Simmons and Simmons and Anor
[2017] FCCA 15
•20 January 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMMONS & SIMMONS & ANOR | [2017] FCCA 15 |
| Catchwords: CHILD SUPPORT – Application for extension of time in which to bring appeal from child support decision of the Administrative Appeals Tribunal – whether delay explained – whether delay needs to be contumacious – whether “less restrictive” approach applies in child support matters – delay not adequately explained – cases cited by counsel not establishing the general propositions asserted – proposed grounds of appeal wholly deficient in merit – application for extension of time dismissed. |
| Legislation: Administrative Appeals Tribunal Act 1978 (Cth), ss.44AAA, 44(2A) Family Law Act 1975, ss.66E, 94AA Federal Circuit Court Rules 2001, r.16.05 |
| Cases cited: Babett & Falconer [2015] FamCAFC 124 Bassingthwaite & Leane (1993) FLC 92-410 B & M [2004] FMCAfam 161 Gallo v Dawson [1990] HCA 30 Gilmour & Gilmour (1995) FLC 92-591 Hunter Valley Developments v Cohen [1984] FCA 116; (1984) 3 FCR 344 Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 Mee & Ferguson (1986) FLC 91-716 Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274 MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 Outboard MarineAustralia Pty Ltd v Byrnes [1974] 1 NSWLR 27 Richardson & Older [2008] FamCA 43 Venson & Venson [2010] FamCA 501 |
| Applicant: | MR SIMMONS |
| First Respondent: | MS SIMMONS |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 10793 of 2013 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 11 November 2016 |
| Date of Last Submission: | 11 November 2016 |
| Delivered at: | Melbourne |
| Delivered on: | 20 January 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bacon |
| Solicitors for the Applicant: | Manby & Scott Lawyers |
| Counsel for the First Respondent: | Mr Lynch |
| Solicitors for the First Respondent: | Peter Lynch |
| Counsel for the Second Respondent: | Ms Johnson |
| Solicitors for the Second Respondent: | Mills Oakley Lawyers |
ORDERS
The application for an extension of time filed by the Applicant dated 22 September 2016 be dismissed.
In relation to the proceedings before Judge Bender on 30 August 2016, the Applicant pay the First Respondent’s costs in the sum of $1,000 and the Second Respondent’s costs in the sum of $500.
In relation to the proceedings before Judge Burchardt on 20 January 2017, the Applicant pay the First Respondent’s costs in the sum of $3,478 and the Second Respondent’s costs in the sum of $3,478.
The costs to be paid by the Applicant in Order 2 and 3 herein be paid within 60 days.
IT IS NOTED that publication of this judgment under the pseudonym Simmons & Simmons & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10793 of 2013
| MR SIMMONS |
Applicant
And
| MS SIMMONS |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introductory
The applicant father has filed a notice of appeal on 22 September 2016 seeking to appeal, pursuant to s 44AAA of the Administrative Appeals Tribunal Act 1978 (Cth) (“the AAT Act”) a decision of the Tribunal dated 24 January 2016. Although there is some dispute as to the details, it is common cause that the application is out of time. Pursuant to s 44(2A) of the AAT Act, the time limit for appeals is 28 days from the date of decision being given to the person “or within such further time as the court allows”.
Although there has been some debate before me as to what the applicable law actually is regarding extensions of time in these circumstances, a matter to which I will return, I am of the clear view that it is inappropriate to exercise the court’s discretion to extend time and the application will, therefore, be dismissed.
The procedural history of the matter
This proceeding emerges, in part, from the orders made by Judge Connolly in 2014, to which it will be necessary to return. The current tranche of litigation was commenced by the father’s initiating application filed on 8 July 2016. That application relevantly sought that the orders made by Judge Connolly on 21 October 2014 be varied by the addition of a sentence which would have had the effect of extinguishing any obligation on the father’s part to pay private school fees and costs for the parties’ children. Alternatively, it was put that any leave required by the rules of this court be given and the matter dealt with under s 44AAA of the AAT Act. An interim order was sought that the father’s obligation to pay ongoing child support, to the extent that such sums exceeded $30 a week, be stayed.
The matter was heard by Bender J who gave ex tempore reasons for judgment on 30 August 2016. Her Honour dismissed the application I paraphrased above and ordered that the application for leave to appeal out of time against the decision of the Administrative Appeals Tribunal (“AAT”) dated 7 March 2016 be listed to 18 November 2016 and that the Child Support Registrar be joined as second respondent. Her Honour also directed that the father file and serve a Notice of Appeal and supporting affidavit in relation to the application for leave to appeal out of time by a given date, which the father did by lodging the Notice of Appeal referred to above. Her Honour’s reasons for judgment make it clear that she was not disposed to accede to the application then before her seeking to set aside the extant orders pursuant to r 16.05 of the Federal Circuit Court Rules 2001 (Cth). She also upheld the submission of the Child Support Registrar that the application filed by the applicant was not in proper form, which led to the procedural orders which have given rise to the Notice of Appeal. It should be noted that the reference to leave to appeal is somewhat misleading. This is not an application for leave to appeal from an interlocutory judgment in the ordinary sense. Rather, it is an application for an extension of time in which to bring an appeal that otherwise would have been available pursuant to s 44AAA of the AAT Act.
