD’s representation as to the value of her holdings in the family related companies were of nil or nominal value was “a meditated and intentional contrivance”, or accurate, or merely an error on her part.
However, given the factual findings set out above, Mr SCVG’s case fails on either count. Fraud is not established in the necessary sense. The allegation of fraud must establish both that what was contained in the financial statement of 16 March 2015 was untrue and was known to be, followed by which materiality must also be demonstrated.
Even if Mr SCVG had been successful in relation to the facts, he falls short on the issue of materiality as the judgment reflects no reliance upon the notion that the family companies were of nil value to Ms KLD, and no reliance upon the legal fees being a loan rather than a gift.
Conclusion
The application to set aside the costs order made by Cronin J fails. Even if Mr SCVG’s case is taken at its highest in respect of Ms KLD knowingly making false representations as to the value of the companies in which she held an interest, or as to whether the payment of legal fees by her mother was a gift or a loan, neither was material to the determination made by Cronin J, he having found factually, in favour of Mr SCVG that Ms KLD had the capacity to meet her legal fees, and rather than being impecunious, was “in a strong financial position.”
Further, insofar as the application relied upon the issue of the payment of the legal fees by Ms KLD’s mother, this is a matter that is not fresh in the sense contemplated by Wentworth. The attempt to pursue this issue a second time constitutes an abuse of process.
The Scarlett matter
The nature of the jurisdiction exercised by Judge Scarlett
The impugned judgment concerned an appeal from a decision of the SSAT made in March 2013. The appeal was dealt with by judgment of Judge Scarlett delivered on 30 April 2015.
The pleadings assert that the SSAT required the parties to file financial statements with financial circumstances truthfully and fully disclosed. Mr SCVG asserted, initially in general terms, that Ms KLD had made misrepresentations as to her financial circumstances to various tribunals and courts (apparently via her financial statement and oral evidence before the SSAT) causing unfair, excessive child support obligations, and the dismissal of his appeals of that decision.
Mr SCVG contends that Ms KLD relied upon the purported misrepresentations before the SSAT again before Judge Scarlett to induce him to unjustly dismiss the appeal of the SSAT decision. Mr SCVG does not contend that the representations were made directly to Judge Scarlett.
Careful attention needs to be given to the nature of the proceedings before, and the decision made by Judge Scarlett.
The decision under appeal was as to whether in the special circumstances of the case a departure from the administrative formula for the determination of child support obligation could occur. Having determined that there were such circumstances, the SSAT then considered Ms KLD’s “earning capacity and financial resources, noting ([Mr SCVG’s]) “demand” that the Tribunal should investigate her income and her family company holdings.”
The Tribunal declined to compel Ms KLD to provide documents related to companies owned by her family, Mr SCVG telling the SSAT that he had no real evidence about Ms KLD’s resources, and that his contention was based upon speculation and forecasts.
The determination set Mr SCVG’s adjusted taxable income at $360,000 per annum for the period 15 July 2011 to 31 December 2014, and for the same period for Ms KLD at $130,000 per annum.
A part of the challenge before Judge Scarlett was as to the SSAT “failing to consider and make findings in relation to the Respondent’s income, property, financial resources and/or earning capacity.”
As noted by the respondent, the proceedings before Judge Scarlett were accepted at the time to be restricted to jurisdictional error or error of law. This explains why the judgment by Judge Scarlett does not disclose that any evidential material was provided to him by Ms KLD in relation to her financial circumstances.
It is thereby difficult to perceive any sense in which Ms KLD perpetrated a fraud based upon her financial circumstances upon the proceedings, as no representation was made to the court as to the financial circumstances of Ms KLD. It was not a matter that the court was concerned with in the proceedings before it, given the nature of those proceedings.
Insofar as the challenge to this decision is reliant upon purported misrepresentations made by Ms KLD to the SSAT the nature of the proceedings before Judge Scarlett do not render these as material in the proceedings before Judge Scarlett, which were proceedings concerned with error of law or jurisdictional error.
Accordingly, even if the underlying factual matters advanced by Mr SCVG had been determined in his favour, no fraud is established in the proceedings before Judge Scarlett, nor does any representation to the SSAT by Ms KLD appear as material to the dismissal of the appeal by Mr SCVG by Judge Scarlett.
Conclusion
The application to set aside the judgment of Judge Scarlett fails. There is no factual representation made by Ms KLD in the proceedings before Judge Scarlett. The proceedings before Judge Scarlett involved no consideration of the purportedly fraudulent representations. Accordingly, even if the factual findings had been favourable to Mr SCVG, the challenge lacked merit.
The CSA matter
Mr SCVG seeks, pursuant to Part 7 of the CSA Act that this court give leave for him to apply for the court to amend an administrative assessment of Child Support that was more than eighteen months old at the time of his application, being for the period of 15 July 2011 to 3 December 2015.
However, as submitted by the respondent, no application is available for a period earlier than seven years prior to the application being made for amendment. As the application was filed on 27 July 2018, no part of the administrative assessment prior to 27 July 2011 is amenable to the application. To the extent that the application seeks to leave to pursue an application to amend for the period between 15 July 2011 and 27 July 2011 it is incompetent.
