SH and BP
[2002] FMCAfam 302
•13 September 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SH & BP | [2002] FMCAfam 302 |
| FAMILY LAW – Child support – application for summary dismissal. Child Support (Assessment) Act 1989, s.115 Reid v Reid (1999) FLC 98-007 |
| Applicant: | H S |
| Respondent: | PJ B |
| File No: | PAM1372 of 2002 |
| Delivered on: | 13 September 2002 |
| Delivered at: | Parramatta |
| Hearing Date: | 21 August 2002 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Kearney |
| Solicitors for the Applicant: | Watts McCray |
| Solicitors for the Respondent: | Mr Karras Karras Partners Solicitors |
FEDERAL MAGISTRATES |
PAM 1372 of 2002
| H S |
Applicant
And
| PJ B |
Respondent
REASONS FOR JUDGMENT
This is an application by the Respondent for summary dismissal of an Application for a departure from the provisions of the Child Support (Assessment) Act 1989 brought by the Applicant wife. In the alternative, the Respondent seeks that the Court should decline to exercise its discretion to hear the Departure Application in conjunction with an application to vary certain contact orders filed by the Applicant Wife on 18th April 2002.
Background
The proceedings concern the parties’ child N, who was born on 11th October 1993. On 23rd December 1998, the Family Court of Australia at Melbourne made a number of orders by consent, providing that the child should live with the wife and that the husband should have contact with the child at certain times. Those orders have been registered at this Court.
On 18th April 2002, the wife filed at this Court an Application to vary those orders. The Application was returnable on 27th May 2002. The Application was adjourned by consent to 5th June, and then to 24th June 2002. On that latter date, the wife was represented by a solicitor,
Mr Watts, and the husband was not legally represented.
When the matter came before the Court on 24th June, after some discussions between the wife’s solicitor and the husband, some terms of settlement were prepared, which provided for final orders for contact covering most of the contact issues that were in dispute. The Court was informed by the wife’s solicitor that there were two issues relating to contact that were still unresolved, and an issue relating to the level of child support payable by the husband. The Terms of Settlement provided for the matter to be set down for hearing in respect of the Application “filed 27 May 2002” (although the Application was actually filed on 18th April, the 27th May was the return date). The Terms also contained the following Order:
“17. That the Mother be given leave to file an application pursuant to Section 115 Child Support (Assessment) Act.”
As a result, the Court made some directions for filing documents, and the matter was listed for hearing on Wednesday 21st August 2002. The wife did indeed file a Departure Application pursuant to the Child Support (Assessment) Act on 24th July 2002. She filed an amended Application on 20th August 2002.
The husband sought legal advice, and on 7th August 2002, his solicitors filed a Response seeking certain contact orders and certain orders about the child’s surname (which are irrelevant to the current application). The Respondent also filed an affidavit on that same date, as the Rules of this Court require him to do[i]. In paragraph 11 of that affidavit he refers to the Consent Orders made on 24th June 2002. In paragraph 12 of the affidavit, he goes on to say:
“Paragraph 17 of the June Orders gave the applicant leave to file an Application in relation to child support. I do not consent to the issue of child support being heard by the Court and I object to this course, given that the applicant and I have not had the opportunity to attend the Review and Objection procedures available through the Child Support Agency. I was not aware that these Agency procedures were available to me as a primary way in which to resolve any child support dispute, when I consented to the applicant being granted leave to file her Child Support Application at the time the June Orders were made.”
On 21st August 2002, the matter was listed for hearing.
Issues
The Respondent applied for summary dismissal of the Applicant’s Departure Application on the ground that the Court has no jurisdiction to hear the Application. In the alternative, the Respondent seeks that the Court should decline to exercise its discretion to hear the child support proceedings, either in conjunction with the contact proceedings, or at all.
The Applicant argues that summary dismissal is inappropriate, as the Court does not lack jurisdiction to hear the application. The Applicant also says that section 115(c) of the Child Support (Assessment) Act 1989 permits the child support application to be heard concurrently with the contact proceedings, so there is no reason for the Court not to hear the matter. In any event, the Respondent has already consented to this course of action, and orders have been made accordingly.
The Respondent argues that the section should be read in such a way that the Court should only hear the applications together if there is a commonality of subject matter. Here, it is argued, there is nothing more than a concurrence of hearing. As to the consent, the Respondent says that he only consented to the filing of the Departure Application, not to bypassing the review and objection procedures provided by the Child Support (Assessment) Act.