The materials filed by the parties
The father filed a Financial Statement contemporaneously with his application. It shows net personal expenditure of $1350 a week against total average weekly income of $1250 per week. He deposed to owning a property at (omitted) worth an estimate of $275,000 and his business, (omitted), worth an estimate of $150,000. His liabilities include a $50,000 loan from the (omitted) Bank described as “moneys borrowed to pay respondent” and $42,000 in respect of the hire purchase of a vehicle.
The father’s affidavit deposed to the parties’ marriage in (omitted) 1999, separation in November 2012 and divorce on 21 June 2014. They have two children, X born (omitted) 2000 and Y born (omitted) 2003, who reside equally with the parents.
The father deposed that his current child support liability is $9199 per annum as a result of a decision of the AAT dated 7 March 2016. He also deposed to orders made on 11 February 2014 and 21 October 2014 by Judge Connolly. All of those matters are annexed to the affidavit. The affidavit asserts correctly that the case is mainly concerned with private school fees for the children.
Both children attend (omitted) School and were enrolled there before separation by mutual consent. The costs are about $10,000 per child per annum. The affidavit refers to a Notation to the February 2014 orders which noted that each party would equally bear the cost of all the children’s educational and medical expenses, relevantly including school fees.
The father went on to depose that shortly after the February 2014 orders were made he became aware that he was likely to receive an inheritance from his parents of somewhere in the order of $500,000. This became an issue in the property settlement dispute that was ongoing at the time. The father deposed that the dispute was settled on the basis that “I made a lump sum payment to the respondent of $50,000 and that payment was to be used by the respondent as my share of the children’s private school costs going forward.”
The affidavit asserted that this agreement was then embodied within the orders made in October 2014 which had various relevant provisions to which I shall return. Essentially, the father’s case as set out in his affidavit at paragraph 6 was:
I considered the effect of the second orders, as far as private school fees was concerned, was that I had “prepaid” those and that the respondent would henceforth be solely liable for those costs.
I subsequently borrowed the $50,000 involved and paid those funds to the respondent. I am still paying that debt back. When I did finally receive my inheritance it was a much lower figure than what I had based my negotiations with the respondent on - I received about $350,000 and not $500,000.
Unsurprisingly, the father went on to depose that he felt that it was not now practicable to send the children to private schooling, owing to the cost and the history which gave rise to the AAT’s decision from which this current notice of appeal springs.
The affidavit went on to seek to explain the delay in the application. The father deposed that he simply did not register the 28 day time limit set out in the Tribunal’s letter to him which accompanied the notice of the decision (annexure 2). The time limit is indeed, I would interpolate, entirely clear. The father deposed that he just did not register this time limit. He went on to say at paragraph 14 of his affidavit:
When I first saw my current lawyers (at the end of May 2016) we decided to put our energies into negotiating this matter with the respondent. It was only after those negotiations failed that we considered litigation. Litigation was not something I wanted to rush into.
Otherwise, the affidavit went on to assert errors of law in the Tribunal’s decision and an absence of prejudice to the mother in the event that the appeal succeeded.
The mother’s responding material
The mother’s response, filed 26 August 2016, unsurprisingly sought the dismissal of the application brought by the father. There are some minor but not relevant differences in the recitation of the dates of separation and the husband leaving the matrimonial home. The affidavit corrected X’s date of birth to (omitted) 2000 (not (omitted) 2000) but confirmed the week about arrangements for the children to live with their parents.
The affidavit then goes on to give the history of the proceedings annexing the orders made in February and October 2014 and the child support assessments that have given rise to this matter. She set out the unsurprisingly lengthy history whereby the AAT’s decision was reached.
Much of the rest of the affidavit is argumentative and self-serving, putting what the mother described as “my version of this case”. It is clear that the mother has paid the school fees in 2015. The father paid half school fees for X from the beginning of 2013 to the end of 2014 and then refused to pay further. The mother has been assisted by a bursary but plainly the payment of school fees is a significant impost. Essentially, the mother’s position is that the 2014 settlement including the $50,000, which the husband has treated as a business loan, was about property matters only and that the issue of child support was not, in any way regulated by that outcome. The mother’s Financial Statement lodged contemporaneously is not in any view of any present moment.
