SCVG & KLD
[2017] FamCAFC 95
•24 May 2017
FAMILY COURT OF AUSTRALIA
| SCVG & KLD AND ANOR | [2017] FamCAFC 95 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – Application for leave to appeal against decision of a Federal Circuit Court judge affirming a decision of the Social Security Appeals Tribunal to amend the appellant’s adjusted taxable income for the purposes of a child support assessment – Proposed appeal discloses no error of law – The appellant had himself provided the evidence on which the Tribunal’s decision was based and the decision was not illogical, irrational or unreasonable – Procedural fairness does not extend to giving notice of a conclusion open on the known material – The Tribunal does not have a general obligation to make investigations on behalf of a party –Application for leave to appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where indemnity costs were awarded for 50 per cent of the respondent’s costs in parenting proceedings – An appellate court will not interfere with such an order unless the result is plainly unjust or the primary judge’s discretion was exercised on wrong principles – Failure to comply with rule 19.08(3) did not invalidate the costs order – No error established – Appeal dismissed. FAMILY LAW – APPEAL – Applications to adduce further evidence and to extend time in which to appeal – No merit in the applications – Applications all dismissed save for one that was discontinued after the hearing of the appeal. FAMILY LAW – APPEAL – COSTS – Appellant wholly unsuccessful – Appellant to pay the first and second respondent’s costs to be assessed, if not agreed. |
| Child Support (Assessment) Act 1989 (Cth) s 98E Child Support (Registration and Collection) Act 1989 (Cth) Part VIIA, ss 110B, 107A(1) Family Law Act 1975 (Cth) ss 117, 117(2A) Tribunals Amalgamation Act 2015 (Cth) |
| Browne v Green (2002) FLC 93-115 Carrigan & Fredericks (SSAT) Appeal [2011] FMCAfam 544 Child Support Registrar & Crabbe And Anor [2014] FamCAFC 10 COG15 & Child Support Registrar & COG and Anor [2016] FamCAFC 272 Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225 Harris & Harris (1991) FLC 92-254 In the marriage of I and I (No 2) (1995) FLC 92-625 Madin & Palis (Costs) [2016] FamCAFC 25 Medlow & Medlow (2016) FLC 93-692 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 P v Child Support Registrar (2014) 225 FCR 378 Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 Rutherford & Rutherford (1991) FLC 92-255 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 |
| APPELLANT: | Mr SCVG |
| FIRST RESPONDENT: | Ms KLD |
| SECOND RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 2044 | of | 2013 |
| SYC | 4380 | of | 2008 |
| APPEAL NUMBER: | EA | 75 | of | 2015 |
| EA | 156 | of | 2015 | |
| EA | 51 | of | 2016 |
| DATE DELIVERED: | 24 May 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Thackray ACJ, May & Ryan JJ |
| HEARING DATE: | 27 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 30 April 2015 20 August 2015 19 February 2016 |
| LOWER COURT MNC: | [2015] FCCA 1073 [2015] FamCA 687 [2016] FamCA 302 |
REPRESENTATION
| FOR THE APPELLANT: | Mr SCVG (in person) |
| COUNSEL FOR THE FIRST RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE FIRST RESPONDENT: | Macphillamy’s Solicitors |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr Kaplan |
| SOLICITOR FOR THE SECOND RESPONDENT: | Sparke Helmore Lawyers |
Orders
The application for leave to appeal in EA 75 of 2015 is dismissed.
The Applications in an Appeal filed on 18 August 2015, 22 February 2016, 7 April 2016, 14 April 2016 and 23 May 2016 are dismissed.
Appeal EA 156 of 2015 is dismissed.
The applicant/appellant pay the first and second respondent’s costs of and incidental to the said applications and appeal to be assessed, if not agreed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA75 of 2015, EA156 of 2015, EA51 of 2016
File Number: SYC2044 of 2013, SYC4380 of 2008
| Mr SCVG |
Appellant
And
| Ms KLD |
First Respondent
And
Child Support Registrar
Second Respondent
REASONS FOR JUDGMENT
THACKRAY ACJ & RYAN J
We have had the benefit of reading May J’s draft judgment, which sets out the relevant background. We agree with her Honour’s conclusions, but take a different approach to the two main issues, namely:
·the husband’s request for leave to appeal against Judge Scarlett’s dismissal of his appeal against the decision of the SSAT (“the Tribunal”); and
·the husband’s appeal against Cronin J’s order for him to pay 50 per cent of the wife’s costs of parenting proceedings, calculated on an indemnity basis.
The child support appeal (EA 75 OF 2015)
For the reasons explained by May J; the appeal from the Tribunal’s decision was confined to questions of law; the husband requires leave to appeal to this Court from the decision of Judge Scarlett; and the proceedings before us are competent notwithstanding the Tribunals Amalgamation Act 2015 (Cth).
We consider it unnecessary to again discuss the “test” to be applied in applications for leave to appeal. This was canvassed in the context of child support matters in Lindsey & Christie and Anor [2016] FamCAFC 132, and was touched on again recently in CSR & Vladimir and Anor [2017] FamCAFC 56. It is sufficient to say that regardless of which “test” is applied, leave will be refused if the proposed appeal lacks any merit, which is the position here.
The proposed grounds of appeal
By his Further Amended Notice of Appeal filed on 8 April 2016, the husband proposes to rely upon 20 grounds of appeal if leave to appeal is granted.
The grounds range well beyond the scope of the five grounds relied upon before the primary judge. While new issues can sometimes be raised in proceedings such as these (Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315), we are not persuaded that the husband should be permitted to argue matters not agitated below. For example, he ought not to be permitted to contend bias on the part of the Tribunal (Ground 16).
We propose to deal only with the complaints about the three issues identified by the husband in the court below, which his Honour summarised thus:
a)the determination by the Tribunal as to the [husband] having a taxable income of $360,000.00, which was an erroneous finding of fact;
b)the Tribunal failed to accord procedural fairness … in that it formed a view that [the husband] had seriously minimised his taxation liability;
c)the Tribunal did not take steps to compel [the wife] to provide financial information as she had provided very few documents…
The determination of the husband’s income
The husband argued before the primary judge that the Tribunal’s finding that he had an annual adjusted taxable income of $360,000 was “perverse and unreasonable” and that this “infected and ultimately vitiated the determination” and as such represented an error of law.[1]
[1]Reasons at [90].
The primary judge found that the complaints constituted “cavilling with the merits of the Tribunal’s findings”.[2] His Honour was not satisfied that the decision concerning the husband’s income “was unreasonable, let alone so unreasonable that no reasonable decision-maker could have reached it”.[3]
[2]At [91].
[3]At [92].
In submissions to us, the husband argued that the fact he had, for several years, been able to spend $5,000 a week was not probative evidence to show that he had an annual taxable income of $360,000.[4] The husband submitted that it was illogical to draw such an inference since the fact that someone spends money does not necessarily mean they have an income of an equivalent amount.
[4]After making allowance, as the Tribunal, did for a “30% taxation rate”.
The husband’s complaint stands to be considered in light of well-established principles concerning judicial review, which were elucidated by Jagot J in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 296 ALR 307 at 334–5.[5] In short, if there is some evidence which reasonably admits of different conclusions as to the existence of a fact, the finding of that fact or the failure to find that fact does not involve a question of law. Hence, where there is some probative evidence of a fact and some logical basis to support it, the finding of that fact will not constitute an error of law. However, there is a distinction between a finding not reasonably open on the evidence and a finding reached on other than logical grounds. The former involves a finding not supported by evidence and is always an error of law; the latter involves only faulty reasoning and is not generally characterised as an error of law.
[5]Her Honour’s exposition was approved by the Full Court of the Federal Court of Australia in P v Child Support Registrar (2014) 225 FCR 378.
In explaining these principles, Jagot J cited this proposition from the judgment of Crennan and Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [131]:
If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.
Similarly, the Full Court of the Federal Court said in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141 at [34]:
A party does not establish an error of law by showing that the decision‑maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355–6…
In citing these authorities, we do not suggest that the employment of illogical or irrational reasoning can never give rise to a question of law: Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. However, the husband’s description of the reasoning of the Tribunal as “illogical” is nothing more than what the authorities describe as an emphatic way of disagreeing with the finding. In our view, there was nothing illogical about the Tribunal being “satisfied that [the husband’s] income and financial resources exceed $360,000 gross per annum, on his own statement of expenditure”,[6] since the husband himself had provided the evidence that permitted that finding to be made.
[6]At [19], emphasis added.
The husband sought to argue before us that he was only able to sustain expenditure of more than $5,000 per week by borrowing. However, he did not take us to any argument to that effect in the proceedings below, or to any evidence to sustain the proposition. On the contrary, the husband informed the Tribunal that he had lived off his savings.[7]
[7]Transcript, 6 February 2013, p 19.
The husband argued that the Tribunal knew he had a $1.6 million mortgage, but he was vague when asked to identify when he had received the funds drawn down on the facility. He submitted that it was the duty of the Tribunal to establish the “jurisdictional fact” and that if the evidence was insufficient then the Tribunal had not discharged its duty. The proposition misapprehends the Tribunal’s role. It was the husband’s obligation, not the Tribunal’s, to advance the husband’s case. Had he wanted the Tribunal to take account of the mortgage as being relevant to his ability to spend more than $5,000 every week, it was for him to make that argument and to provide the evidence.
The husband further submitted that it was not open to the Tribunal to ignore the evidence he produced, or to refuse to “forensically examine” it merely because his affairs were “a bit complex”. But there was nothing to suggest that the husband’s evidence was “ignored”. Furthermore, when the Tribunal said that it did “not propose to analyse [the husband’s] financial situation forensically” that statement must be considered in the context in which it was made, which emerges from this paragraph of the ruling.