Summary dismissal
Division 13.3 of the Federal Magistrates Court Rules 2001 deals with summary disposal and stay of proceedings. Rule 13.10 gives the Court the power of summary dismissal of proceedings:
“The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that in relation to the proceeding or claim for relief:
(a) no reasonable cause of action is disclosed; or
(b) the proceeding is frivolous or vexatious; or
(c) the proceeding is an abuse of the process of the Court.”
Rule 13.09 provides that an application for an order that a proceeding be stayed or dismissed must be in the form of an application as set out in Part 1 of Schedule 2 of the Rules. No such application has been filed in this case.
In this case, it is not argued that the Child Support Application is frivolous or vexatious or that the proceeding is an abuse of process. The only ground upon which summary dismissal may be sought, therefore, is that the application does not disclose a reasonable cause of action.
The principles govern the exercise of the Court’s power to dismiss an application summarily have been considered by the High Court of Australia in Lindon v the Commonwealth (No.2) (1996) 70 ALJR 541, and by the Full Court of the Family Court of Australia in Bigg & Suzi (1998) FLC 92-799 and Ferrall v Blyton (2000) 27 Fam LR 178; FLC 93-054. It is clear that relief of this nature “is rarely and sparingly granted” Lindon v the Commonwealth (No.2), Kirby J at 544. The power should be reserved for those cases which cannot possibly succeed. If there is an arguable case, summary dismissal is inappropriate. Even a weak case is entitled to a hearing.
Section 115(c) of the Child Support (Assessment) Act gives the Court the power to deal with a departure application without the Registrar having made or refused to make a determination under Part 6A in the following circumstances:
“Where the child support is for a period beginning on or after
1 July 1992 and:
(i) the carer entitled to child support or the liable parent is party to an application pending in a court having jurisdiction under this Act; and
(ii) the court is satisfied that it would be in the interest of the carer and the parent for the court to consider, at the same time as it hears that application, whether an order should be made having the effect that the provisions of this Act will be departed from in relation to the child in the special circumstances of the case;”
It is clear that section 115 gives the Court the jurisdiction to consider a departure application at the same as it considers another application pending in the Court, provided that the Court is satisfied that it would be in the interest of the parties to do so. As the court has the jurisdiction, and the application is for payment by the father of a weekly amount of child support and half of the child’s school fees, it is inappropriate to dismiss the application on the ground that no reasonable cause of action is disclosed.
Exercise of the Court’s discretion
Notwithstanding the fact that the Court has the jurisdiction to hear a departure application at the same time as an application to vary parenting orders, the Respondent submits that the Court should not exercise its discretion to do so. This submission is made even though the Respondent consented to the Applicant being given “leave to file an application pursuant to section 115 Child Support (Assessment) Act”. The Respondent’s solicitor says that this consent order should be interpreted literally, as he put in his affidavit, meaning that the Respondent may well have consented to the application being filed but did not consent to the application being heard at the same time as the other proceedings, or at all. I am not persuaded that this is an acceptable proposition. The Applicant did not need leave to file the application, there was no reason why she should not file an application to deal with a matter that is within the Court’s jurisdiction. The Applicant only needed consent to hear the proceedings together.
I am satisfied that the Respondent, even though he was unrepresented, did in fact consent to the proceedings being heard together. It would create great difficulties for the Court if, as a general rule, parties could only be held to their consent if they were legally represented at the time.
Mr Karras, for the Respondent, has submitted that the Court should only exercise its discretion to hear a departure application at the same time as it hears another application between the same parties under the Family Law Act if there is some commonality of subject matter between the two applications, more than just the concurrence of hearing dates. In this regard, he referred the Court to a number of authorities.
Reid v Reid (1999) FLC 98-007, is a decision of the Full Court of the Family Court of Australia. In that case, the judge at first instance in the Family Court had decided to hear a Form 63 Application where the only matter before the Court was a Form 7 application which would not be dealt with for some time. The husband had indicated, and had always indicated, that he objected to the Court exercising jurisdiction, and wanted to have the matter dealt with by a Review Officer before the matter came to court. In that case, the Full Court held, at paragraphs 47 and 48 of the judgment:
“The intention of the legislature was that the departure order would normally be dealt with in circumstances described under section 115(b) – where there had been either the making or a refusal of a determination by the Registrar under part 6A. Section 115(c) was, however, introduced with the very sensible object of enabling the Court, in special circumstances, to deal with a departure application at the same time as other litigation already before the Court.