Further matters
The father’s Notice of Appeal seeks “any leave for this appeal to proceed be given” and that the matter be remitted to the AAT for re-hearing by a differently constituted Tribunal. Two grounds of appeal are raised. The first asserts an error on the Tribunal’s part in having regard to the receipt by the father of the inheritance of $375,000. The second asserted error arises from the Tribunal’s finding that the mutual intention the parents were required to have before one of them could be required to contribute to a child’s private school education costs “was fixed in time and could not change as their financial or other circumstances altered”.
The father filed a further affidavit on 22 September 2016. He commenced by seeking to explain the delay in his application. He deposed to having always suffered from depression and having what he described as a nervous breakdown after the death of his mother in 2012. He deposed that following the death of his father in 2014 and the dispute before the courts in the same year meant that he simply overlooked the 28 day time limit in the AAT appeal. He deposed (at paragraph 3):
At some point after receiving the Administrative Appeals Tribunal’s decision I did seek out legal assistance. I spoke to various lawyers and wanted Moores Legal to act for me. During the negotiation process though I had a disagreement with Moores about fees and did not take the issue any further.
The father went on to exhibit as 1 a report from his doctor, Dr B dated 13 September 2006 in respect of his medical condition.
The father then deposed to a reluctance on the part of his lawyers whom he consulted in May 2016 to commence proceedings before negotiation, which occurred but was ultimately unsuccessful. Otherwise, the affidavit asserts the merits of the substantive application and an absence of prejudice on the part of the mother in the event that the extension of time were to be granted.
The report of Dr B
The report dated 13 September 2016 is short. It asserts that the father has a history of depression since March 2012. He was referred to a consultant psychiatrist, Dr S, in May 2012. There was a recurrence of depression in July 2014 when the father’s father died. He had a recurrence of stress and anxiety when seen on 18 August 2015 and was once again restarted on Pristiq. The dosage was increased on 8 December 2015 and it was noted that the father had symptoms of bad snoring and excessive tiredness and was referred for investigation of possible sleep apnoea. On 30 January 2016, the dose of Pristiq was reduced due to perceived side-effects. The father was requested to return to Dr B if he had continuing problems. He was diagnosed as having severe sleep apnoea on 29 February 2016 and was next seen about depression in “August this year”.
Dr B asserted that “depression can reduce a patient’s ability to be motivated and deal with problems i.e., court cases, and also to avoid stressful situations i.e., court cases. Sleep apnoea compounds the previous problems because of excessive tiredness and aggregation of lowered mood.”
The mother filed a responding affidavit on 17 October 2016. Much of this affidavit consists of legal argument and commentary that really should have been left to submissions. I note that at paragraph 13 the mother deposed:
in any case I say that the husband’s inheritance of $375,000 which was used to immediately purchase a house, should have formed some contribution to the educational fees. I believe that the applicant is not living in the house that he purchased and is renovating it but he is actually living in his parents’ house.
The affidavit went on to make criticisms of the alleged excuse on the basis of depression for the delay in the notice of appeal, and outlined the following actions undertaken by the father during the relevant period:
a)issuing applications for property and children orders in 2013 and resolving both these applications at two separate court hearings in 2014;
b)initiating two appeals to the Child Support Agency and the appeal to the AAT in 2015;
c)purchasing a property in 2016;
d)issuing initiating proceedings in the Federal Circuit Court in July 2015;
e)further issuing a Notice of Appeal and affidavit in September 2016.
Otherwise, although a fair amount is said, nothing of any moment is added.
The submissions made at court
It should be noted that all parties agreed that the matter should proceed by way of submissions only. The second respondent had, in fact, filed a very helpful and compendious set of written submissions in any event.
The submissions of counsel for the father
Counsel conceded that his client had 28 days to file an appeal against the AAT decision of 24 February 2016. He did not, in fact, file until 8 July 2016 so there was a slightly in excess of four month delay on his part. Counsel confirmed that the heart of the matter was the payment of school fees. Counsel referred to the father’s explanation for his delay in his affidavit filed 22 September 2016. He went on to make the following submission at P-3:
the general rule, your Honour, in my submission as regards these cases is that leave should be given in family law cases unless the lapse is contumacious.
In support of this proposition, counsel referred to a decision of Venson & Venson [2010] FamCA 501 (“Venson”). This was a case involving an application to extend time for the filing of an itemised bill of costs. At [68], Austin J said:
The parties are familiar with the authorities governing the exercise of such discretion, because they were cited in the prior proceedings between them when the time within which the wife was permitted to apply for a costs order against the husband was extended. The power to extend time is discretionary, so as to enable the court to do justice between the parties (Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 at 480; Marriage of Tormsen (1994) 18 Fam LR 232 at 235-236), and the power will normally be exercised unless the non-compliance is contumacious, or the lapse of time is such that the other party has suffered irremediable prejudice (Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWLR 27 at 30; Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [50-58]; Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 at [16-17]).