19.[The husband] claims that he now has a limited income and should be assessed on an adjusted taxable income of $1,033 for the 2011/2012 financial year. The Tribunal is satisfied that [the husband’s] income and financial resources exceed $360,000 gross per annum, on his own statement of expenditure. It is considerably more than this, however as he has distorted his financial position with his involvement with various companies, loans, losses and questionable deductions, the exact amount cannot be assessed with certainty. The Tribunal does not propose to analyse [the husband’s] financial situation forensically. It is clear he has arranged his taxation affairs to minimise his taxation obligations to the Commonwealth.
Read in context, the statement is entirely unobjectionable. Having determined on the basis of the husband’s own evidence that he had income and financial resources exceeding $360,000 per annum, the Tribunal stated that it was unable to determine how much more he had and did not need to subject his affairs to microscopic analysis, especially in light of the attempts the Tribunal considered he had made to minimise his taxation obligations.
For these reasons, we see no error in the complaint.
Failure to accord procedural fairness
Although the husband complains he was not afforded procedural fairness, the obligation on the Tribunal to provide such fairness did not extend to notice being given of a conclusion that was obviously open on the “known material”: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 at [9] per French CJ and Kiefel J.
The transcript shows that the Tribunal did not propose to accept the husband’s taxation returns at face value, and he was given the opportunity to explain them. Indeed, the doubt about the true financial position of the parties was the primary reason the matter was before the Tribunal. The Tribunal therefore did not need to give the husband advance notice of the adverse conclusions it drew about his portrayal of his financial circumstances.
Nothing advanced by the husband suggested that there was any defect in the way the primary judge dealt with this part of the complaint.
Failure to compel the wife to provide documents
The primary judge rejected the proposition that the Tribunal had some form of general obligation to enquire into the wife’s financial circumstances. His Honour correctly held, by reference to the relevant legislation and High Court authority, that it is “well established that there is no such obligation”.[8]
[8]At [108].
The Tribunal was not obliged to make investigations on behalf of the husband, and gave valid reasons why it would not do so in the present case. Even if the Tribunal had required the wife to provide the financial statements of entities in which the wife had an interest (as the husband asserted should have occurred), such statements would not have established the current value of those entities.
The husband acknowledged before us that the Tribunal was aware of the wife’s interest in the entities and that the Tribunal also knew what income they generated. The husband also acknowledged before the Tribunal that he had no real evidence about the wife’s financial resources and admitted that his views were “all based on speculation and forecasts”. In these circumstances, the Tribunal was entitled to refuse to embark on what the Presiding Member described as a “fishing expedition” and instead elected to focus on “each party’s cash flow for the purpose of income and financial resources”.
There is therefore no merit in the complaint.
The outcome of the child support appeal
There being no merit in any of the complaints, leave to appeal will be refused.
The Applications in an Appeal
We now turn to the husband’s six Applications in an Appeal.
Application filed 18 August 2015
This application seeks to introduce as further evidence in the appeal reports of the Commonwealth Ombudsman published in 2004 and 2010.[9] The objective was to demonstrate that the Child Support Registrar was improperly seeking “to screw the paying parents to the maximum extent it can” in accordance with a “budgetary directive from the executive arm of the government”.[10]
[9]It is unnecessary to discuss the circumstances in which further evidence can be introduced in proceedings restricted to questions of law, but see P v Child Support Registrar (2015) 324 ALR 109.
[10]Transcript, 27 May 2016, p 11–2.
The application must fail on at least three counts. First, we have refused leave to appeal and hence the question of allowing further evidence in the appeal does not arise. Secondly, the issue was not one that was agitated below and we have declined to allow the husband to expand on his complaints. Thirdly, the historical evidence relied upon could not even begin to establish the point the husband wishes to make, even if leave to appeal had been granted.
Application filed 22 February 2016
This application seeks to introduce as further evidence two recent child support assessments. The husband claims that these would show that the Tribunal’s decision relating to an earlier period “was way out of the ballpark”. However, the husband conceded that the assessments could not prove his argument “conclusively”, and he again faces the difficulty that leave has been refused.
This application should also be dismissed.
Application filed 7 April 2016
This application seeks an extension of time to appeal against orders made on 19 February 2016. It transpired that it was only Order 3 which is challenged (since Orders 1 and 2 had become otiose shortly after they were made).
Order 3 dismissed two applications the husband filed in 2015. We were not provided with these, but we understand they sought relief similar to that the husband sought in the event leave was granted to appeal out of time, namely:
That the Child Support Registrar is restrained from continuing any enforcement processes in respect of the Child Support arrears flowing from the period applicable to [the Tribunal] decision which is the subject of Appeal EA 75/2015, including garnisheeing money from the [husband] in any way whatsoever, the application of penalties to the [husband’s] child support account for unpaid amounts and the continuation of any Departure Prohibition Order.
Nothing put to us suggested that there would have been any merit in the husband’s application for an extension of time to appeal, but the issue is moot as leave to appeal against the decision of the Tribunal has been refused. The Child Support Registrar is now at liberty to take whatever proceedings the Registrar deems fit to enforce the husband’s obligation.
The application will therefore be dismissed.
Application filed 14 April 2016
By this application, the husband seeks to adduce further evidence in the appeal:
being all documents which taken as a whole are required to establish the [husband’s] actual level of income and financial resources relevant for child support purposes for the relevant period the subject of the Appeal, including bank statements, pension statements and the like.
The application went on to seek an order for the wife to file and serve, prior to the hearing, true copies of a large variety of documents relating to her finances and that of named entities “in which she owns a substantial shareholding”.
None of the material upon which the husband wanted to rely was before us. The husband explained that he had, on the morning of the hearing of the appeal, tried to file an affidavit “actually attaching all that evidence”. This had been properly rejected, given the appeal hearing was about to commence. The husband had his opportunity to present the evidence before the Tribunal.
The application will be dismissed.
Application filed 28 April 2016
The husband had forgotten to bring this application to the hearing and asked us to remind him what it was “all about”. We advised him that his application sought to set aside the decision of the Appeals Registrar made on 27 April 2016 refusing to accept yet another Application in an Appeal.
The Application which the Registrar declined to receive sought:
·a stay of an assessment dated 22 March 2016 “pending the outcome of the objection lodged against it by [the husband] and any further Appeals lodged against it in [the Tribunal]”;
·a finding that the Child Support Registrar was in contempt of court for replacing the Case Officer handling the file; and
·an order referring counsel for the Child Support Registrar to the Bar Council “for disciplinary action”.
The reasons given by the Appeals Registrar for her decision to reject this application (as contained in her email of 27 April 2016) were palpably correct.
The application would have been dismissed had we not been advised that a Notice of Discontinuance was filed after we reserved our decision.
Application filed 23 May 2016
This application sought that the wife’s solicitor “be stood down from involvement” in the appeal proceedings. The application was filed in the knowledge that the proceedings were listed in the following week. The supporting affidavit contained nothing more than an email to the Legal Services Commission of 17 May 2016 complaining about the conduct of the wife’s solicitor at hearings in March 2010, July 2013 and February 2016.
The husband abandoned the application when he belatedly recognised that success in the application would abort the appeal hearing.
The costs of the child support appeal
The Child Support Registrar and the wife sought that the husband pay the costs of the child support appeal and of the various Applications in an Appeal (save that the Registrar sought no costs concerning the application of 23 May 2016).
The grounds relied upon included:
· the fact that the husband has been entirely unsuccessful;
· the husband’s conduct of the appeal, including his reliance on grounds that were unfocused and raised no conceivable appealable error;
· the maintenance of unfounded allegations against the wife’s solicitor and counsel for the Child Support Registrar;
· that the proceedings should be perceived as “civil proceedings between the Commonwealth as a third party and the respondent as a citizen rather than as between parties to a marriage” and that the principle that each party should pay their own costs does not strictly apply, and the taxpayer should not have to meet the expense (relying on Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641).[11]
[11]See also Laurie & Child Support Registrar [2009] FamCAFC 183 at [124] – [125] and Paxton & Child Support Registrar & Anor (Costs) [2016] FamCAFC 158 at [27] and [29].
In opposition to the applications for costs, the husband:
· relied upon the “general rule” that each party should bear their own costs;
· argued that his financial position was inferior to that of the wife;
· relied upon a view expressed by the primary judge (when dealing with a stay) that he had an “arguable case”;
· submitted that he had conducted the proceedings properly and had proper grounds of appeal; and
· argued it was “obviously nonsense” to say that the case was in the nature of a civil proceeding, since the Commonwealth was acting on behalf of the wife.
There is substance in each of the propositions advanced by the Child Support Registrar and the wife. The first two alone justify an order for costs. The other two provide further support for such an order. Regardless of whether any of the husband’s grounds of appeal might have been perceived to have been “arguable”, none were found to have merit. Further, regardless of the respective financial strength of the parties, the husband has put others to expense by pursuing an unmeritorious claim, while incurring no costs himself.
The Child Support Registrar sought that the costs of the applications of 7 April 2016 and 28 April 2016 be calculated on an indemnity basis. It was argued that the maintenance by a party of “egregious allegations … cannot go unpunished”. Similarly, the wife sought that any costs awarded should be on an indemnity basis. It was argued on her behalf that the husband’s applications constituted “undue prolongation of groundless contentions”, aggravated by “very stale” allegations against the wife’s solicitor.
Counsel for the Child Support Registrar and counsel for the wife were unable to provide us with any relevant costs agreement or a clear indication of the amount that would be payable if costs were awarded on an indemnity basis. Counsel for the Child Support Registrar also properly conceded that only “minimal” costs had been incurred in opposing the applications of 7 April 2016 and 28 April 2016.
While the arguments in support of the applications for the costs to be assessed on an indemnity basis are not without merit, we agree with May J that the costs should not be awarded on that basis on this occasion.
In determining that the husband should pay the costs, we intend this to cover all incidental costs, including the costs reserved by May J on 8 April 2016.
