Strong v Strong
[2017] FCCA 2954
•1 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STRONG v STRONG & ANOR | [2017] FCCA 2954 |
| Catchwords: CHILD SUPPORT – Appeal from Administrative Appeals Tribunal – no error of law – application dismissed – application in a case in relation to publication of material on Facebook – Applications dismissed. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), s.117 |
| Cases cited: Abebe v Commonwealth of Australia [1999] HCA 14 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 Child Support Registrar & Scullin & Anor (SSAT) [2015] FamCAFC 200 Henriques & Hatzis & Anor (SSAT Appeal) [2014] FCCA 1194 Jordan & Verne (SSAT Appeal) [2012] FMCAfam 21 Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA 744 Minister of Immigration and Citizenship v SZ155 [2010] 243 CLR 164 Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305 Penman & Child Support Registrar & Anor (SSAT Appeal) [2013] FCCA 492 |
| Applicant: | MR STRONG |
| First Respondent: | MS STRONG |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRG 699 of 2016 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 19 May 2017 |
| Date of Last Submission: | 28 July 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 1 December 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| The Respondent appeared in person. | |
| Solicitor for the Second Respondent: | Mills Oakley Lawyers |
ORDERS
That the Further Amended Notice of Appeal (Child Support) filed 11 October 2016 be dismissed.
That the Applications in a Case filed 18 May 2017 and 20 July 2017 be dismissed.
Notation
It is noted that if the mother has published on Facebook an account of child support proceedings she should take the account down immediately.
IT IS NOTED that publication of this judgment under the pseudonym Strong v Strong & Anor is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 699 of 2016
| MR STRONG |
Applicant
And
| MS STRONG |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by Mr Strong against a decision of Ms M sitting as a member of the Administrative Appeals Tribunal (“the AAT”).
The decision was made on 21 June 2016.
The Background
The factual background to this appeal is adequately summarised in the submissions of the Child Support Registrar:
“[4] The Applicant and First Respondent are the parents of X, born (omitted) 2004 and Y, born (omitted) 2005 (the children).
[5] The child support assessment was registered on 19 January 2011.
[6] On 16 October 2015 the First Respondent applied to the Registrar for a departure from the administrative assessment under Part 6A of the Child Support (Assessment) Act 1989 (Assessment Act).
[7] On 9 December 2015 a Senior Case Officer (SCO), being a delegate of the Registrar, considered the application and found two grounds of departure established on the basis of the Applicant's income, property and financial resources and his earning capacity. The SCO decided to set the Applicant's adjusted taxable income at $136,641 for the period from 1 February 2016 to 31 October 2017.
[8] On 12 February 2016 the Applicant's objection to the decision was disallowed.
[9] On 18 February 2016 the Applicant sought first review from the AAT and on 21 June 2016 the objection decision was affirmed.
[10] On 2 August 2016 the Applicant filed a Notice of Appeal (Child Support) seeking to appeal the decision of the AAT on a question of law.”
The Grounds of Appeal
The Applicant sets out four grounds of appeal in his Notice of Appeal filed 12 October 2016:
“[1] Application under ADJR S.S(a),(b).(e)&(h) for review of decision.
[2] Application under ADJR S.6( I) and (2) for review of conduct to making of decision.
[3] The AAT erred in law in failing to have regard to reasons for decision referred to in AAT S.43(28)
[4] The AAT erred in law in failing to have regard to the relevant considerations, namely the matters referred to in CSA/\ S.117 (2)(a)(iii)(A). (2)(c)(ia), (2)(c)( ib), (2)(c)(ii). (20). (4)(d). (4)(e)(i). 4(g)(ii)(A), (7A). (7B)(a)(i). (7B)(b)(ii), (9) of the Child Support (Assessment) Act (CSAA).
The submissions filed by the Applicant were voluminous and using my best efforts the Applicant appears to be alleging he was not afforded procedural fairness as the only ground that might be available to argue.
The Law
The Registrar summarises the law in relation to this appeal at paragraph [31-34] of the submissions.
“[31] Consistent with the previous regime under the now repealed section 11 OB of the Child Support (Registration and Collection) Act 1988 (Collection Act) the appeal is brought under section 44AAA of the AAT Act and is limited to an appeal "on a question of law".