Counsel went on to submit at P-4:
Now, the general rule in family law cases, your Honour, in my submission is even looser in child support litigation. There is a recent Full Court authority, Babett & Falconer.
Although counsel was able to cite the citation of the case, he did not have a copy with him but he continued at P-4:
because it simply says, and this is a relatively well-known principle, in my submission, when the issue of leave comes up in child support cases, the court should take a less restrictive approach, is the phrase the Full Court uses in child support litigation.
I then questioned counsel as to whether that case involved an extension of time or whether it was an application for leave to appeal. Counsel said it was an appeal from various departure orders made by Judge Scarlett but when I pressed the question, when I asserted at P-5 “So it didn’t touch on the extension of time; it touched on the question of leave to appeal,” counsel responded. “Well, it touched upon the extension of time in that the appeal to the Full Court was late, and their Honours said in child support cases there is generally considered to be a less restrictive approach.”
Having obtained a copy of Babett & Falconer [2015] FamCAFC 124 (“Babett”) and some of the cases referred to in that decision, it was apparent that counsel’s assertion that the case involved an extension of time was erroneous and that the matter was concerned with an application for leave to appeal child support departure orders. I will return to this aspect of the matter.
Counsel went on to assert that the decision of this court in B & M [2004] FMCAfam 161 was authority for the proposition that even if the reasons for delay deposed to by the father were not particularly strong in an appropriate case that could be overlooked. He also submitted that the applicant’s case should be looked at “at its highest”. While it is true that in Richardson & Older [2008] FamCA 43 at [11] Fowler J, looking at an application under s 105 of the Child Support (Assessment Act) 1989 (Cth) (where leave is required for an appeal from a court of summary jurisdiction of a State to the Family Court) Fowler J asserted, “It is not for me on an application for leave to make final determinations of fact but, rather, whether taking the applicant’s case at its highest there is an arguable case”, this was a throwaway line. While in this case there has been no cross-examination of the witnesses, and it is plainly necessary to consider that the applicant may make good the facts he asserts, given the nature of the materials before the court it is a matter not of making every possible assumption in the father’s favour, but rather approaching the materials in an objective way.
Otherwise, the applicant’s submissions press the grounds of appeal as articulated, to which I shall return.
The submissions of the second respondent
Counsel for the second respondent, of course, had already filed very helpful and extensive written submissions. These were the subject of further elaboration in oral submissions. I note that the position adopted by counsel was that principles governing the extension of time were an essentially classic administrative law point governed by the principles in Hunter Valley Developments v Cohen [1984] FCA 116; (1984) 3 FCR 344 (“Hunter Valley Developments”). Otherwise, both her submissions and those of the counsel for the mother essentially supported the written submissions made.
The principles governing extensions of time in an administrative law context
In my opinion, an appeal pursuant to s 44AAA of the AAT Act might well be described as an almost classic administrative law situation. The principles set out by Wilcox J in Hunter Valley Developments, in my opinion, will necessarily apply unless there is binding authority to the contrary. They have been set out in a variety of ways but have recently been encapsulated by Moshinsky J in MZZFQ v Minister for Immigration and Border Protection [2016] FCA 1133 at [10] as follows:
The principles applicable to an application to extend time are well established. The factors which the Court should take into account include whether there is an acceptable explanation for the delay, the length of the delay, the merits of the appeal, and any prejudice to the respondent, albeit that the mere absence of prejudice is not sufficient: see Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; SZTRY v Minister for Immigration and Border Protection [2015] FCAFC 86 at [6] per Flick, Griffiths and Perry JJ.
The obvious question that arises is what is then to be made of the decision of Austin J in Venson which I have set out above. It is important to remember what it was that his Honour was actually considering for these purposes. What his Honour was concerned with was an application for an extension of time within which the wife was seeking to serve upon her husband an itemised bill of costs pursuant to orders made in her favour on 18 December 2009. It is immediately apparent that an extension of time for the purpose of quantifying a cost order is, in substance, a significantly different matter to an application for the lodgement of an appeal affecting substantive rights.
Austin J’s reference at [68] to Gallo v Dawson [1990] HCA 30 is, with respect, unsurprising. It is a case often quoted in support of the proposition that the power to extend time is discretionary, so as to enable the court to do justice between the parties. It is important to turn then to the three authorities his Honour cited in support of the proposition that “the power will normally be exercised unless the non-compliance is contumacious”.