The Costs Appeal (EA 156 of 2015)
The husband’s burden in establishing that Cronin J erred in making the costs order is a heavy one, since an appellate court will not interfere with such an order unless the result is plainly unjust or the trial judge’s discretion was exercised on wrong principles: Pennisi v Pennisi (1997) FLC 92-774. This Court went so far as to say in Harris & Harris (1991) FLC 92-254 at 78,711 that such orders “are peculiarly a matter which are within the discretion of the trial judge and it is only in the rarest of cases that the Full Court should interfere…” Although this may state the proposition “at its highest” (Browne v Green (2002) FLC 93-115), there are sound reasons for the reluctance to overturn an order for costs: Robinson & Higginbotham (1991) FLC 92-209.
The husband relied upon 19 grounds of appeal in seeking to persuade us to set aside the costs order, but many of these were unsupported by argument. Accordingly, rather than discussing all of the grounds, we propose to address the complaints by reference to the husband’s Summary of Argument.
Departure from the “primary rule”
It was argued that the trial judge had departed from the “primary rule”, namely that indemnity costs should be ordered only in the “most extreme cases”. It was submitted that his Honour had “failed to even attempt to justify why he should depart from the primary rule” other than by relying upon “anecdotal findings” and “looking holistically at a 10 year history” of the litigation.
It cannot be suggested the trial judge misunderstood the law relating to the award of costs. By reference to well-established authority, his Honour:
·recognised that “an indemnity costs order was a very great departure from the normal standard in at least family law jurisdictions”;[12]
·cited, as types of cases where indemnity costs might be ordered, “the making of an allegation that ought never to have been made” and “the undue prolongation of the case by groundless contentions”;[13] and
·found that all that is required for the making of an indemnity costs order is for the Court to be satisfied of the existence of particular facts and circumstances that warrant an order other than on a party-party basis.[14]
[12]At [46], citing Kohan and Kohan (1993) FLC 92-340 and Prantage and Prantage (2013) FLC 93-544.
[13]At [46], citing Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225.
[14]At [47], citing Yunghanns and Yunghanns (2000) FLC 93-029.
His Honour set out a large number of contentions made on behalf of the wife concerning the husband’s unsatisfactory conduct of the litigation.[15] On a fair reading of the reasons, and having particular regard to the findings made in the substantive parenting proceedings,[16] his Honour can be seen as accepting the contentions of the wife. It is this “conduct” to which his Honour referred in expressing his satisfaction “that the normal rule should be departed from and costs should be awarded on an indemnity basis...”[17]
[15]At [32].
[16]Which he cited at [34].
[17]At [49].
Considered together, the husband’s conduct could properly be conceived as involving the making of allegations that ought never to have been made and the consequential undue prolongation of the case. This provided a foundation for the decision, and this part of the husband’s complaint must therefore fail.
Failure to comply with the Rules
The husband complained that the order for costs to be calculated on an indemnity basis was made in the absence of any evidence of the terms of a costs agreement between the wife and her counsel, which the husband submitted was “contrary to the Rules”.
All we need say about this argument is that:
a)there was no ground of appeal encapsulating the complaint and the wife’s counsel therefore did not address it;
b)the husband’s written submissions to the trial judge made the same point, but as his Honour did not see fit to address the proposition, we infer that he dispensed with r 19.08(3) of the Family Law Rules 2004 (Cth);[18]
c)failure to comply with r 19.08(3) does not invalidate an order, since the rule’s primary purpose is to ensure the court is aware of the extent of the costs that will be payable if they are ordered on an indemnity basis;
d)the trial judge knew what costs the wife had incurred[19] and obviously had a close familiarity with the litigation; and
e)the order for costs did not fully indemnify the wife.
[18]See Hand & Bodilly [2013] FamCAFC 98 at [109].
[19]Reasons at [51] and see the Costs Disclosure Statement and the Schedule of Costs attached to the wife’s affidavit sworn 16 March 2015.
The failure of the wife to comply with r 19.08(3) is therefore not a sufficient basis upon which to overturn the costs order.
Error in finding that the husband was the financially stronger litigant
The husband’s next complaint was reflected in Ground 9 which asserted:
9.That the trial judge erred, contradicted himself and demonstrated his confusion and bias in paragraph 27 where he referred to the [husband] as the financially stronger litigant conducting a case improperly, having earlier in that paragraph acknowledged the [wife] is on the evidence to likely be the financially stronger party.
We set out below the relevant portion of [27] of the reasons, and in doing so we have emphasised the sentence upon which the husband has seized:
27.Thus it was submitted, the Court should conclude that [the wife] had some significant financial resources. Whilst the transcript of the tribunal hearing appears at odds with [the wife’s] stated position, even if she had significantly greater financial resources than [the husband], that alone is not a basis not to make a costs order. A financially stronger litigant conducting a case improperly soon weakens a financially weaker litigant. The financial circumstances factor is needed in the Act to assist in determining what impact a costs order would have. Here, I am satisfied that even with the family’s support, [the wife] has unnecessarily incurred costs for the reasons that follow.
It will be seen that his Honour did not make a finding that the wife is “likely [to] be the financially stronger party”. Thus the primary premise in the argument lacks foundation. The secondary premise also lacks substance when it is appreciated that the sentence we have highlighted manifestly does not state what his Honour intended it to state. The sentence makes sense only if it is appreciated that his Honour intended to say “A financially weaker litigant conducting a case improperly soon weakens a financially stronger litigant”.
The husband is a man of considerable intelligence, and we regard this part of his complaint as nothing more than an opportunistic attempt to take advantage of the infelicity of expression of a busy trial judge.
Bias on the part of the trial judge
The husband argued that the trial judge demonstrated bias by criticising the husband for pursuing shared care for 10 years. The husband pointed to the fact that during one of the previous trials, Altobelli FM (as his Honour then was) had been very critical of the wife, but was only “mildly critical” of the husband, and considered that the issues he raised were “genuine”.
Again, the complaint lacks foundation since we are unable to discern from his Honour’s reasons any criticism of the husband for having sought shared care at earlier stages of the litigation. The trial judge did refer to the extraordinary length of the litigation, but only to provide context for the husband’s pursuit of the claim which was the subject of the wife’s application for costs – see [11], [43] and [51] of the reasons in particular.
Furthermore, the trial judge held at [30] that the decision of Altobelli FM was “quite properly” made on the evidence then available, but that this did not assist the husband in opposing the costs application in light of the findings his Honour made in the present litigation. The trial judge went on:
30.In respect of success or otherwise, the Court also has a very wide discretion in s 117(2A)(g) to take into account such other matters as it considers relevant. That very broad discretion is sufficient to enable the Court to look at the overall circumstances of the case and whether the proceedings were in fact being conducted by [the husband] on the basis that he was genuinely and reasonably pursuing the best interests of the children or whether it was fundamentally obvious bearing in mind all of the evidence, that he had another objective…
His Honour’s conclusion was that the husband did have an objective other than the best interests of the children. That conclusion, and the consequential orders made by his Honour, have not been successfully challenged and provide a strong basis for the order for costs.
The husband was not wholly unsuccessful
The husband referred to the fact that the wife sought to “totally exclude” him from the children’s lives and pointed out that she had not been entirely successful in achieving this objective. He therefore submitted that it was incorrect to say that he was “wholly unsuccessful” in the proceedings.
While we accept that the husband was not “wholly unsuccessful,” his Honour expressly recognised this fact as appears from the following extract:
41.In respect of whether [the husband] was wholly unsuccessful, I agree with his counsel that the expression “wholly unsuccessful” must mean entirely without success and indeed, [the husband] successfully convinced the Court that it was not in the best interests of the two children for orders to be made in the terms sought by [the wife]. But as I earlier observed, that is only one aspect of the matter. By focussing on the question of whether someone is wholly unsuccessful, the Court can see where issues were litigated that should not have been having regard to the evidence that was available.
The fact that the wife was not entirely successful was reflected by his Honour’s determination that the wife would recover only half of the costs she had incurred. His reason for so concluding appears from this extract:
53.Costs are clearly discretionary and I have no doubt that [the wife] should contribute something towards her own costs having regard to what she required the Court to determine. In relation to the conduct of the litigation however, I am satisfied that 50 per cent related to issues associated with the position adopted by [the husband].
This complaint must therefore fail.
Failure to understand the financial strength of the wife
The husband complained that the trial judge made no attempt to understand the financial strength of the wife and argued, in effect, that she had been dishonest in the disclosure she had made about her financial position.
The trial judge dealt with the parties’ financial circumstances in these terms:
39.In respect of the financial circumstances of the parties, I am not in a position to make a finding that [the wife] has misled the Court or not comprehensively disclosed her financial position. Little of the evidence in the affidavit of [the husband] assists me. The financial statement relied upon by [the wife] required her to subjectively set out as she saw things. The transcript earlier mentioned provided by [the husband] does no more than indicate what I consider to be an equivocal positon about who was covering [the wife’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 [the wife] could clearly contribute towards her own costs, there is nothing in the material as I earlier indicated, to suggest that [the husband] could not contribute towards her costs either.
Nothing advanced by the husband persuaded us that there was any error in the approach adopted by the trial judge. In determining the allocation of responsibility for the costs of the proceedings, his Honour was not obliged to undertake the close examination of the wife’s circumstances that the husband demands. The broad brush applied by his Honour was entirely appropriate in costs proceedings: Browne v Greene (2002) FLC 93-115 at [25]–[26].
This complaint therefore also lacks merit.
Outcome of the costs appeal
There being no merit in any of the arguments advanced by the husband, the costs appeal should be dismissed.
As he has been entirely unsuccessful, we agree with May J that the husband should pay the wife’s costs of the costs appeal, to be assessed if not agreed.
May J
INTRODUCTION
Mr SCVG (“the appellant”) and Ms KLD (“the respondent”) have two children, who are now aged 14 and 11 years old. The parties were married in 2001 and separated in 2005. Numerous property, parenting and child support applications have been litigated in this court. One of the issues between the parties is child support, which has also necessitated the involvement of the Child Support Registrar as the second respondent (“the CSR”).