While the respondent questioned the standing of Mr SCVG to bring the application pursuant to s 111 of the CSA Act on the basis that the application is restricted to a liable parent and that there is no ongoing liability for Mr SCVG where, as here, the contested liability is pursuant to an administrative assessment, the definition of liable parent captures a person “by whom child support is payable for the child under the administrative assessment.” The liability cast upon Mr SCVG by the administrative assessment is sufficient to give him standing to apply pursuant to s 111 of the CSA Act.
The relevant administrative assessment is not identified, nor is the material on which it was reliant. The respondent identifies however that the effect of the application is to seek to disturb the determination made by the SSAT on 7 March 2013, where it was determined that Mr SCVG’s adjusted taxable income would be set at $350,000 per annum, and Ms KLD’s at $130,000 for the period 15 July 2011 to 31 December 2014. This determination has been the subject of unsuccessful appeals to Judge Scarlett and then to the Full Court.
That leave is sought on the same factual basis as that relied upon by Mr SCVG to set aside the Justice Cronin and Judge Scarlett matters, being purportedly false representations made by Ms KLD that valued Ms KLD’s interests in the K Pty Ltd and N Pty Ltd companies at nil or nominal value, and that asserted a liability to her mother of $750,000. He asserts that this was done with the intent to cause him to be assessed unfairly with Child Support obligations.
As noted earlier, Mr SCVG has failed to make good on his claim of falsehood.
Further, the representation that is relied upon by Mr SCVG is particularised as having been made on 1 August 2016, a point in time after the period that he now seeks to amend.
The pleadings leave opaque the basis on which Mr SCVG asserts that the representation of 1 August 2016 is germane to the assessment for the period 15 July 2011 to 3 December 2015.
The pleadings are directed to a misrepresentation asserted to have occurred on 1 August 2016, coupled with an assertion that the relative financial circumstances had not changed since 15 July 2011.
It remains completely unclear how a purported misrepresentation in 2016 demonstrates that the administrative assessment made prior to the purported misrepresentation, and for the prior period was unjust or inequitable.
To the extent that Mr SCVG contends that a fraud requires that leave be granted, he has failed.
Conclusion
Mr SCVG has failed to demonstrate that the application he pursues has any merit. The absence of merit denies that this is an appropriate case for leave to be granted.
The email fraud
The general circumstances are set out above in the introduction.
Listed before the court on 14 September 2017 were three reviews of costs assessments made by Registrar Payget on 27 July 2017 and Registrar McNamara on 15 May 2017 and 25 June 2017, each instigated by Mr SCVG. The date for the hearing was set to meet Mr SCVG’s convenience after Mr SCVG had confirmed the date as appropriate for him to be able to attend in person.
Each were dismissed on Mr SCVG’s failure to attend the proceedings on 14 September 2017.
Prior to the scheduled hearing of the reviews Mr SCVG sent a series of emails to the solicitor for the respondent, and purportedly to the City VV Registry of the Court. However, he had misidentified the Registry in the email address and accordingly the correspondence was never received by the Registry.
In particular, Mr SCVG describes that he thought that on 11 September 2017 he had filed by email in the City VV Registry an application to adjourn the proceedings listed for 14 September 2017.
By his pleadings Mr SCVG asserts that his partner, who was to drive him to City VV for the court proceedings, had fallen ill and was unable to drive. In his oral evidence he accepted that at that time he was not impecunious, and that there were airlines operating between Sydney, where he lived, and City VV, where the proceedings were listed. His identified impediment to using such an option was that he did not want to fly to City VV without his partner. That is, it was expressed as a question of mere preference.
Mr SCVG received no response from the Registry to his email. The lack of response from the Registry was in contrast to Mr SCVG’s previous dealings with the Registry where confirmation had been provided to him of receipt of such correspondence. He accepted that by 13 September 2017 he understood that no adjournment had yet been granted. He understood that he was still required to attend court on 14 September 2017.
Mr SCVG describes that he sent a further four emails on 13 September 2017 again, he thought, to the City VV Registry, seeking confirmation of the filing of the application purportedly sent on 11 September 2017, and seeking to appear by telephone and various other matters. Again, Mr SCVG had mis-addressed the emails, and he received no response from the Registry.
Mr SCVG describes that he also emailed the request to appear by telephone to the solicitor for Ms KLD on 13 September 2017. The covering email to the solicitor made reference to his application to adjourn of 11 September 2017.
Ms KLD’s solicitor explained that he did not reply to the requests as they were not made in accordance with the Rules, and he held no instructions to consent to them. Ms KLD’s solicitor explained that he did not notice that the emails contained the wrong address for the Registry.
Mr SCVG only later discovered that the reason for a lack of response from the Registry was that he had failed to send the emails to the City VV Registry, having mis-addressed them.
At the time that the matter was listed to be heard, at 10.00 am on 14 September 2017, Mr SCVG was aware that he had neither been granted an adjournment nor permission to attend by electronic means.