At [16] to [17] McColl JA, with whom Mason P and Davies AJA agreed, relevantly said:
In Maitland v Nationwide News Pty Ltd [2004] NSWCA 155, in considering whether the discretion to extend time for leave to appeal ought to be granted, the Court is concerned to determine whether strict compliance with the rules will “work an injustice” upon the complainants; Gallo v Dawson [1990] HCA 30; [1990] 93 ALR 479 at 480 per McHugh J. In Outboard Marine Australia Pty Limited v Byrnes [1974] 1 NSWLR 27 at 30 the Court of Appeal (Reynolds, Hutley and Bowen JJA) held that “where genuine issues ought to be litigated, if such can be done with fairness to all concerned, it is appropriate to take a benign view of applications to extend time”.
It is relevant to consider the prospects of the success of appeal. If it is clear that the appeal will fail in the sense that it is not arguable or not fairly arguable, that may militate against granting an extension of time: Jackamarra v Krakouer [1998] 195 CLR 516 at 529 [34] per Gummow and Hayne JJ (who dissented in the result but not in the principle to be applied in determining the outcome).
The other case quoted by Austin J, Micallef v ICI Australia Operations Pty Limited & Anor [2001] NSWCA 274 (“Micallef”) does not appear to be have been cited in Maitland v Nationwide News Pty Ltd [2004] NSWCA 155 (“Maitland v Nationwide News”). This was a Court of Appeal decision in dealing with a case where a judge of the District Court of New South Wales had dismissed an application for want of prosecution. The decision of Heydon JA (as his Honour then was) in which Sheller JA and Studdert AJA concurred, relevantly starts at [50] where his Honour said:
The complaint is that Garling DCJ could not have made the orders unless the plaintiff’s default had been “intentional and contumelious”, or unless there had been “an inordinate and inexcusable delay” giving rise to “the substantial risk that a fair trial would not be possible resulting in serious prejudice to the Defendants”.
His Honour continued at [51]:
First, the tests propounded are not part of the law in New South Wales. The tests propounded are similar to, but not identical with, those formulated by Lord Diplock in Birkett v James [1978] AC 297 at 318:
“The power should be exercised only where the court is satisfied either (1) that the default has been intentional and contumelious, e.g., disobedience to a peremptory order of the court or conduct amounting to an abuse of the process of the court; or (2) (a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party.”
Essentially, Heydon JA’s decision at [51] makes it clear that the restrictive approach to the dismissal of proceedings, in the manner in question suggested by the English authorities, was not the law to be applied in New South Wales (and I would infer Australia). His Honour pointed out that the discretion was at large, bearing in mind all relevant circumstances.
While that case involved a summary dismissal for want of prosecution, his Honour’s remarks at [64] are, in my respectful view, relevant:
More recently, this rhetoric has been converted into action in Australia as courts have come to appreciate that they have their own interest in ensuring compliance with time limits [Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 153-154]. Court lists are typically more congested today. This fact and a growing awareness about the needs for efficiency in judicial administration help to explain a somewhat diminished inclination, recently, to extend procedural indulgences. Yet even today, rules and efficient case management must not be seen as ends in themselves. The ultimate obligation of a court is the attainment of justice as the law requires [Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154, 172].
It is thus apparent that the authorities quoted by Austin J are not really all to the like effect. The observations made in Outboard MarineAustralia Pty Ltd v Byrnes [1974] 1 NSWLR 27 are now 42 years old. Even those in Maitland v Nationwide News are 12 years old. The reality is that there is nothing in the AAT Act that bears in terms upon an application of the sort with which the court is concerned in this instance. The particular application with which Austin J was dealing is one of a markedly different character in which a successful party was seeking to enforce an award previously made in their favour. This is a strongly contested application between two parties in circumstances where, to the extent that there has been any prior determination, it favours the respondent mother.
In the circumstances, I am going to apply the observations set out in Hunter Valley Developments which, in my respectful view, ultimately amount to the same propositions referred to by Heydon JA in Micallef. I do not accept that it is necessary to show that the conduct of the father has been contumacious.
Should the court apply an even less restrictive approach, given that this is a child support matter (counsel for the father’s submission, transcript P4).
The case relied upon by counsel for the father in this regard is Babett.
This was, of course, relevantly an application for leave to appeal a child support departure order pursuant to s 94AA of the Family Law Act 1975. The Full Court of the Family Court said at [60] – [61]:
Authority suggests that a “less restrictive approach” might be applied to applications for leave to appeal a child support departure order than that applicable to applications for leave pursuant to s 94AA because “... the order sought to be appealed involves substantive rights or liabilities in relation to child support” (See Bassingthwaite & Leane (1993) FLC 92-410, 80,198; Gilmour at 81,843).
For the reasons which follow, we are in any event persuaded that in making the child support departure order which he did, his Honour made errors of principle which result in a substantial injustice to the husband. Leave to appeal should be granted.