(48.) In this case, as at 30 January 1998, it is quite clear that there was no other matter before the Court, other than the Form 7, which certainly would not have been dealt with together with this application. His Honour therefore, at that stage, had no jurisdiction to entertain the matter.”[ii]
In my view, this case can be clearly distinguished from the fact situation in Reid v Reid, as there were already proceedings before this Court. I am satisfied that there was a valid consent to the departure application being commenced, and that it was always the situation that the proceedings would be heard together.
Delane and Hageraats (2000) FLC 98-012 is a decision of the Full Court of the Family Court, where a single judge of the Family Court had held that she had no jurisdiction to hear an appeal against a decision of the Local Court of New South Wales. The parties had brought civil proceedings against each other under NSW legislation and the mother had brought a departure application under the provisions of the Child Support (Assessment) Act. The other proceedings under the State legislation settled, but the departure application remained a live issue. The lawyers for both parties told the Magistrate that they agreed the departure application should proceed. The Magistrate made an order for lump sum child support, and the father then sought to appeal to the Family Court.
When the appeal came before the Family Court, the judge held that there was no jurisdiction to hear the mother’s departure application and so she dismissed the application. The Full Court held that the restrictions placed on the Family Court exercising its original jurisdiction by reason of the provisions of section 115 of the Child Support (Assessment) Act did not apply when the Court was exercising its appellate jurisdiction.
In his judgment, Kay J referred to the Full Court’s decision in Reid, saying that the mere existence of a Form 7 application between the same parties was insufficient to overcome the jurisdictional prerequisites of section 115:
“Unless the pending proceedings were heard at the same time as the departure application it was mandatory to proceed through the administrative review processes before commencing an application in the court.”[iii]
His Honour went on to refer to situations where it would be appropriate for a Court of Summary Jurisdiction to hear and determine an application under s.115:
“There may be pending before the Local Court a series of interwoven issues which canvass exactly the same facts and circumstances as the child support proceedings. The parties may be more than content that the magistrate exercise jurisdiction which the magistrate does.”[iv]
I am not satisfied that this passage should be taken to mean that this Court should apply a restrictive view of the type of proceedings pending between the parties before deciding whether to exercise jurisdiction pursuant to s.115(c). It should be recalled that his Honour was dealing with a matter where there had been proceedings between the parties under State legislation which had settled, leaving only the departure application. The matter before this Court is not on all fours with the matter that came before the Magistrate in the Local Court. The pending application relates to the child of the marriage, who is the child for whom child support is payable.
McGuinness v Cowie [2002] FamCA 461 is a decision by Kay J on an application for leave to appeal against a decision of the Federal Magistrates Court pursuant to section 102A of the Child Support (Assessment) Act. The Federal Magistrate had dismissed an application for a departure from administrative assessment of Child Support pursuant to Division 4 of Part 7 of the Act which had been commenced simultaneously with an application for child support to be paid otherwise than in the form of periodic amounts, namely by a lump sum, pursuant to the provisions of Division 5 of Part 7. The Federal Magistrate had held that the application for a lump sum filed in the same application could not be regarded as “pending proceedings”.
In his judgment delivered on 4th July 2002, Kay J held that the lump sum application was capable of standing on its own and that there is no requirement to approach the Registrar via Part 6A in respect of an application pursuant to Division 5 of Part 7. That being so, there was no requirement to object before asking the Court for relief. Hence, a Court may entertain both a lump sum application under Division 5 of Part 7 and a departure application under Division 4 of Part 7 contained within the one document if it chooses to exercise its discretion to do so.
In considering the 1992 amendments to the Act, Kay J said that “It was still thought appropriate to leave the court with a discretion to deal with a departure application where it was obvious that the parties were already before the court for other purposes.”[v] His Honour went on to refer, at paragraph 49, to a genuine dispute on the issue of spousal maintenance, where the court would also have jurisdiction to an application concerning child support that had been filed contemporaneously.
Conclusions
I am satisfied that the Respondent consented to the applicant commencing proceedings for a departure from administrative assessment of child support for the child of the marriage. There was, at the time, a pending application for variation of contact orders regarding the child. The proceedings can be heard together in this Court, and I am satisfied that it would be in the interests of the parties for the proceedings to be heard at the same time.
The application by the Respondent to dismiss the Amended Departure Application filed on 20th August 2002 is refused.
The application by the Respondent that the Court should decline to exercise its jurisdiction under section 115(c) of the Child Support (Assessment) Act is also refused.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: A. Coutman
Date: 12 September 2002
[i] Federal Magistrates Court Rules 2001, Rule 4.05
[ii] at 95,307
[iii] at 95,464
[iv] ibid
[v] at paragraph 38 of the judgment
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