The matter was called at 10.00 am, with no appearance by Mr SCVG. Enquiries were made with the Registry as to whether Mr SCVG had made contact with the Registry, and the matter was called again at 10.15 am with no appearance from the applicant. The Court advised that:
The matter was listed today specifically to accommodate [Mr SCVG] as he said that this was an occasion on which his partner was able to transport him to City VV[City VV]. The matter was listed for 10 am. He has been called. I stood the matter down till 10.15. He has been called again. We’ve made inquiries with the registry and there has been no contact that we’re aware of with the registry. What is it that you seek to do, Mr [XX] (counsel for [Ms KLD])?
(Transcript of 14 September 2017, p.2 lines 28–33)
Counsel for Ms KLD sought that the matter proceed on the basis that Mr SCVG’s application should be taken as withdrawn, apologising for not having prepared more fulsome submissions for dealing with the matter on the non-appearance of Mr SCVG, explaining as follows:
…it wasn’t anticipated that [Mr SCVG] would not be here today. He made specific application to appear today. It is not something which we envisaged would occur.
(Transcript of 14 September 2017, p.3 lines 15–17)
On the current application to set aside Ms KLD’s solicitor further explained that there was no reason for him to consider that the Court was unaware of the application by Mr SCVG that he had been forwarded by email. He said that he put the matter out of his mind, expecting that the court would have already dealt with the application.
Mr SCVG challenged this evidence, asserting that the reference in the transcript to the Registry having reported no contact with Mr SCVG should have drawn the solicitor’s attention to the prior correspondence with Mr SCVG, and to a conclusion that the email had not made it through to the Registry. The solicitor explained that he considered that the query from the court was directed to whether there had been contact with Mr SCVG that morning.
Mr SCVG subsequently sought to set aside the judgment dismissing his applications for review, on the basis that the matters were determined in his absence. One of the factual matters that he relied upon (as shown in Exhibit E3, being the affidavit of Mr SCVG filed 16 October 2017) was, as here:
the failure by the respondent’s solicitor Mr Macphillamy to inform the court that he had been served by email on 13 September 2017 with my request seeking his consent to attendance by telephone misled the court by omission, as demonstrated in Justice Gill’s judgement at paragraph 5: “No Communication has apparently been received by him to justify why it is that he is not present today”. Had he done so, the Court could have telephone me immediately.
That is, Mr SCVG asserted to the solicitor that he had “deliberately remained silent to mislead the court” in failing to direct the court’s attention to Mr SCVG’s previous correspondence to him.
Mr SCVG was unsuccessful in this attempt to set aside the judgment on the basis that it was made in his absence.
As identified by his pleadings, the current application by Mr SCVG is reliant upon the propositions that:
a.Mr Macphillamy was alerted to the fact that the court had not received my application for adjournment nor request to attend by telephone when Justice Gill told the court after the first 15 minute adjournment that: “We’ve made enquiries with the registry and there has been no contact that we’re aware of with the registry”.
b.Contrary to his evidence in his affidavit of 30 November 2017 (see 34 below), Mr Macphillamy could not have assumed, after the above statement by Justice Gill of there being no contact with the registry, that my application for adjournment or request to attend by telephone had been rejected by the court.
c.Consequentially Gill J dismissed my applications for non-attendance and awarded costs against me, relying on the knowingly false representations made on behalf of [Ms KLD].
d.Mr Macphillamy gave implausible explanations for his failure to advise the Court of my request to attend by telephone and previous application for an adjournment in his Affidavit sworn 30 November 2017.
It should be noted that Mr SCVG does not plead that the solicitor actually received the application to adjourn. At best the solicitor was aware that Mr SCVG referred to such an application in his email providing, and seeking consent to, his application to appear by electronic means.
The essential element of the pleadings, however, is that there was a knowingly false representation made on behalf of Ms KLD.
There is good reason to consider that the failure of Mr SCVG to appear, coupled with the court’s representation that there had been no communication by him with the Registry that the court was aware of, should have directed the solicitor’s mind to, at least, the application to appear by electronic means. That application rendered improbable the proposition advanced by counsel for Ms KLD that the non-appearance was not envisaged, or not anticipated. The email received on 13 September 2022 was reason to envisage such an eventuality.
It was apparent that the court was unaware of the attempt to contact the court by Mr SCVG, whilst the solicitor was aware of such.
The extent of the obligation imposed upon the solicitor to advise the court of Mr SCVG’s contact with him must be answered in the context of a solicitor’s paramount duty to the court and the administration of justice. That duty required, in the particular circumstances where the court had asserted no knowledge of contact from Mr SCVG, and where the court was being asked to act on the basis of the non-appearance of Mr SCVG, the solicitor to advise of the receipt of the application to appear by telephone that he had received the previous day. The solicitor has explained why that did not happen. While that explanation does not detract from the obligation to notify the court of the contact from Mr SCVG, it is sufficient to undermine a conclusion that the solicitor’s failure was a deliberate failure.
Consideration