It should be noted that there was no question of any extension of time application in that case. Furthermore, the Full Court had already summarised at [3] to [5] errors on the part of Judge Scarlett both as to mathematical error, inadequacy of reasons for judgment and an inconsistency of findings, in respect of which the Full Court concluded:
As will be seen, we consider that there is also merit in the challenges to this order and that substantial injustice would result if leave to appeal was not granted.
The Full Court’s observations about a less restrictive approach must be seen in the context of those findings.
In one of the cases quoted by the Full Court in Babett, namely Bassingthwaite & Leane (1993) FLC 92-410, the Full Court of the Family Court asserted at p 80,198:
In Rutherford, the Full Court adopted the principles in relation to the granting of leave to appeal as set out by the High Court in Adam P. Brown Male Fashions Pty Ltd v Phillip Morris Inc & Anor [1981] 148 CLR 170. These principles were that the appellant must show an error in principle and/or the fact that the decision appealed from caused the appellant substantial injustice.
The application for leave in Rutherford was pursuant to Section 94AA of the Family Law Act 1975 which requires leave to appeal against interlocutory orders except in child welfare matters. When the High Court considered the principles in Adam P. Brown Male Fashions, the judgment of Gibbs CJ, Aicken, Wilson and Brennan JJ based their decision on the fact that an interlocutory order is a matter of practice and procedure and that Appeal Courts should exercise particular caution in reviewing decisions pertaining to practice and procedure.
In this case, the application for leave to appeal is brought pursuant to Section 102 of the Act. The order appealed from is not an order of practice and procedure but a substantive order. For this reason, we consider that perhaps the principles enunciated in Rutherford may be too restrictive for appeals against substantive orders made under the child support legislation. In the event, in this case we are of the opinion that the order appealed from did cause a substantial injustice to the appellant and that for this reason the application for leave to appeal to succeed.
In Gilmour & Gilmour (1995) FLC 92-591, a further Full Court said at p. 81-843:
However, in granting leave for the reasons we have in this case, we would not want to be taken as saying that the grounds upon which leave to appeal an order made under either of the Child Support Acts are necessarily the same as the limited grounds upon which leave will be granted in respect of an interlocutory decree under Section 94AA of the Family Law Act. Indeed, we would endorse the suggestions made in Bassingthwaite and Best that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities in relation to child support. In so doing, we would, however, draw attention to the unreported decision of Conn v Martusevicius (delivered in Melbourne on 9 June 1992) in which, in dismissing an application for leave to appeal pursuant to Section 102 of the Assessment Act, both Barblett DCJ and Nygh J in separate judgments expressed the view that the same principles which apply to applications for leave to appeal under Section 94AA of the Family Law Act (being the principle stated in Rutherford) should apply to applications for leave to appeal under Section 102 of the Assessment Act.
In other words, even in that decision the Full Court pointed to yet further Full Court decision which would not have embraced the less restrictive approach to which reference was made.
In the end, I think that this aspect of the submissions should be dealt with fairly shortly. The observations, plainly made in a qualified way and arising out of the particular circumstances of the individual cases, by various Full Courts simply stand for the proposition that in considering applications for leave to appeal under the Child Support (Assessment) Act1989, substantive matters which involve substantive rights might involve a less restrictive approach. This, however, is not an application for leave to appeal. It is an appeal, as such, in which the issue is whether time should be extended. It does, of course, involve a matter of substance. It does not involve a purely procedural matter. Nonetheless, it needs to be borne steadily in mind that appeals from the AAT of this character are required to identify an issue of law. It is not an appeal as of right.
I should record that the court has not been assisted in this instance by the rather misleading citation of authority on several occasions by counsel for the applicant. It has been necessary to go through the case law in quite some detail to correct the misassertions made by counsel. It is not the case that in every instance delay in bringing an application should be countenanced unless it was contumacious. It is not the law that family law appeals are generally less restrictive and it is not the law that this is even more so the case in child support proceedings. There is nothing in the AAT Act that says so. There is nothing in either of the Child Support Acts that says so either.
Has the delay been satisfactorily explained
Dr B was not required for cross-examination. I therefore accept his evidence as far as it goes. From this it is clear that the father has suffered from depression since March 2012 which has, at times, been significant. It seems as though he was not seen by Dr B from February of this year until August of this year, although he was treated by a specialist for sleep apnoea in February of 2016.
The father has deposed that he simply failed to notice the 28 day time limit so clearly set out in the letter to him from the AAT. I am prepared to give him the benefit of the doubt, bearing in mind that the letter was sent on 7 March 2016, a date only shortly after his last consultation with Dr B.