On this occasion there are two appeals before the Full Court:
f)Appeal EA75 of 2015 from orders of Judge Scarlett made on 30 April 2015 in the Federal Circuit Court of Australia in relation to child support (“the child support appeal”);
g)Appeal EA156 of 2015 from orders of Cronin J made on 20 August 2015 in the Family Court of Australia in relation to indemnity costs (“the costs appeal”).
This is a complex matter. In addition to the appeals, there are six different applications filed by the appellant, four responses filed by the CSR and a further two responses by the respondent.
In addition, the appellant also has a number of Applications:
a)Application in an Appeal filed 18 August 2015 to adduce further evidence of ombudsman reports in the child support appeal;
b)Application in an Appeal filed 22 February 2016 to adduce further evidence of child support assessments in the child support appeal;
c)Application in an Appeal filed 14 April 2016 to adduce further evidence of the appellant’s financial circumstances and to subpoena financial information from the respondent in the child support appeal;
d)Application in an Appeal filed 28 April 2016 in the child support appeal, seeking to review the Appeal Registrar’s decision to refuse filing of the appellant’s Application seeking a stay of child support payments, pending the outcome of an objection and also seeking to refer counsel for the CSR to the Bar Council for disciplinary action. This application was discontinued on 9 September 2016 and neither the CSR or the Respondent made an application for costs;
e)Application in an Appeal EA51 of 2016 filed 7 April 2016 seeking an extension of time to file a Notice of Appeal from orders of Le Poer Trench J made on 19 February 2016 in the Family Court of Australia in relation to a conditional stay, granted pending the determination of the child support appeal referred to above (“EA51 of 2016”); and
f)Application filed with leave on 23 May 2016 in all appeals, seeking to remove the respondent solicitor from involvement in each of the appeals pending the determination of the appellant’s complaint to the Legal Services Commission (“the LSC”) which was made on 17 May 2016.
There also remains outstanding the issue of costs arising from three Applications that were before May J on 8 April 2016. The costs were reserved to this Court. These Applications include:
a)An Application filed 14 December 2015 seeking an extension of time to further amend the Notice of Appeal in the child support appeal;
b)An Application filed 9 March 2016 seeking to vacate the appeal hearing dates in both appeals; and
c)An Application filed 1 April 2016 which opposed the child support appeal and the costs appeal being heard together.
Position of the CSR
The CSR filed four responses which variously deal with the Applications of the appellant. Some of these have been dealt with, the remaining issue being costs.
A response was filed on 2 March 2016 in opposition to the appellant’s application which sought to file a Further Amended Notice of Appeal and the appellant’s request that all of his appeals should not be heard together. In making orders on 8 April 2016 and allowing a Further Amended Notice of Appeal to be filed, May J reserved the issue of costs of the application to the Full Court. The CSR seeks that the appellant pays their costs of and incidental to the application.
The second response was filed on 21 March 2016, opposing the Application filed on 18 August 2015 to adduce evidence of the ombudsman reports, the Application filed 22 February 2016 to adduce evidence of the further child support assessments and the Application of 9 March 2016 which sought the appeal hearing dates be vacated. The CSR seeks that the appellant pays their costs of and incidental to each of the applications.
The third response was filed on 20 May 2016, which opposed the Application filed 14 April 2016 to adduce evidence of financial information and issue subpoenas, and also opposed the Application filed 28 April 2016 to review the Registrar’s decision. The response also seeks that the appellant pay their costs of and incidental to each of the applications. As noted above, this Application was discontinued on 9 September 2016 and thus it is not necessary for us to deal with it further.
The final response, filed 27 April 2016, opposed the appellant’s application for an extension of time to appeal a decision of Le Poer Trench J, and also opposed an application of the appellant served but not filed, which seeks to refer counsel for the CSR for disciplinary action. The CSR seeks costs on an indemnity basis in this response.
In essence, the CSR opposes both the child support appeal, and every application of the appellant relevant to that, and asks for costs. It is submitted that leave to appeal should not be granted as no error of law has been demonstrated.
Position of the respondent
The respondent, represented by counsel opposes all appeals and applications.
On 17 May 2016 the respondent filed a response in appeal EA51 of 2016. This response notes that the respondent opposes “any other Application in an Appeal filed in these proceedings” and submits they should be summarily dismissed. The respondent seeks costs on an indemnity basis for all applications filed by the appellant.
Also on 17 May 2016 the respondent filed a response in the costs appeal, seeking that the appellant pay the respondent’s costs on an indemnity basis of the application filed on 1 April 2015 which unsuccessfully sought that the appeals not be listed together.
BACKGROUND
As this myriad of appeals and applications appears cumbersome, it is helpful to provide some background.
On 6 April 2016, the parties came before May J as a result of a number of applications filed by the appellant.
The appellant sought leave to file a Further Amended Notice of Appeal in the child support appeal by way of an application filed on 14 December 2015. By orders made on 8 April 2016, leave was granted. The respondent and CSR were each provided an opportunity to file supplementary submissions in response to the Further Amended Notice of Appeal. The CSR filed supplementary submissions on 13 May 2016 and the respondent filed supplementary submissions on 18 May 2016.
By way of application filed 9 March 2016 the appellant sought the hearing dates of his appeals be vacated. The appellant also opposed, by way of Application filed 1 April 2016, the child support appeal and the costs appeal being heard together, citing his desire to engage lawyers and counsel to assist with the running of the appeals. The appellant argued that he would suffer prejudice if the appeals were heard together. These requests were refused, the appellant provided no evidence of his attempts to engage solicitors or seek legal aid. Further, substantial prejudice would have been caused to each of the respondents if the appeal dates were vacated.
The costs of each of the Applications was reserved to be determined by the Full Court.
It is not without significance that since the making of the orders on 8 April 2016, the appellant has filed a number of further applications in the various appeals apparently without legal assistance. There is no doubt, that for a range of reasons, the appellant has attempted to delay his appeals being heard.
The appellant's Application filed with leave on 23 May 2016 sought to remove the respondent’s solicitor from acting for her, pending his complaint to the Legal Services Commission. The filing of this Application at a time so close to the hearing of the appeals created further difficulty.
It is understandable that the respondent is of the view that the appellant is unwavering in his pursuit to harass her through litigation.
It is relevant here to refer to the appellant’s applications for special leave to appeal to the High Court of Australia. Since 2007, there have been five applications for special leave to appeal decisions of the Family Court, with one as recent as December 2016. Each has been refused.
THE CHILD SUPPORT APPEAL – EA75 OF 2015
It is convenient to commence these reasons with the child support appeal.
In 2012, the appellant applied to the CSR for a determination seeking to depart from various child support assessments, pursuant to s 98B of the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). The grounds for departure were established, and the appellant’s annual rate of child support was set at $11,000 from 1 January to 14 July 2011, and then reduced to $6,000 from 15 July 2011 to 30 June 2013. The appellant objected to this decision, and on 19 September 2012, a new decision was made, increasing his liability to an annual rate of $20,486.00.
The appellant objected and the matter came before the Social Security Appeals Tribunal (“the SSAT”) on 6 February 2013. On 20 March 2013 this decision was posted:
From 15 July 2011 to 31 December 2014, [the appellant’s] adjusted taxable income is set at $360,000 per annum and [the respondent’s] adjusted taxable income is set at $130,000 per annum.
This means the application is partially successful.
The appellant appealed to the Federal Circuit Court of Australia from that decision of the SSAT.
Reference will be made to the hearing before Judge Scarlett at the trial, to distinguish this from the appeal.
The appellant had five grounds of appeal before Judge Scarlett:
1.That the Social Security Appeals Tribunal [the Tribunal] erred in failing to make a finding as to whether a ground for departure existed in respect of the Respondent’s income, property, financial resources and/or earning capacity.
2.That the Tribunal erred in the approach adopted to and determination made in respect of the Appellant’s income (if a finding was made), in that:
2.1the Tribunal conflated considerations related to expenses, income and financial resources;
2.2the Tribunal failed to make a finding as to the Appellant’s income;
2.3the Tribunal failed to make a finding as to the Appellant’s earning capacity; and
2.4the Tribunal was in error in each finding made in ‘dot points’ 4,5 and 6 of paragraph 14 of the Reasons for Decision, each finding being not properly available to the Tribunal and which has had the effect of impugning the decision.
3.The Tribunal appears to have made findings in relation to the Appellant’s compliance with his taxation obligations, which findings:
3.1 were not properly available to the Tribunal on the evidence;
3.2the Appellant was not afforded the opportunity to be heard in respect of; and,
3.3 were irrelevant to the decision.
4.That having found that a ground existed for departure from the administration (sic) assessment of child support, the Tribunal erred in:
4.1failing to have appropriate or any regard to the actual costs of care for the children;
4.2 (not pressed)
4.3confining a consideration of the Respondent’s financial position to her income and one ‘non-cash benefit’;
4.4failing to consider and make findings in relation to the Respondent’s income, property, financial resources and/or earning capacity;
4.5failing to have any or sufficient regard to the ‘costs of contact’ between the Appellant and the children;
4.6 (not pressed)
4.7 (not pressed)
5.That the Tribunal erred in finding that the Appellant’s adjusted taxable income ought to be set at $360,000.
Judge Scarlett dismissed the appellant’s appeal and affirmed the decision of the SSAT. His Honour summarised the decision of the SSAT at [13] – [28] of his reasons, noting that the SSAT found that the appellant had income greater than the sum applied and therefore grounds for departure were substantiated.
As will become relevant again later, it is appropriate to note that the SSAT commented upon the appellant’s desire to compel the respondent to provide more information about her financial resources and those of her family. Judge Scarlett noted that “The Tribunal was critical, to say the least, of the Appellant’s claims about the First Respondent’s financial arrangements…” The SSAT recorded that the appellant eventually conceded that “he [had] no real evidence about [the respondent’s] financial resources and admitted it was all based on speculation and forecasts.”