However, the failure to advise the court of the correspondence from Mr SCVG does not, without more, answer the setting aside issue pursued by Mr SCVG.
That claim is reliant on the proposition that a relevant fraud was perpetrated by the solicitor. The failure to advise of the correspondence received by the lawyer does not go so far.
Firstly, even if such was to be characterised as a fraud, or a conscious default on the part of the solicitor, it has not been sheeted home to Ms KLD as a meditated and intentional contrivance by Ms KLD in the terms of Clone. Despite Ms KLD being bound by the conduct of her solicitor, the conduct was not demonstrated to be at her instigation, nor was it demonstrated to be a part of an effort to effect a meditated and intentional contrivance upon the court by Ms KLD.
Secondly, even if the failure by the solicitor was to be characterised as malpractice, in Clone it was observed that the capacity to set aside for fraud was “never suggested to extend to malpractice not amounting to fraud in the course of proceedings.”[34]
[34] Clone at [54].
Thirdly, as seen in the refusal of the court to set aside the judgments on Mr SCVG’s previous application to do so, the underlying issue is that Mr SCVG chose, contrary to directions, not to attend to conduct the proceedings that had been set down to meet his convenience. By the time of the dismissal Mr SCVG was acutely aware that he had neither secured an adjournment, nor had he secured permission to appear by telephone. His evidence was that he chose, as a matter of preference, to not attend, despite having secured neither dispensation. The dismissal of Mr SCVG’s application was caused by the non-attendance of Mr SCVG. That non-attendance, later seen to be in the absence of adequate explanation, formed the material basis for the dismissal of the reviews.
That is, the solicitor’s failure has not been demonstrated to have been material to the outcome. This aspect is further emphasised by the next point.
Fourthly, the previous attempt to set aside, relied upon the same factual premise of the solicitor’s failure to advise. That attempt was unsuccessful, predominantly on the basis that Mr SCVG’s failure to attend was not sufficiently justified.
It has not been established that the conduct of the solicitor constitutes a relevant fraud, nor that it was material to the outcome. These reasons are sufficient for the dismissal of the application to set aside.
They are, however, further bolstered by another argument raised by the respondent. The respondent complained that the repeated application to set aside amounted to an abuse of process and was vexatious.
The respondent relied upon the statement of Brereton J in Paris King Investments Pty Ltd & 1 Ors v Michael Norman Rayhill & 2 Ors,[35] as follows (at [14]):
14. In my opinion, as outlined in Harrison Partners Construction Pty Ltd v Jevena Pty Ltd [2005] NSWSC 1225, [16]-[17], acknowledging that it is impossible to state a principle capable of universal application, nonetheless the general rule is that interlocutory relief is not to be reconsidered if all that is involved is a review on the same facts as prevailed when it was originally granted or declined or on facts which ought then reasonably have been in contemplation, but that if new facts have emerged which may affect the arguability of the case for final relief or the balance of convenience, then the grant of interlocutory relief may be reconsidered. If it were not so, it would be open to a defendant to make repeated applications for variation of an interlocutory injunction, requiring consideration of the matter de novo, for no stronger reason than dissatisfaction with the previous decision [Harrison Partners Construction Pty Ltd v Jevena Pty Ltd, [13]].
[35] [2006] NSWSC 578.
Here the applicant has previously unsuccessfully sought to have the judgments the subject of this application set aside on the basis that they were made in his absence. He asserted that on making such application he was unaware that he could have sought the setting aside on the basis of fraud, and that his subsequent understanding of that, coupled with his access to the transcript and reflection on the emails sent had founded this application.
It should however be observed that the previous application had sought to impugn the solicitor in the same manner for failing to draw the email correspondence to the court’s attention.
That is, although this application is made reliant upon different principles to the previous application to set aside, it is reliant upon the same facts. No new fact has been identified, and no fresh or further matter discovered. The case is brought merely on an argument reliant upon a different legal principle to that first argued, and constitutes sequential challenges to the same determination on the same factual basis.
On this basis this application should also be considered to be an abuse of process.
On either basis the application to set aside is to be refused.
Conclusion
Mr SCVG has failed in relation to each of the four applications for relief.
Directions will be given on the delivery of judgment to deal with the outstanding issues of costs and of whether Mr SCVG should be the subject of an order pursuant to s 102QB of the Act.