Nonetheless, the other aspects of the father’s explanation are, in my view, less compelling. He has, as the mother points out, been able to conduct significant tranches of litigation throughout the period of his depression. He consulted his current lawyers in May 2016 and at a point before that had consulted Messrs Moores, with whom he had a disagreement about fees. It is reasonable to infer that he was well aware of the time limit at some antecedent point. The further suggestion that an application was not brought in May because it was thought preferable to negotiate, only goes to show that the father took a decision of his own motion not to file his application. While understandable at one level, given the protracted litigation between the parties, it was not reasonable for the father to assume that a negotiated outcome would be likely.
Taking all these matters together, I would say that the father’s explanation for the delay is by no means wholly convincing.
It needs to be borne in mind that the appeal should have been lodged by early April. It was not, in fact, lodged until 22 September 2016. In his regard, however, I note that the father did, in fact, seek to challenge the AAT outcome by his initiating application lodged 8 July 2016. Even that date, however, represents a period three times longer than the appeal period itself. As was pointed out by Wilcox J in Hunter Valley Developments, prima facie time limits should be complied with. A delay of this order is not at the outer parameters of the excessive by any means, but it is still substantial.
Prejudice to the respondent
The prejudice to the mother in the event that the applicant is granted an extension of time is obvious. She will have to expend substantial further sums in litigating this matter. Indeed, if the father is successful the matter will be remitted for yet further hearing before the AAT. This is not just a question of money. The stress upon her (and indeed upon the father also) of further litigation would obviously be significant, although I note that the father has not been, in any way, dissuaded from bringing such litigation thus far.
Merits of the substantive application.
It is common cause that an appeal under s 44AAA is limited to an appeal on a question of law. The particular questions of law must be stated with sufficient precision. I will take the matters asserted in turn.
The father’s inheritance
The ground of appeal asserts
At paragraph 52 of its reasons, the AAT erred in law in factoring into its decision making that the applicant had received an inheritance of $375,000. The AAT used the fact that the applicant received those funds to justify an increase in his periodic child support. The AAT was aware of the property settlement orders in place between the payer and payee of child support. The AAT was aware that those orders were made in contemplation of the applicant receiving this inheritance and the applicant had therefore accounted to the 1st respondent from those funds. The property settlement orders further noted that the 1st respondent would make no further claim upon the applicant’s assets. In these circumstances, the AAT should not have taken the inheritance into account in arriving at its decision. The AATs decision to take the inheritance into account does not reside within the bounds of legal reasonableness.
In oral submissions, counsel for the father characterised this as a Wednesbury unreasonableness ground. Put shortly (and the matter was put shortly) it was submitted that in the face of the bargain the parties had entered into the Tribunal could not, in any reasonable way, ever have taken the inheritance into account.
The written submissions of the second respondent, which were wholly supported by the mother, submit that the two Notations to which counsel referred in the April and October 2014 orders were not binding on either party nor on the AAT. I disagree with the former but the latter is more complex. The more telling submission is that at paragraph 27 of the Registrar’s written submissions. On their face, the consent orders entered into between the parties did not, in any way, seek to deal with child support. Indeed, s 66E of the Family Law Act 1975, as the submissions assert, prohibits the court from making any orders in relation to child maintenance given that the parties could have applied for an administrative assessment of child support under the Child Support (Assessment) Act 1989. What the orders did in 2014 was to arrive at a property settlement between the parties that was considered by them to be just and equitable.
The orders made in February 2014 had a Notation that, effectively, all the costs of the children’s education or medical expenses would be shared equally between the parties. The evidence discloses that at the time the orders were made X was already at the private school with which we are now concerned, by consent of both parents. To the extent that the Notation would inform any conclusion, it would be that the father had indeed agreed to pay school fees for both children, especially since he did, in fact, pay, as the mother’s uncontradicted affidavit suggests, fees for X for 2013 and 2014. That impression is only further reinforced by the fact that the Notation as to the children’s educational expenses is contained in the interim parenting order section of the orders and not in the interim property orders section.
The orders made in October 2014 are a global settlement between the parties in respect of their property interests. By order 3, the husband was to pay the wife the sum of $50,000 but there is nothing in the order characterising what that payment was for. Such payments are often recorded in property order settlements.
Order 24 is a standard order relating to the finalisation of the parties’ circumstances which expressly relevantly excludes the enforcement of “these or any subsequent orders”, that each party be solely entitled to the exclusion of the other to all other property including choses in action in the possession of such party at the date of the orders. There was, in fact, no exclusion of any further matters, although the Notation B “That these orders are made in consideration of an inheritance due to be received by the husband in the approximate amount of $500,000” would, in the circumstances, in my view, have operated as a bar, or at the very least a significant forensic difficulty, to any claim by the wife in terms of the inheritance.