As to these allegations, the judge recorded the findings of the SSAT, in considerable detail, at [22] of the Reasons:
22. The Tribunal found that (in summary):
a)The First Respondent is employed in an arm’s length transaction by her family’s company;
b)She works for a salary and her expenses on her Statement of Financial Circumstances were consistent with her employment income;
c) The First Respondent was utilising her full earning capacity;
d)The First Respondent’s family are wealthy and she enjoys benefits that arise from that wealth, including having had her legal expenses, amounting to more than a quarter of a million dollars, paid by her family;
e)The First Respondent lives rent-free in a home owned by her family and she had been provided with a second hand motor vehicle, which she maintains and mainly uses for work;
f)The First Respondent’s income was $130,000.00, made up of her 2012 taxable income of $99,447.00 and non-cash benefits of accommodation grossed up to $30,000.00; and
g)“Applying an adjusted taxable income of $360,000 for [the appellant] and $130,000 for [the respondent] to the child support formula results in an annual liability of $14,268, approximately per annum.”
(footnotes omitted)
Each party were represented by counsel before Judge Scarlett, and each provided comprehensive written submissions. At the trial, counsel for the appellant narrowed the appeal to three issues, being that the finding of taxable income at $360,000 was erroneous, that the appellant was not accorded procedural fairness and the SSAT erred in not compelling the respondent to provide financial information. These three issues canvassed the five grounds as earlier set out as contained in the notice of appeal from the SSAT decision, with three grounds containing a number of sub-grounds.
Submissions on the SSAT Appeal
Appellant’s submissions
The trial judge recorded the submissions of the appellant in considerable detail. It was submitted that the SSAT was compelled to consider the respondent’s income, assets and financial resources. According to the appellant, the fact that the SSAT made determinations by reference only to the appellant’s financial circumstances amounted to an error of law. Counsel submitted that the SSAT should have taken steps to compel further information about the respondent’s financial circumstances.
In this context, counsel for the appellant submitted that the SSAT did not make a proper finding as to the appellant’s financial circumstances, and by acknowledging that the appellant’s income could not be assessed “with certainty”, it had the requisite power under s 98E of the Assessment Act to refer the matter to the Court to determine these matters more forensically.
It should be mentioned that s 98E makes provision for a CSR to refuse to make the determination if the CSR is satisfied that the issues are “too complex”. No such decision was made by the CSR.
It was argued that the findings in relation to the appellant’s taxation obligations were not available on the evidence, were irrelevant and were found in circumstances where the appellant was not presented with an opportunity to respond to such findings.
The appellant challenged the findings of the SSAT as to the cost of his travel to see the children. It was argued that “as the Tribunal had found those costs existed, it had to have regard to them” and to dismiss them as irrelevant was in error.
The appellant also challenged the statement by the SSAT that it “had no duty to inquire”. As Judge Scarlett explained:
53.In his oral submissions Mr Othen asserted that it was not right that the Tribunal had no general duty to inquire. He noted that the Child Support Registrar relied on the decision of the High Court in Minister for Immigration and Citizenship v SZIAI in support of the proposition that a tribunal has no general obligation to inquire, but he referred the Court to paragraph [25] of the decision, where it was held that in some circumstances a failure to make an obvious inquiry about a critical and easily ascertainable fact could constitute a failure to review.
CSR submissions
At the hearing before the trial judge, counsel argued (as he did on appeal) that the appellant “failed to grapple with the distinction between questions of fact and questions of law and merely took issue with the merits of the Tribunal’s factual findings and decision” (at [56] of the Reasons).
It was submitted that many grounds of appeal “should be dismissed as cavilling with the merits of the Tribunals’ findings” (at [61]). It was further submitted that a number of grounds were not proper grounds of appeal, not being errors of law.
It was noted that the appellant sought a departure based on his own alleged lack of income, so the SSAT was correct to consider his evidence in support of that application and make relevant findings on his own evidence. It was argued that the SSAT had appropriate regard to the respondent’s financial resources, and made a determination that a ground for departure existed.
The CSR argued that as to any challenges to the appellant’s taxation, the SSAT simply put the appellant on notice about his affairs. There was therefore no procedural fairness issue, because “The Tribunal was not required to invite the Appellant to comment on its provisional views or thought processes before making its decision.”
Respondent’s submissions
Initially, the respondent neither opposed nor supported the appeal, but once the appellant was granted leave to amend the grounds of appeal, the respondent opposed the orders sought. Relying on the decision of Brown FM in Carrigan & Fredericks (SSAT) Appeal [2011] FMCAfam 544, the respondent submitted:
76.The thrust of the First Respondent’s submission is that the Appellant, being unhappy with the determination of the SSAT, is seeking that the Court conduct a review of the merits of the Tribunal decision under the ruse de guerre that the Tribunal erred in law.
77.Essentially, the submissions of Counsel for the First Respondent echo those of Counsel for the Child Support Registrar in that the submission is that the Appellant has failed to demonstrate any error of law on the part of the Tribunal, including a denial of procedural fairness and so the Appeal should be dismissed.
Reasons of the Trial Judge
The judge rejected the appeal by the appellant in its entirety. As to the appellant’s first complaint, that the SSAT erred in failing to making findings as to whether a ground for departure existed on the respondent’s financial circumstances, the judge found that as the appellant had put his own financial circumstances into issue, “it would be unjust and inequitable in the special circumstances of the case not to depart from the administrative assessment on the Appellant’s income” (at [83]). This finding that the appellant’s income was greater than that applied in the assessment was within the SSAT’s power pursuant to s 117(2)(c)(ia) of the Assessment Act.
As to the appellant’s second ground of appeal, that there was an error in the approach adopted in respect of the appellant’s income, and its four sub-grounds, the trial judge accepted the submissions of the CSR. The judge rejected the submission that the decision was unreasonable.
In dealing with the appellant’s complaints of procedural unfairness, in the third ground, the trial judge concluded that there was ample evidence for the SSAT to make conclusions regarding the appellant’s taxation and financial affairs. The trial judge accepted the submissions of the CSR that the SSAT was putting the appellant on notice about his taxation issues, and there was no need for the SSAT to make comments prior to its decision. His Honour referred to the decision of SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, and in particular [48] of that decision:
100. In SZBEL the High Court held at [48]:
Secondly, as Lord Diplock said in F Hoffman-La Roche & co AG v Secretary of State for Trade and Industry [24]:
“the rules of natural justice do not require the decision-maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. If this were a rule of natural justice only the most talkative of judges would satisfy it and trial by jury would have to be abolished.”
Procedural fairness does not require the Tribunal to give an applicant a running commentary upon what it thinks about the evidence that is given. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment.
(Original emphasis)
The trial judge concluded that the appellant’s fourth ground of appeal was “essentially an attempt at merits review”. It was clear the SSAT had regard to the evidence, and was entitled to reject that evidence. As to the duty to inquire about the respondent’s financial circumstances, the trial judge noted the law on this issue is “well established”, by reference to ss 103N and 103T(1) of the Child Support (Registration and Collection) Act 1989 (Cth) (“the Registration and Collection Act”), s 98H of the Assessment Act and Minister for Immigration and Citizenship v SZIAI (2009) 83 ALJR 1123. The trial judge concluded:
117.I am satisfied that the Tribunal had no general duty of inquiry. It is also clear from the Tribunal Decision that there was no failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertained.
As to the final ground, that there was an error in accepting that the appellant’s taxable income ought to be set at $360,000, the trial judge accepted the CSR’s submission that the appellant was merely cavilling with the merits of the SSAT findings. The trial judge referred to the appellant’s evidence relied upon by the SSAT to conclude that the taxable income should be set at $360,000. The trial judge agreed that the SSAT made its decision appropriately, based on the appellant’s own evidence.
The Appeal and Applicable Law
A decision providing guidance as to the determination of appeals in child support matters is that of the Full Court (Bryant CJ, Finn and Kent JJ) in Child Support Registrar & Crabbe And Anor [2014] FamCAFC 10 at [4] – [12]. Part VII of the Registration and Collection Act provided the procedures for objections to decisions of the CSR. Decisions of the CSR were subject to review by the SSAT, pursuant to Part VIIA of the Registration and Collection Act. The Full Court set out the process for appeals as follows:
7.Part VIII of the Registration and Collection Act is entitled “Court Review of Certain Decisions”. Included in Division 3 (Sub-Division B) of Part VIII is s 110B which provides that:
A party to a review by the SSAT under Part VIIA may appeal to a court having jurisdiction under this Act, on a question of law, from a decision of the SSAT on that review under section 103S.
(Emphasis added)
8.The courts which have jurisdiction under the Registration & Collection Act are specified in s 104 of that Act, and include the Family Court and the Federal Circuit Court (formerly the Federal Magistrates Court). Thus, an appeal on a question of law from the SSAT can, at least in theory, be brought in either the Family Court or the Federal Circuit Court; however, as a matter of practice such appeals are brought in the Federal Circuit Court.
…
10.An appeal then lies under s 107A(1) of the Registration and Collection Act to the Family Court from a decision of the Federal Circuit Court in relation to the determination of an appeal from the SSAT brought under s 110B of the Registration and Collection Act – the determination of such an appeal by the Federal Circuit Court being within the original jurisdiction of that court (s 10(2) of the Federal Circuit Court of Australia Act 1999 (Cth)).
Amendments were subsequently made to the Registration and Collection Act and Assessment Act by way of the Tribunals Amalgamation Act 2015 (Cth), which conferred jurisdiction of the SSAT to the Administrative Appeals Tribunal (“the AAT”), commencing from 1 July 2015.