I certify that the preceding one hundred and sixty-two (162) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill.
Associate:
Dated:       26 October 2022
Annexure A
Cronin J Matter Statement of Claim 15 October 2018
Relief Claimed
1. Set aside, pursuant to r 17. 02 of the Family Law Rules 2004, the costs order made by Justice Cronin on 20 August 2015 on the basis that it was procured by fraud.

2. Costs
31. It was a requirement of the Court that the parties in the cost proceedings before Cronin J file a Financial Statement in which their financial circumstances were truthfully and fully disclosed.
32. In breach of that requirement Ms KLD perpetrated a third fraud on the Court by making another gross misrepresentation of her financial circumstances, with the intent of obtaining an onerous indemnity cost order against me.

Particulars
(a)          Ms KLD filed a Financial Statement and Affidavit on 16 March 2015 stating her shareholdings in L Pty Ltd, K Pty Ltd and N Pty Ltd to have a nil or nominal current value and that she had a liability owing to her mother of $650,000 for legal costs paid.
(b)          Ms KLD knew that her shareholdings in L Pty Ltd, K Pty Ltd and N Pty Ltd had a very substantial current value, exceeding millions of dollars, and that she had no legally enforceable liability to her mother for $650,000 of legal costs.
(c)          Ms KLD gave sworn evidence to the SSAT in the 2013 hearing that her mother paid all her legal costs as a "gift" to her.
(d)          Ms KLD together with her brother and sister at 16 March 2015 (and since 3 October 2006) held all 4 of the available ordinary shares in K Pty Ltd, which for 2015/16 had an income of approximately $6,500 and expenditure of approximately $5,500, along with assets of $970,000 and liabilities of $600,000 at 30 June 2016. Prior to 3 October 2006 Ms KLD owned 3 of the 4 ordinary shares of K Pty Ltd.
(e)          K Pty Ltd at 16 March 2015 owned the [property] at Suburb AA where 200 acres [were managed] and after the 2002 acquisition the second "pivot" was installed thereby doubling the [acreage]. This property's value continues to increase materially […].
(f)           K Pty Ltd was in 2015/16 the trustee of the M Settlement discretionary trust in which Ms KLD was a beneficiary and which held 100% of the 1 O ordinary shares in J Pty Ltd since 27 August 2004.
(g)          The M Settlement trust disclosed for 2015/16 a net income of $1.6 million and $226,000 of carried forward losses, and a distribution to Ms KLD of $25,000.
(h)          Ms KLD is a director and company secretary of K Pty Ltd (since 26 June 2002) and a director of J Pty Ltd (since 20 June 2003).
(i)           J Pty Ltd had for 2015/16 total income of approximately $5 million, expenditure of $3 million, taxable income of $2 million, and tax of $600,000, assets of $3.6 million, liabilities of $396,000 and shareholders funds of $194,000.
(j)           Ms KLD held at 16 March 2015, 660 (67%) of the 990 ordinary shares of L Pty Ltd, being 198 shares beneficially and 462 shares as trustee for the T Trust, of which she was also a beneficiary.
(k)          L Pty Ltd at 16 March 2015 owned the livestock properties at V Street, W Town NSW (which also has extensive [accommodation] facilities) and X Street, S Town NSW (where Ms KLD has resided since 2007 in a 5 bedroom new house built by her family at a cost of $850,000) and the industrial property at Y Street, Z Town NSW, and had for 2015/16, taxable income $90,000, tax of $25,000, assets of $5. 7 million and a liability of $700,000.
(l)           Ms KLD knew that her shareholdings in L Pty Ltd had a current value materially in excess of her shareholding's percentage of the shareholders funds of L Pty Ltd as shown in the company's balance sheet because the balance sheet did not include the historical or current value of the extensive [livestock] properties acquired for free in a crown land grant many decades earlier.
(m) At 16 March 2015 (and since 17 April 2012) Ms KLD held 2,765 of the 17,000 ordinary shares in N Pty Ltd and the M Settlement trust (since 26 July 2012) held 6725 ordinary shares in N Pty Ltd. N Pty Ltd for 2015/16 had a profit of $200,000, tax liability of $70,000, assets of $4.7 million (at historical cost) and liabilities of $1.7 million.
(n)          Ms KLD knew at 15 March 2015 that N Pty Ltd had for decades owned, and operated from, the property at NN Street, S Town NSW, which continues to increase in value due to its location in central S Town.
(o)          Ms KLD relied on her Financial Statement and Affidavit filed 16 March 2015 in her written submissions to Justice Cronin filed on 16 March 2015.

35. As a result, Justice Cronin at the time of making his indemnity cost order had been deceived by Ms KLD into having a grossly false understanding of Ms KLD's business activities, the relative financial circumstances of the parties and His Honour regarded those financial circumstances to be relevant pursuant to s117 of the Family Law Act.

Particulars
Justice Cronin's judgements of 27 February 2015 and 20 August 2015.
36.As a result, Justice Cronin's cost order against me was more onerous than it otherwise would have been.
37. There have been no reductions or adverse changes to Ms KLD's shareholdings in the K Pty Ltd and N Pty Ltd businesses since she acquired her shareholdings in L Pty Ltd (in 2000), K Pty Ltd (in 2000) and N Pty Ltd (in 2003), and the changes and growth of the K Group business since the Suburb AA acquisition in 2002 and of the N Pty Ltd business since 2000 have increased the value of Ms KLD's shareholdings in those companies.

Particulars
(a)          The acreage under cultivation at Suburb AA has been doubled since acquisition of that property.
(b)          The value of the properties owned by the K Group and N Group companies has increased substantially since 2000.

38. The value of Ms KLD's shareholdings in L Pty Ltd, K Pty Ltd and N Pty Ltd have remained stable or increased materially since 12 December 2012.

Particulars
Particulars 32 (b) to (o) and 37 (a) and (b) above
There have been no material adverse events affecting the K Group and N Group businesses since 2012.
Annexure B
Email Fraud Matter Statement of Claim filed 14 January 2019
Relief Claimed
1. The Orders of Justice Gill made 14 September 2017 be set aside pursuant to Rule 17.02 on the basis they were procured by fraud.

2.          Costs
18. As a result of my largely unsuccessful appeals various cost orders were made against me by the Family Court and High Court, most of which I paid, but some of which I challenged as described below.
19. My applications filed 31 May 2017, 14 August 2017 and 21 August 2017 are each concerned with the review of various costs assessment orders.
20.The application of 31 May 2017 concerned the reviews of costs assessment orders made by Registrar McNamara on 15 May 2017 for $7,300 and $5,500
21.The application of 14 August 2017 concerned the review of a costs assessment order made by Registrar McNamara on 25 July 2017 for $7,837.
22.The application of 21 August 2017 concerned the review of a costs assessment order made by Registrar Payget on 31 July 2017 for $68,747.
23.The reviews came to be set on 14 September 2017 by virtue of the review of Registrar Payget's orders being set down on that day to meet my convenience so that I would appear in person. The reviews of the other orders were listed for the same day by Senior Registrar Campbell on 11 September 2017.
24.Ms KLD's solicitor Mr Macphillamy has a practice of reading and responding to my emails very quickly, usually within 2.5 hours. For example, on 3 July 2017 at 12.58 pm I sent an email to Mr Macphiltamy seeking his client's consent to an adjournment of a settlement conference the following day and Mr Macphillamy replied to my email at 3.27pm that day.
25.Mr Macphillamy was twice informed on 5 September 2017 that I was using an incorrect email address in trying to communicate with the court.