Nonetheless, it is clear on any view of the materials that the property orders made did not touch, in any way, upon child support, did not purport to exclude or modify any child support claims and there was no reference, as the husband now asserts, to the $50,000 being a payment made in respect of school fees. As the Registrar’s submissions correctly point out, the AAT was entitled to take into account the $375,000 inheritance in assessing whether the father had the financial capacity to contribute to 50% of private school fees. Moreover, as the Registrar’s submissions also correctly point out, the Tribunal’s decision at paragraph 52 observed that the applicant’s weekly discretionary expenditure of $168 was almost sufficient to meet this obligation in any event.
In my view, the Tribunal’s decision does not display that it was beyond the grounds of legal reasonableness at all. To the contrary, there was a finding of fact clearly open to the Tribunal that the father did have the capacity to make the relevant contribution to school fees and I uphold the submission that this ground is incapable of being anything more than impermissible merits review. It has no prospects of success.
Did the Tribunal misdirect itself in relation to the mutual intention of the parties
This ground turns on consideration at paragraph 18 of the Tribunal’s decision. S 117(2)(b)(ii) of the Child Support (Assessment) Act 1989 provides, as the Tribunal correctly recorded at paragraph 11, a ground for departure exists where in the special circumstances of the case the costs of maintaining the children are significantly affected because the children are being cared for, educated or trained in the manner that was expected by their parents.
The Tribunal’s decision stated at paragraph 18:
In relation to whether the mutual expectations can change, the Full Court of the Family Court in the matter of Mee & Ferguson (1986) FamCA 3 stated, “The word ‘expected’ in the past tense presumably relates to some expectation of the parties at a point in time earlier than the hearing.” In relation to the manner expected, the financial circumstances of the parents come into play during just and equitable considerations once the ground is established. In the matter of Newman & Caldwell [2009] FMCAfam 496, the Court said:
“The provisions of the Child Support (Assessment) Act do not provide for the Tribunal to determine what is a reasonable standard of education for the children … but require the Tribunal to first determine what the parties had intended and secondly determine the extent to which each of them can contribute to the relevant expenses.”
The relevant part of ground 2 asserts “expectations are a fluid concept and those expectations will alter as their financial circumstances change. For the AAT to find otherwise involves it misdirecting itself as to the law on point.” In oral submissions, counsel advanced the matter by reference to s 4(2)(d) of the Child Support (Assessment) Act 1989, which is to the effect that child support should vary as the parties’ circumstances change.
As the written submissions of the Registrar correctly observe, the Tribunal expressly had regard to Mee & Ferguson (1986) FLC 91-716 and cited it. It also had regard to the evidence before it that the applicant father had signed enrolment forms for the children to attend (omitted) School in 2013 and 2014 and shared equally in the costs of that education in 2014. It was on this footing that the Tribunal concluded that both the father and the mother had the necessary expectation that the children attend (omitted) School. I accept the submission of the Registrar that this was a finding clearly open to the Tribunal having assessed evidence before it. It is not capable of sustaining an error of law.
Having made this finding, the Tribunal, as the Registrar correctly submits, considered the father’s capacity to contribute to the private school fees and made findings of fact, clearly open to it, that he could. This ground cannot succeed.
Ground 3
In a sense, this matter has already been addressed under ground 2. What the father was saying is that the Child Support (Assessment) Act 1989 and, in particular, subsection 4(2) requires the amount paid in child support to reflect any changes in the standard of living of both of the parents. It was submitted that in finding that the decision to educate the children privately was unalterable and fixed, the Tribunal misconstrued the Act.
This ground, as the Registrar once again correctly submits, misconstrues the Tribunal’s decision. The Tribunal first assessed the expectation of the parties in deciding whether a departure order might be appropriate and then assessed the father’s capacity to pay in considering whether it would be just and equitable to make him do so. The decision, as already said, was a factual finding open to the Tribunal to make. The third ground can likewise not succeed.
Conclusion
The test in evaluating an application of this sort, when the court is considering the merits on an interlocutory basis, has been described as “arguable”, “reasonably arguable”, “sufficiently arguable” or the like. In the particular circumstances of this case, the so-called questions of law identified by the notice of appeal simply do not have sufficient prospects of success for it to be appropriate to exercise the court’s power to extend time. To the contrary, they are, in my opinion, to quote language now somewhat antique, doomed to fail. They are without merit. They should never have been pursued.
The applicant has by no means satisfactorily explained his delay, although I have rejected some aspects of the criticisms made of him in this regard. The delay was not, in the scheme of the time limit itself, small. The substantive grounds of appeal are, in my opinion, hopeless. It is not in the interests of justice to extend time. The application will be dismissed.
I certify that the preceding seventy-eight (78) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 20 January 2017
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