The effect of the changes were discussed by the Full Court (Strickland, Ainslie-Wallace & Kent JJ) in considerable detail in COG15 & Child Support Registrar & COG and Anor [2016] FamCAFC 272 (at [17] – [28]). The Full Court noted (at [19]) “that s 110B … was repealed with the effect that appeals on a question of law … will only be heard by the Federal Court of Australia, or by the [Federal Circuit Court of Australia] on remitter from the Federal Court of Australia.” The Full Court confirmed that appeals instituted prior to 1 July 2015 should be heard pursuant to the old ss 110B and 104 of the Registration and Collection Act:
24.The Tribunals Amalgamation Act does not affect the jurisdiction of the Family Court of Australia to hear and determine applications made under s 107A of the Registration and Collection Act, namely the section under which this appeal is brought. …
…
28.In summary, and for the avoidance of doubt:
a)As of 1 July 2015:
•appeals to the FCCA (or to the Family Court of Australia) from the SSAT where the appeal was filed in the FCCA, (or the Family Court of Australia), prior to 1 July 2015, and
•appeals to the Family Court of Australia from the FCCA in relation to appeals made to the FCCA from the SSAT where the appeal was filed in the FCCA prior to 1 July 2015,
will be continued in the court where the appeal has been initiated until finalisation.
The SSAT made its order on 7 March 2013, which was affirmed on 20 March 2013. Judge Scarlett’s Reasons were delivered on 30 April 2015. The appellant’s original Notice of Appeal was filed on 28 May 2015 and therefore prior to the 1 July 2015. Thus, the Full Court of the Family Court has jurisdiction to hear this appeal. There is no doubt that this is an appeal limited to errors of law (s 110B of the Registration and Collection Act).
The next question which arises is whether leave should be granted to hear the appeal. Leave to appeal is required by s 107A(1) of the Registration and Collection Act.
The test for leave to appeal as traditionally articulated was whether the grounds demonstrated an error of principle and/or the orders would cause substantial injustice (Rutherford & Rutherford (1991) FLC 92-255). In the context of child support appeals, there is some authority suggesting a less restrictive approach (Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10).
The approach to leave to appeal where required by s 94AA of the Family Law Act 1975 (Cth) (“the Act”) was recently restated in Medlow & Medlow (2016) FLC 93-692:
57.We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
(Original emphasis)
In my opinion, the Medlow test should be applied in child support matters. I note that leave was granted in Crabbe because it was decided that the appeal raised matters of general importance.
The appellant’s Further Amended Notice of Appeal contains 21 grounds of appeal, which, in my opinion, raise the same three central issues as those before the trial judge, and also those raised before the SSAT. In support of leave being granted, the appellant made the following submissions:
1.Refer to Grounds of Appeal below.
2.A substantial injustice occurred in that the SSAT used its discretion to:
-Attribute to me an income of about ten times my actual taxable income for the 2013, 2014 and 2015 years. This is demonstrated by my subsequent tax returns assessed by the ATO and used for reduced child support assessments by the CSA.
-Refuse to calculate or “forensically” assess my income based on the full and frank disclosure of all my financial information, instead of picking a figure of $360,000 out of the air.
-Ignore the detailed estimates I provided of the respondent’s income and financial resources, based on publically available information such as ASIC searches, which established a prima facie case that the respondent had materially misled the CSA and SSAT about her financial circumstances.
- Refuse to compel the respondent to provide any financial information about the companies that she admitted she owned substantial shareholdings in, despite having been repeatedly requested to do so by me, and being put on notice by me of the significance of the likely outcome of such an inquiry.
The CSR opposes leave being granted, arguing that none of the grounds assert an error of law as required. Further, the additional grounds filed with leave on 8 April 2016 contain a “significant degree of overlap between [the] grounds”.
To determine if leave should be given, a careful examination of the appellant’s grounds of appeal is required. These grounds can be broadly summarised as:
a)that the determination of the appellant having a taxable income of $360,000 was erroneous;
b)that the SSAT and the trial judge failed to accord procedural fairness to the appellant; and
c)the SSAT and the trial judge failed to take proper steps to compel the respondent to provide financial information.
The CSR argues that the appellant’s grounds that relate to the findings made by the SSAT about his income are essentially a repetition of grounds 2.1, 2.2, 2.4 and 5 before the trial judge. The CSR correctly identifies that the grounds raised on appeal that relate to this issue do not raise a question of law.
As to procedural fairness, the CSR argues that the appeal grounds repeat the submissions made in grounds 3.1, 3.2 and 3.3 before the trial judge. The CSR submits:
42.…The [SSAT] put the [appellant] on notice that it had serious concerns in relation to his tax affairs. Its observations or expressions of opinion at AB 68 [14] and 70 [19] were made in a context where the [appellant] had been given a reasonable opportunity to address the [SSAT] on why he had claimed certain deductions.
The second respondent was critical, to say the least, of the appellant’s repeated allegations about the financial resources of the respondent’s family. As noted by the trial judge, the SSAT found the circumstances as explained by the respondent to be appropriate on the evidence and it would not embark on some fishing expedition to satisfy the appellant.
It seems the essence of the appellant’s case is that the onus was on the CSR to establish before the SSAT the relevant jurisdictional facts and that they failed to so do, especially in relation to each party’s financial circumstances. The appellant’s submission to this Court, is effectively that the evidence in relation to his and the respondent’s income and financial resources was inadequate and there should have been further investigation before a decision was made. The SSAT had regard to the appellant’s financial affairs and was entitled to conclude that detailed factual findings were unnecessary in this case, likewise, the SSAT was satisfied with the evidence placed before it by the respondent in relation to her income. The judge was also correct in his decision in relation to the evidence and the reasons of the SSAT.
I am satisfied that leave should not be granted. It is not necessary to discuss each appeal ground in considerable detail, they having been the subject of detailed examination by the SSAT and again by the trial judge. There is no discernible error of law and the appellant has failed to satisfy the requirements for leave.
Applications to adduce further evidence
As previously noted, the appellant filed three applications to adduce further evidence in this appeal:
a)Application filed 18 August 2015 to adduce further evidence of ombudsman reports in the child support appeal;
b)Application filed 22 February 2016 to adduce further evidence of child support assessments in the child support appeal;
c)Application filed 14 April 2016 to adduce further evidence of the appellant’s financial circumstances and to subpoena information from the respondent in the child support appeal.
In addition to these Applications, the appellant filed a contested appeal book which contained information in support of the further appeal grounds, and this Application.
The contested appeal book, filed 18 September 2015, contains a number of pieces of evidence that the appellant contends were before the SSAT, and later before the trial judge.
The first document in the contested appeal book, a letter filed 25 January 2013 before the SSAT, sets out the appellant’s arguments about his assessment by the Child Support Agency and why it was incorrect, and also sets out the errors (as he sees them) made about the first respondent’s and his own financial circumstances. What then follows are a number of ASIC Company Extracts about the companies owned or allegedly controlled by the family of the respondent or in which she may have an interest; property searches and listings purported to be held by the family of the respondent and some online journal articles.
The appellant contends that this material was before Judge Scarlett, but was not properly considered by his Honour. Both the CSR and the respondent opposed the material in the contested appeal book being included. The transcript of the hearing before Judge Scarlett was not provided by the appellant, and the CSR conceded he could not accurately recall if the documents were properly before the trial judge (Transcript 27 May 2016, p.39, l.18 – 29). The CSR contends that notwithstanding, the documents are of no relevance to the appeal.
Counsel for the first respondent referred to an affidavit of Mr Macphillamy filed 2 March 2016, which was filed directly in response to this issue. The following extract from the transcript is instructive:
MS TONKIN: Your Honour, of course I wasn’t part of the Federal Circuit Court appeal, but I note that an issue was raised by Mr McPhillamey [sic] about the contested appeal books, and I believe that’s on affidavit in response to this application in the appeal and the appeal substantive EA75. And I’m just finding that, your Honours. If you go to Mr McPhillamey’s [sic] response to the application in an appeal dated 2 March 2016, the affidavit in support of that response annexes an email to the appeals registrar indicating as follows:
My client’s understanding is this matter is an appeal not a hearing de novo. Further, [the appellant’s] position at the procedural hearing was that no documents from the SSAT file should be included in the appeal books. Consequently my client does not agree to the inclusion of the selected extracts from the SSAT file as proposed by [the appellant] being included in the appeal books. And finally I record that it was – despite my submission to the contrary – [the appellant’s] submission to you that it was unnecessary to include the transcript of the proceedings before Judge Scarlett in the appeal book.
So the difficulty this court has, your Honours, is that, firstly, [the appellant’s] position was that this court would not be privy to the material that was before the SSAT, and not be privy to the transcript before Judge Scarlett, so that you could be assisted to determine what in fact Judge Scarlett had before him in determining the matter, and Mr McPhillamey [sic] squarely raised that issue with the appeals registrar on or about 26 August 2015. And that’s as much as I can assist the court.
(Transcript 27 May 2016, p.40, l.7 – 29).
Counsel for the respondent’s submission then went on to examine the documents in the contested appeal book, and submitted that some of the documents were not even before the SSAT, let alone the trial judge.
The appellant contends, wrongly, that as the SSAT sent all the material before it to the trial judge, this material was therefore properly before the trial judge and his Honour was in error not to refer to it. The appellant made no further oral submissions about the contested appeal book, and at [1] of his summary of argument, simply makes further arguments about the respondent and her financial circumstances. This evidence is not relevant and in any event not of assistance to the appellant’s case.
As leave to appeal should not be granted, these applications should be dismissed. In any event, this proposed evidence could not assist in an appeal from a decision from the Federal Circuit Court, which must be confined to questions of law.
As an example, in the application filed 14 April 2016, the appellant sought to place before us evidence he collected in relation to his financial circumstances. It seems some of this evidence was not placed before the SSAT or the judge. The Ombudsman’s report does not relate to this case but it was contended that it would demonstrate some improper purposes on the part of the CSR. The material to which the 14 April 2016 application relates is in relation to child support periods post this decision under appeal.
Application for an Extension of Time – EA51 of 2016
The orders of Judge Scarlett made on 30 April 2015 (the subject of the child support appeal) provided the following:
(2)The decision of the Social Security Appeals Tribunal made on 7 March 2013 and posted on 20 March 2013 is affirmed.