Particulars
On 5 September 2017 I served Mr Macphillamy with my Affidavit filed 21 August 2017 by email and copied the court registry (but to the incorrect email address …@...). When I did not immediately receive the usual acknowledgement email from the court, I again sent an email of service to Mr Macphillamy again copying the court to the incorrect email address.
26. I did not appear on 14 September 2017, and the court received no communication as to my non-appearance due to my attempted communications seeking an adjournment and seeking to appear by telephone being accidentally sent to the incorrect email address.
27. In support of my application to set aside for non-attendance, I relied upon my affidavit filed 16 October 2017. In her response Ms KLD relied upon the affidavit of Christopher Macphillamy, her solicitor, of 30 November 2017.

28.        I made every attempt to appear at the review hearing, but was thwarted.
Particulars
(a)On 11 September 2017 I attempted to send an email to the City VV registry of the Family Court filing an Application seeking an adjournment of the hearing listed for 14 September 2017 plus two supporting Affidavits, but was unsuccessful because I used the incorrect email address. In the material in support of this application to redeem the hearing I indicated that I was now no longer able to have my partner drive me to City VV[City VV] as previously planned due to her illness. She provided an affidavit confirming her illness meaning that she would not be able to make the trip.
(b)At 10.55 am on 13 September 2017, I sent an email to the City VV registry to the incorrect email address following up my application for an adjournment and Affidavit per my email of 11 September 2017 seeking the outcome and advising if an adjournment is not granted I will be filing a request to attend by telephone that day.
(c)At 11.28 am on 13 September 2017 I sent an email to Ms KLD's solicitor Mr Macphillamy with an attached Request to Attend By Telephone document, requesting his client's consent to my attendance by telephone and referring to my previous application for an adjournment, and also to City VV registry for filing again to the incorrect email address.
(d)At 7.07 pm on 13 September 2017, having received no response to my emails referred to above from the City VV registry nor Mr Macphillamy, I again sent to the incorrect email address another email to the City VV registry asking the registrar to bring this email to the attention of Justice Gill prior to the hearing at 1 0 am the next day 14 September 2014 and referring to my emails of 11 and 13 September 2018.

29.Mr Macphillamy knew that I was very enthusiastic to appear in court either in person or by telephone (as requested in my 13 September email to him seeking consent) to litigate each of my applications for review of the cost orders, and that I would not give up in the litigation, because
(a)     I had strenuously opposed the transfer of the reviews to City VV by Registrar Campbell on 11 September 2017 and had filed applications to review and stay his decision to transfer,
(b)      In my 21 August Affidavit served on Mr Macphillamy on 5 September 2017 I had proved that there was a material error ($20,742, exceeding the total of the 3 other cost assessments) involved in the error on the part of Registrar Payget in her assessment pursuant to Cronin J's orders. That error had arisen because Registrar Payget had allowed 50% of solicitor's costs and 100% of counsel's costs, whereas Cronin J's orders provided for 50% of each as clearly stated at 54 of His Honour's reasons:
"Accordingly, it is just in my view to make an order that Mr SCVG pay 50 percent of the costs incurred by Ms KLD from the period from 1 January 2015 until the completion of the submissions for costs by her counsel and that those costs be determined on the basis of the rate Ms KLD was charged by her respective lawyers. There will be orders accordingly."
(c)    He had received my emails of 3 July and 11 and 13 September 2017 referred to above.

30.        Mr Macphillamy committed a fraud on the court in that:
(a)      He failed to tell the Court that I could not attend court on 14 September 2017 as advised to him in my emailed request to him for consent to attend by telephone and previously requested adjournment, despite Justice Gill repeatedly making enquiries as to the reason for my absence in Court on 14 September 2018, including adjourning the court twice for 15 minute periods to facilitate such enquiries, and
(b)       Instead, he instructed counsel Mr [Mr XX] to make the gross misrepresentation to the court: " ... it wasn't anticipated that Mr SCVG would not be here today ...... It is not something which we envisaged would occur". This representation that Mr Macphillamy instructed Mr [Mr XX] to make was knowingly false because by his own affidavit evidence ( see 34 below) Mr Macphillamy knew that I had requested an adjournment and to attend by telephone because I could not attend in person.
(c)       that misrepresentation was intended to induce Justice Gill to make orders dismissing my applications and awarding costs against me.

31. Mr Macphillamy was alerted to the fact that the court had not received my application for adjournment nor request to attend by telephone when Justice Gill told the court after the first 15 minute adjournment that: "We've made enquiries with the registry and there has been no contact that we're aware of with the registry".
32.Contrary to his evidence in his affidavit of 30 November 2017 (see 34 below), Mr Macphillamy could not have assumed, after the above statement by Justice Gill of there being no contact with the registry, that my application for adjournment or request to attend by telephone had been rejected by the court.
33. Consequentially Gill J dismissed my applications for non-attendance and awarded costs against me, relying on the knowingly false representations made on behalf of Ms KLD.
34. Mr Macphillamy gave implausible explanations for his failure to advise the Court of my request to attend by telephone and previous application for an adjournment in his Affidavit sworn 30 November 2017.

Particulars
In his Affidavit of 30 November 2017 Mr Macphillamy said, in substance,
(a)          that he did not properly read his email received from me at 11.28am on 13 September 2017, the day preceding the 14 September hearing, until after the hearing. This explanation is totally implausible in the light of his normal efficient response to my emails within 2.5 hours of receipt even in circumstances where he considered my request "does not set out any basis on which you are seeking an adjournment", and

(b) that, although he was copied into, and was aware of, my request to attend by telephone, he simply assumed when I failed to appear that my request had been rejected by the court. This explanation is also totally implausible because Justice Gill told the court there had been no contact by me with the registry, and none of the previous numerous requests by both parties to attend by telephone had ever been rejected by the court.

35. In summary, I sent a number of emails, purportedly to the City VV registry of the Family Court, and copied to Mr Macphillamy, seeking the adjournment of the listing on 14 September 2017, or in the event that the adjournment was not granted, to appear by telephone. This correspondence took place from 11 through to 13 September. None of that correspondence was received by the court as I had sent the emails to the wrong email address, and I had previously sent correspondence to the court via sometimes the correct and sometimes the incorrect email address, all copied to Mr Macphillamy.

Annexure C
Judge Scarlett Matter Statement of claim filed 18 June 2019
Relief Claimed
1. The orders of Judge Scarlett made 15 April 2015 are set aside
2. The first defendant pay the Applicant's costs incurred in the proceedings before Judge Scarlett and the subsequent appeal to the Full Court and special leave application to the High Court.
3. The first defendant pay the costs of the Child Support Registrar in all the proceedings.

4.          Costs
11. The SSAT required in our 2012 child support case that we file Financial Statements with our financial circumstances truthfully and fully disclosed.
12. Ms KLD commenced to grossly misrepresent her financial circumstances in proceedings before various tribunals and courts (from 2012 to 2017) with her 2012 Financial Statement filed in the SSAT and her oral evidence, with the intent of causing the CSR and the SSAT to assess me with unfair excessive child support obligations and of causing the courts to dismiss my appeals of the SSAT decision, and the SSAT, CSR and courts did so act relying on Ms KLD's misrepresentations, and the CSR undertook unjust enforcement actions against me including issuing a departure prohibition order.

Particulars
(a)          On 12 December 2012 Ms KLD filed in the SSAT her financial statement valuing her shareholdings in L Pty Ltd, K Pty Ltd and N Pty Ltd at nil or nominal value which values she knew were false. This act was a fraud on the SSA T and subsequently on the Federal Magistrates Court and the Full Court of the Family Court in the resulting appeals. Ms KLD made the gross misrepresentations with the intent of causing the SSAT to assess me with unfair increased child support. Subsequently Ms KLD relied upon her gross misrepresentations in the proceedings before Judge Scarlett with the intent of inducing His Honour to unjustly dismiss my appeal of the SSAT decision, which His Honour did do,
(c)          On 12 December 2012 Ms KLD knew that her shareholdings in L Pty Ltd, K Pty Ltd and N Pty Ltd had a very substantial current value, exceeding millions of dollars.
(d)          During the SSAT hearing Ms KLD gave further perjured evidence in support of her filed financial statement.

13.As a result of the fraud perpetrated by the gross misrepresentations in Ms KLD's Financial Statement of 12 December 2012 and her oral evidence the SSAT set my adjusted income at $360,000 and Ms KLD's at $130,000,and I was assessed with materially increased and unfair child support, penalties for non-payment and suffered damage by being prevented from attending overseas holidays for 5 years to date by a departure prohibition order.

Particulars
The SSAT decision made 7 March 2013
The Child Support Assessments issued from April 2013 onwards.
Departure Prohibition Order issued on 26 February 2014.
14.I appealed the SSAT decision to the Federal Circuit Court with Scarlett J dismissing my appeal and making a costs order against me on 30 April 2015. I appealed to the Full Court in EA75/2015.

Annexure D
Child Support Agency Departure Matter - Statement of Claim filed 14 January 2018
Relief Claimed
1. Leave is granted pursuant to s 111 of the Child Support (Assessment) Act 1989 for the court to make an order under s 118 of the Act in respect of a child support period more than 18 months earlier, being the period from 15 July 2011 to 3 December 2015.
2. That the decision of the AA T made 1 May 2018, that I pay an annual rate of child support of 20% of the maximum costs for the children in the Costs of the Children Table from 4 December 2015 onwards, be extended to also apply to the earlier child support period from 15 July 2011 to 3 December 2015, after adjusting the 20% annual rate of child support for the care percentages and cost percentages ranging from 24% to 37% as applied by the CSA prior to 15 February 2013.

3. Costs
4. Such further orders as the Court considers appropriate.

Particulars
(a) On 1 August 2016 Ms KLD filed her Statement of Financial Circumstances in which she again falsely valued her shareholdings in the K Group and N Group companies at nil or nominal current value and falsely stated she had a liability to her mother of $750,000, with the intent of causing the AAT and CSR to assess me with unfair excessive child support obligations.