On 23 September 2015, the appellant filed an Application in a Case seeking a stay of that order pending the determination of the child support appeal. A stay was granted by Judge Scarlett on 23 September 2015, and the order provided:
That order 2 made on 30 April 2015 is stayed, pending determination of the appeal filed by the applicant on 28 May 2015.
The matter then came before Le Poer Trench J on 19 February 2016, as it would appear that in making the orders his Honour did on 23 September 2015, Judge Scarlett did not consider a garnishment notice which had been served on the appellant’s former employer, the consequence of which would see amounts deducted from payments the appellant was receiving as part of a superannuation type payment.
On 19 September 2016 Le Poer Trench J made orders granting a stay of a garnishment notice issued pursuant to s 72A(2) of the Registration Act to the appellant’s former place of employment. His Honour commented:
7.It is apparent to me from reading the stay judgment of Judge Scarlett that (a) he did not know of the garnishment order; and (b) he intended that the operation of the stay would prevent any collection of arrears by the Child Support Agency, pending the hearing of the appellant’s appeal against the order and determination made by Judge Scarlett on 30 April 2015. It also appears reasonably clear that had he known of the garnishment order, he would have, on the application of the appellant, granted an injunction which restrained further collection, perhaps on conditions.
This stay was granted conditional upon the appellant doing all things to progress the child support appeal, and required the appellant to continue to meet his obligations under any child support assessments that were in operation at that time and until 30 May 2016:
11.Given that which I have set out so far, and given that the appeal will most probably be concluded by the end of May, I consider that it is appropriate to make an order which would suspend the operation of the garnishment order currently in place for a limited period of time. Any such operative order must be the subject of conditions, those conditions including that the appellant meet his current obligations under current child support assessment and that he prosecute his appeal diligently. Failure on his part to comply with either of those requirements, at the very least, should give rise to an automatic discharge of the stay order. Accordingly, I propose to make such an order, which I will set out shortly.
The appellant also sought that a departure prohibition order, an application which was not before Le Poer Trench J, be set aside. The CSR argued that the Family Court did not have the requisite jurisdiction pursuant to s 72Q(1) of the Act. His Honour accepted that submission. Finally, the appellant sought a restraint against the CSR applying penalties for non-payment of outstanding child support. The CSR argued “that if at the conclusion of this litigation some variation to the determination made by the SSAT against which the appellant appeals should be required, then a review of penalties pursuant to the Act will take place”. Le Poer Trench J accepted this submission and did not order a restraint.
On 7 April 2016 the appellant filed an Application in an Appeal seeking an extension of time to file a Notice of Appeal against the decision of Le Poer Trench J. This was considered by May J on 8 April 2016, but adjourned to the Full Court hearing as the decision would be affected by the outcome of the child support appeal.
In explaining the delay, the appellant notes that he thought he needed a copy of the reasons before a Notice of Appeal could be filed. Despite contacting the associate to Le Poer Trench J for a copy on 3 and 10 March 2016, the appellant contends he did not receive a copy of the reasons. The appellant attempted to file the Notice of Appeal on 5 April 2016 but was refused because he did not provide the filing fee. The Application was then not filed until 7 April 2016.
As leave in the child support appeal has been refused, this Application is also refused. It is a futile application. It is worth noting that this application would have been refused in any event, as the delay had not been adequately explained and the appellant has failed to demonstrate any possible merits of the appeal.
The CSR opposed the application, and sought costs on an indemnity basis. This will be discussed and considered in more detail in the “costs” section to these Reasons commencing at [198].
THE COSTS APPEAL – EA156 OF 2015
The appellant filed a Notice of Appeal on 15 September 2015 from orders of Cronin J made on 20 August 2015. His Honour ordered the following:
1.That the father pay 50 per cent of the costs of the mother on an indemnity bases [sic] 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 substantive parenting proceedings were heard and determined, and final parenting orders were made on 27 February 2015. His Honour ordered the parties provide written submissions as to costs. Both parties provided written submissions, prepared by counsel.
Reasons of the primary judge
Justice Cronin commenced the reasons by reference to the provisions contained in s 117 of the Act that each party shall bear their own costs. His Honour then considered s 117(2A) and the relevant matters to be considered in determining whether a costs order should be made.
The appellant filed before the primary judge a further two affidavits to be considered in addition to his written submissions, which were prepared by counsel. The respondent objected to those affidavits being read, but his Honour included them on the basis that the appellant was still largely unrepresented and the affidavits therefore might have assisted his case. At [7] of the reasons, his Honour concluded they did not assist and gave them no weight.
The primary judge considered the parenting proposals adopted by the parties in the substantive parenting proceedings. The appellant sought equal parental responsibility while the respondent sought sole parental responsibility. His Honour noted:
8.… In extensive previous litigation in the Federal Circuit Court, an order had been made for equal shared parental responsibility and that order was extant at the final hearing. In relation to time between the children and [the appellant] which had been controversial for a long time, [the appellant] sought a transitional arrangement leading to a week-about or shared care parenting. With the benefit of hindsight, on any view, that was not only ambitious, it was unrealistic. That approach by [the appellant] undoubtedly added to the complexity of the case. For her part, [the respondent] sought a complete exclusion of [the appellant] from the lives of the children including in relation to communication by telephone. Whilst there were undoubtedly good reasons to alter the status quo because of the views adopted by the children and the position taken by [the appellant] which had frustrated [the respondent], the social science evidence would have made [the respondent]’s approach difficult but not impossible. It was only in the trial, and again hindsight assists, the Court’s conclusion was that complete exclusion of [the appellant] was not the answer.
The final parenting orders provided for the respondent to have sole parental responsibility for the children, and for the children to only have written and telephone communication with the appellant on one day per week.
In his reasons, the trial judge set out the submissions of the respondent as to why an order for costs should be made and the basis for it to be on an indemnity basis. The judge referred to the financial circumstances of the appellant, his conduct of the litigation and the substantive reasons for the parenting orders made. The judge decided there were circumstances which justified an order for costs.
Cronin J then considered the application that the order be on an indemnity basis. After reference was made to well-known decisions, his Honour concluded:
49.But by reference to the conduct of [the appellant], I am satisfied that the normal rule should be departed from and costs should be awarded on an indemnity basis but the question is to what extent.
…
51.Rule 19.18(3)(a) to (f) are discretionary considerations for the court when contemplating making an order for costs at all. In summary, using that sub-rule, I am satisfied that this was very important litigation because the dispute between the parents had been going on for ten years and had involved at least two final hearings and things had not got any better for the children. The litigation was complex and difficult because of the approaches taken as I have described them. I have already found that the behaviour as a litigant of [the appellant] was not reasonable having regard to all of the evidence but in particular, his persistence in relation to getting his own way. I have seen the costs incurred on behalf of [the respondent] and am unable to say whether that is greater or lesser than other parenting cases but it would seem that the substantial portion of the costs arose from the start of 2015 in the lead up to the February hearing.
…
53.Costs are clearly discretionary and I have no doubt that [the respondent] should contribute something towards her own costs having regard to what she required the Court to determine. In relation to the conduct of the litigation however, I am satisfied that 50 per cent related to issues associated with the position adopted by [the appellant].
54.Accordingly, it is just in my view to make an order that [the appellant] pay 50 per cent of the costs incurred by [the respondent] 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 [the respondent] was charged by her respective lawyers. There will be orders accordingly.
The Appeal
The appellant relies on 19 grounds of appeal. They are not all proper grounds of appeal, and many simply criticise matters entirely within his Honour’s discretion. Other grounds challenge the substantive decision which was not appealed. The primary judge also made orders restraining the appellant from bringing any further applications concerning the children, without leave. There was no appeal from that order.
In written submissions, the appellant does not argue or address all of the grounds. Doing my best, and mindful the appellant is a litigant in person, I have summarised the appellant’s grounds to include the following issues:
a)The trial judge erred in the application of s 117 and in particular, the discretionary factors set out in s 117(2A) (Grounds 1, 4, 10, 17 and 19);
b)That the trial judge erred in finding the appellant was the “financially stronger litigant” and other factual errors (Grounds 9, 12); and
c)That the trial judge demonstrated bias (Grounds 1, 4, 6 and 10).
(a) The primary judge erred in the application of s 117 and in particular, the discretionary factors set out in s 117(2A)
In dealing with this ground, it is convenient to set out the relevant sections of the Act:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
The appellant submits that as the respondent “was not wholly successful” in excluding him from the children’s lives because he has the opportunity for occasional telephone contact and correspondence, the judge was wrong to make an order for costs. Additionally, the appellant is critical of the judge providing such a detailed judgment.
Section 117(2A)(e) of the Act refers to proceedings where a party has been “wholly unsuccessful”. To suggest that the respondent “was not wholly successful” and therefore consequent award of costs was in error is not correct. Being wholly unsuccessful in proceedings is a factor in determining whether an order for costs should be made.
The appellant also contends that the primary judge failed to give reasons for awarding an indemnity costs order, and did not properly apply the principles referred to in Madin & Palis (Costs) [2016] FamCAFC 25. In my view, the reasons given, by reference to settled authority, referred to all the salient features of this case.
The respondent argues that the primary judge made no error of law and found there were justifying circumstances for making an order for indemnity costs. The respondent contends that the primary judge properly determined that the appellant’s conduct was unreasonable and relied on the following paragraph of the Reasons:
43.Section 117(2A)(g) also allows the Court to take into account any other matters that are relevant in the circumstances. I agree with the submission put on behalf of [the respondent] that the pursuit of orders in the terms sought by [the appellant] entitled the Court to say that there are doubts about his bona fides. The way in which he went about the proceedings accusing [the respondent] of alienating the children without any foundation in the context of ten years of litigation enables me to find that [the appellant] intended to pursue what he wanted having not obtained that outcome in the previous proceedings. That persistence, caused [the respondent] significant costs by having to participate in proceedings which were really about why the children had adopted a position of reticence to have a relationship with [the appellant].
The trial judge, faced with a complex parenting matter, made the appropriate findings and properly exercised the discretion to make an order for costs. His Honour made costs orders which were well supported by reference to the factors contained in s 117(2A).