43. I have filed an Application in SYC5956/2016 seeking that the AAT decision made 1 May 2018, after adjustment for my 24% to 37% care percentages prior to April 2013, be backdated to 15 July 2011 being the commencement of the period to which Ms KLD's first fraudulent Financial Statement filed in the SSAT applied, as there has been no material change in our relative financial circumstances since 15 July 2011. Particulars My Application filed 27 July 2018 seeks orders that:
(1) Leave is granted pursuant to s 111 of the Child Support (Assessment) Act 1989 for the court to make an order under s118 of the Act in respect of a child support period more than 18 months earlier, being the period from 15 July 2011 to 3 December 2015.
(2) That the decision of the AA T made 1 May 2018, that I pay an annual rate of child support of 20% of the maximum costs for the children in the Costs of the 20 Children Table from 4 December 2015 onwards, be extended to also apply to the earlier child support period from 15 July 2011 to 3 December 2015, after adjusting the 20% annual rate of child support for the care percentages and cost percentages ranging from 24% to 37% as applied by the CSA prior to 15 February 2013. 44. If my Application referred to in 31 above is successful, my unpaid child support liability claimed by Ms KLD of $44,000 would be reduced to nil and Ms KLD would be liable to pay me child support for the period from 15 July 2011 to 3 December 2015 at least approximately $15,000 (being average $4000 x 3.5 years -see (f) below).

Particulars
(a) Under the formula for calculation of child support in the Child Support Assessment Act and published by the CSA, your cost % is deducted from your income % to arrive at your child support %, ie the % of the children's cost that you should pay to the other parent.
(b)        Eg, if you have a 24% care of the children you are acknowledged as directly meeting 24% of the cost of the children, ie you have a 24% cost%.
(c)        For the period prior to 2 April 2013 the CSA acknowledged I had a care% and cost % of between 24% and 37% and assessed my child support accordingly.
(d)        As the AAT decided my child support% should be 20% for the period since 4 December 2015 when my care% and cost% have been nil, it follows the AAT has effectively determined my income % to be 20%.
(e)        It follows that for the period before 15 February 2013 when my care% and cost% was between 24% and 37%, my child support % should be between -4% (20% less 24%) and -17% (20% less 37%).
(f)       Historically, the CSA assessed Ms KLD's annual child support payable to me as:
- For period 15/7/11 to 31/7/11, $1214 based on incomes of $35,446 (me) and $75,059 (Ms KLD)
- For period 1/8/11 to 31/3/12, $3262 based on incomes of $23,331 (me) and $75,059 (Ms KLD)
- From 1/4/12 onwards, $4226 based on incomes 23,331 (me) and $88,301 (Ms KLD). (Average for period 7/11 to 12/15 approx $4000).

The CSA then made a decision on 11 /5/12 that my annual child support liability to Ms KLD would be:
- 1/1/11 - 14/7/11 $11,000
- 15/7 /11 - 30/6/13 $6,000

I appealed to the SSAT which made the decision on 7 March 2013 referred to in 8 above.

File number(s):	SYC 4380 of 2008 SYC 5956 of 2016
Judgment of:	GILL J
Date of judgment:	26 October 2022
Catchwords:	FAMILY LAW – ORIGINAL JURISDICTION – Where the Court has inherent jurisdiction to set aside its own judgment at first instance on the basis of fraud – Principles of finality – Where the applicant had burden to prove actual fraud – Where the fraud must be a meditated and intentional contrivance – Not established – Where the fraud must be material – Not established – Where the claim cannot be a relitigation of the case at first instance, but requires cogent fresh or newly discovered evidence – No fresh evidence – Where repeated challenges constitute an abuse of process.
Legislation:	Child Support (Assessment) Act 1989 (Cth) Part 7, ss 111, 118 Child Support (Registration and Collection Act) 1988 (Cth) s 110B Family Law Act 1975 (Cth) ss 102QB, 117 Legislation Act 2003 (Cth)
Cases cited:	Cabassi v Vila (1940) 64 CLR 130 Cameron v Cole (1944) 68 CLR 571 Charles Bright & Co Ltd v Sellar [1904] 1 KB 6 Clone Pty Ltd v Players Pty Ltd (In Liq)(Receivers and Managers Appointed) and Ors (2018) 264 CLR 165 Hip Foong Hong v Neotia & Co [1918] AC 888 Jonesco v Beard [1930] AC 298 McDonald v McDonald (1965) 113 CLR 529 Paris King Investments Pty Ltd & 1 Ors v Michael Norman Rayhill & 2 Ors [2006] NSWSC 578 Patch v Ward (1867) LR 3 Ch App 203 R v Forbes; ex parte Bevan (1972) 127 CLR 1 SCVG v Estate of KLD (Dec’d) (No 3) [2020] FamCA 176 SCVG & KLD [2018] FamCA 27 Taylor v Taylor (1979) 5 FamLR 289 Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Division:	Division 1 First Instance
Number of paragraphs:	162
Date of hearing:	8–10 February 2022
Place:	Canberra
Solicitor for the Applicant:	Litigant in person
Counsel for the Respondents:	Mr Cox, SC
Counsel for the Respondents:	Ms Seric
Solicitor for the Respondents:	Macphillamy’s

SYC 4380 of 2008 SYC 5956 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR SCVG Applicant
AND:	THE ESTATE OF KLD First Respondent CHILD SUPPORT REGISTRAR Second Respondent

order made by:	GILL J
DATE OF ORDER:	26 OCTOBER 2022