(b) That the primary judge erred in finding the appellant was the “financially stronger” litigant
The appellant once again referred to the decision of Madin & Palis as the basis that the trial judge erred in finding the appellant was the financially stronger litigant. The appellant relies on the following paragraph of that judgment:
21.The existence of a disparity in the financial circumstances of the party appears to be a matter of some dispute. However, even if the appellant’s claims on this matter are accepted in their entirety, they would not, in our view, provide justification for the making of a costs order in the appellant’s favour having regard to the circumstances of these appeals as we have explained them.
The appellant fails to appreciate that the circumstances of that case are entirely different to his own before this Court. The litigant in Madin & Palis was not successful in relying on any of the factors set out in s 117(2A) to justify an order for costs, including where offers to settle had been made. The appeal in that case was allowed on an important issue, where the Full Court noted the appeal concerned a “novel issue on which there was no clear existing authority” (at [20]). The Full Court in Madin & Palis concluded that, notwithstanding a dispute about financial circumstances, an order for costs was not appropriate having regard to the matters just raised.
The respondent correctly submits that it was the appellant’s conduct that largely formed the basis of making a costs order, and not the financial circumstances of either party. The trial judge reviewed the evidence of the respondent’s financial circumstances. The trial judge had the affidavit particularising the respondent’s costs, including a costs agreement. His Honour noted:
35.Having regard to the findings that [the appellant] did have an ulterior plan to wrest control of the children from [the respondent] and he was persistent, put the [respondent] to the dilemma of not only preparing material to show what he had done but also to respond to the various material that he provided and upon which he relied. Examples of the dilemma can be seen in respect of the evidence of Dr [L].
This challenge is not made out.
(c) That the primary judge demonstrated bias
The appellant argues that the trial judge was biased, in particular by making reference to the appellant’s pursuit of “shared care in litigation for 10 years”. He submits that his proposal for the parenting of the children was “far less extreme” than the respondent, and it could not be suggested that he was wholly unsuccessful.
The appellant did not make an application for the judge to recuse himself for apprehended bias at trial. The trial judge referred to the appellant’s conduct as the basis for justifying a costs order under s 117(2A)(c), and it was therefore necessary for the judge to have regard to his behaviour during the trial. This challenge is not made out.
Conclusion
The reasons given by the primary judge for the costs order and that they be on an indemnity basis were properly reflective of the litigation, and soundly based. It should be noted that the trial judge had the affidavit of the respondent’s costs attaching the costs agreement and the claim for the costs being in the sum of $350,000. The judge ordered that the appellant pay 50 per cent of those costs.
The discretion to award costs is wide and difficult to successfully challenge. In the case of In the marriage of I and I (No 2) (1995) FLC 92-625 the Full Court said (at 82,277):
Section 117 confers upon the Court a broad discretion in relation to costs. That discretion is one which the Court should not seek to fetter. As was pointed out by the High Court in Penfold v. Penfold (1980) FLC ¶90-800 at pp 75,053-75,054:—
``It is an accurate description of sec. 117(1) to say that it expresses a general rule, provided that it is firmly understood that the subsection is not paramount to sec. 117(2). As subsec. (1) is expressed to be subject to subsec. (2), the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Subsection (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs.''
In deciding whether the circumstances justify the making of an order for costs, the discretion to which we have referred must be exercised having regard to the matters set out in s. 117(2A) so far as they are relevant.
The appellant’s appeal against the costs orders of Cronin J must fail.
I will now deal with the other applications.
Application filed 23 May 2016 to discharge Respondent’s Solicitor
This matter is referred to last as it ultimately did not require a consideration of the substance of the matter.
The appellant filed with leave, an Application in an Appeal on 23 May 2016. The Application sought the following order:
1.That the First Respondent’s solicitor [Mr] Macphillamy be stood down from involvement in Appeals EA75/2015, EA107/2015, EA174/2015, EA156/2015 and EA51/2016 pending the determination of the Appellant’s Complaint for professional misconduct and contempt of court made against Mr Macphillamy to the [sic] on 17 May 2016.
In his affidavit in support, the appellant explains that he has made a complaint to the LSC about the respondent’s solicitor, for professional misconduct and contempt of court. The appellant annexes to the affidavit the complaint sent to the LSC on 17 May 2016. The complaint contains a number of allegations, dating back to 2010. The appellant has therefore waited six years before complaining about the respondent solicitor’s to the LSC. It is a reasonable inference that this action was another tactic to draw out these proceedings even further.
The Application and affidavit do not raise matters which concern this court. They contain serious allegations against the respondent’s solicitor with no real evidence in support. They raise matters dealt with in judgments, of which the appellant has not appealed or brought to the attention of the appropriate judge at that time. The allegations are a matter for the consideration of the LSC, not the court.
In addition, as properly submitted by counsel for the respondent, this application is not in connection with any orders the appellant seeks to appeal. If the basis is that an injunction ought be granted, preventing the solicitor from acting further, it is not so framed and there is no proper evidence in support.
At the hearing of this appeal, the appellant ultimately conceded that the better course was for the hearing of the appeal to proceed and he did not seek to have the application heard. However, there are costs implications.
Costs of the Appeals and Applications
There were a number of applications for further evidence, to delay the hearing, to review the Registrar’s decision and seeking to have the respondent’s legal representative removed. The respondent and CSR bore the expense of meeting all of these challenges, and indeed have borne the time and expense of litigation with the appellant in one form or another for the best part of 10 years.
Costs of the Costs Appeal EA156 of 2015 and the Child Support Appeal EA75 of 2015
Having regard to the discussion above, and the failure of the appeals and applications, the appellant should bear the costs of the respondents in hearing the two appeals. It is appreciated that the appellant is largely self-represented, but it cannot be ignored that the appellant has run a “wholly unsuccessful” appeal, well within the meaning of s 117(2A)(e).
Costs Appeal
The appellant raised 19 grounds of appeal in the costs appeal, many of which were not pressed or referenced in the summary of argument. The first respondent was required to respond to each ground raised, even though many of them were not proper grounds of appeal. The respondent has, therefore, borne the cost in answering the appellant’s unmeritorious appeal
The respondent properly seeks an order that the costs of this appeal be paid by the appellant. It is appropriate that the appellant bears the cost of this challenge, and pay the costs of the respondent, to be assessed.
Child Support Appeal
The appellant has 21 grounds of appeal in the child support appeal, contained in his Further Amended Notice of Appeal which was filed with leave and required the filing of supplementary summaries of argument from each of the parties. This leave was granted as an indulgence to the appellant to enable him to put his entire case forward.
With leave to appeal being refused, there being no merit, it is clear this indulgence has again caused considerable expense to each of the respondents.
The respondent and the CSR each seek the costs of and incidental to this appeal. It is appropriate that the appellant bears the costs incurred by both the respondent and the CSR, to be assessed.
Costs of the Applications
Overall, the appellant filed nine applications:
a)The three Applications to adduce further evidence in the child support appeal, filed 18 August 2015, 22 February 2015 and 14 April 2016;
b)The Application filed 28 April 2016 seeking to review the Appeal Registrars’ decision (which was subsequently discontinued);
c)The Application filed 23 May 2016 seeking to restrain the respondent’s solicitor from acting;
d)The Application for an extension of time to file a Notice of Appeal against the orders of Le Poer Trench J made on 19 February 2016 (EA51 of 2016); and
e)The three Applications that were before May J on 8 April 2016, the costs of which were reserved to this Court. These Applications include the Application filed 14 December 2015 seeking an extension of time to further amend the Notice of Appeal in the child support appeal, the Application filed 9 March 2016 seeking to vacate the appeal hearing dates in both appeals, and the Application filed 1 April 2016 which opposed the listing of the child support appeal and the costs appeal being heard together.
The respondent did not file a response, but in oral submissions her counsel opposed each of the applications.
The CSR filed various responses on 2 March 2016, 21 March 2016, 27 April 2016 and 20 May 2016.
In the Response filed 2 March 2016, filed in response to the appellant’s application filed 14 December 2016 to further amend his notice of appeal, the CSR sought costs. On 8 April 2016, May J reserved the issue of costs to the Full Court.
The Response filed 21 March 2016 opposed the applications for further evidence filed 18 August 2015 and 22 February 2016, and the application filed 9 March 2016 which sought to vacate the hearing dates. The CSR sought costs for each of these applications.
The Response filed 20 May 2016 opposed the appellant’s application for further evidence filed 14 April 2016 and the application to review the Appeal Registrar’s decision filed 28 April 2016. The CSR sought costs for each of these applications.
The Response filed 27 April 2016 opposed the appellant’s application for an extension of time to appeal filed 7 April 2016 (EA51 of 2016), and the application dated 25 April 2016 and filed 28 April 2016. This Application, which remains unfiled, was the subject of the appellant’s application seeking to review part of the Registrar’s decision to refuse to accept it for filing. In it, the appellant seeks to refer the counsel for the CSR to the “Bar Council for disciplinary action”. On these applications, the CSR seeks costs on an indemnity basis.
The respondent and CSR should each have their costs of the relevant applications.
As noted in the introductory section, the CSR and the respondent seek costs on an indemnity basis respectively on a number of applications. Costs are awarded on an indemnity basis where there are “special or unusual feature[s]…to justify the court in departing from the ordinary practice…” (per Sheppard J in Colgate-Palmolive v Cussons Pty Ltd (1993) 46 FCR 225).
Counsel for the CSR submitted that “that there must be consequences for the [appellant] for making egregious allegations of the sort that he has made” (Transcript 27 May 2016, p.49, l.39 – 40) which fall within the category of cases described in Colgate-Palmolive v Cussons Pty Ltd (supra).
There is considerable force in the submissions of the CSR, and also of the respondent in her oral submission. It is not, however, appropriate to award costs on an indemnity basis in relation to the child support appeal in the circumstances of this case.
I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 24 May 2017.
Associate:
Date: 24 May 2017
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