[32] A particular question of law, which is said to arise from a decision of a tribunal should be stated with sufficient precision.2 While the Registrar acknowledges the statutory requirement placed on this Court to proceed with undue formality, in Child Support Registrar & Crowley and Anor [2015] FamCAFC76, the Full Court of the Family Court stated at [22]-[24]:
Appeals from the Tribunal to, relevantly, the FCCA lie only on a question of law (s 11OB of the [Collection] Act)...
A consequence of the confined nature of appeals from the Tribunal to the FCCA is a requirement that the grounds of appeal to that court be drawn with particular precision which bears that restriction firmly in mind.
[33] Compliance with this prerequisite ensures the merits of a case are dealt with, not by the Court, but by the Tribunal, a "distribution of function [which] is critical to the correct operation of the administrative review process." 3
[34] As to the principles that emerge from the authorities in relation to child support appeals the Full Court of the Family Court in Child Support Registrar & Crabbe and Anor [2014] FamCAFC 10 (Crabbe) provided the following relevant summary at [54]:
The question of whether there is evidence to support a finding of fact or an inference drawn from findings of fact is a question of law (Al-Miahi).
The making of a finding of fact or the drawing of an inference in the absence of evidence is an error of law (Al-Miahi).
A wrong finding of fact is not an error of law (Al-Miahi).
A finding of fact based on reasoning that is "demonstrably unsound" or on an "illogical course" or a "faulty process" of reasoning is not an error of law (Al-Miahi).
Judicial review is not to be over-zealous in seeking to find inadequacy of reasoning by an administrative decision maker; the review of the reasons.”
I note the Applicant referred to the decision of Carrigan & Fredericks (SSAT Appeal) [2011] FMCAfam 544 at [105] where Brown FM (as he then was) described the nature of “a question of law”.
“[105] An administrative tribunal exceeds its powers and thus commits a jurisdictional error, which is correctable on appeal in respect of a question of law, if it:
fails to construe properly the legislative provisions applicable;
identifies the wrong issues or asks itself the wrong questions;
…”
At paragraph 108 of Carrigan (supra) the FM concluded:
“[108] In summary, an appeal on a question of law:
is not a review on the merits or a rehearing;
as such, an appeal on a question of law is not one in which findings of fact, per se, can be called into question;
however, bearing in mind the statutory intent implicit in Part VIII of the Collection Act and the purpose of the Federal Magistrates Court itself, in dealing with SSAT appeals, the court should not be unduly legalistic or pedantic, particularly where the appellant concerned is self-represented;
in reviewing a decision of the SSAT for error, the court should not examine the decision in question with an eye ‘keenly attuned to the perception of error’.”
While his Honour was referring to the SSAT the same analysis can be applied to decisions of the AAT. The AAT is the Tribunal currently with the power to hear and determine Child Support matters where a party is seeking to review a decision of the Child Support Registrar or a delegate of the Registrar.
The Question of Law
Errors of Fact
The Applicant lists various sub sections of s.117 of the Child Support Assessment Act 1989 (Cth) (“CSAA”) and submits in relation to those sections that the order made by the AAT was the result of an error of fact and thus ultra-vires for illegality.
I accept the submissions of the Registrar that the complaints set out in this part of his appeal must fail because the thrust of the submission that the member ignored the relevant material and made assumptions to which the member did not have clear evidence is a merits review.
There is no error of law if a decision maker makes a wrong finding of fact unless there is no evidence to support that finding, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 of [88] per Mason CJ.
The authorities make it clear there is no error if the AAT’s reasoning was “demonstratively unsound or an “illogical course” or a “faulty process” Minister for Immigration and Multicultural Affairs v Al-Miahi [2001] FCA744.
The list of findings Mr Strong refers to set out below were all available on the evidence before the tribunal:
“[2] Made an assumption to which it did not have clear evidence to support a finding of the following;
Mr. Strong’s actual Tax Returns of 2015/2016 at ‘NIL’
Mr. Strong's availability to engage in full time employment:
Mr. Strong's availability to procure full time employment:
Mr. Strong's ability to sustain full time employment:
Mr. Strong’s availability of earning capacity;
Mr. Strong’s availability of resources;
Mr. Strong's availability of support; and
Mr. Strong’s 3rd party transfer of monies;”
The weight the tribunal chooses to accord to various parts of the evidence before it and the findings of fact the evidence gives rise to are entirely matters for the original decision maker. These matters relate to the merits of the application. Minister of Immigration and Citizenship v SZ155 [2010] 243 CLR 164 at [32]-[37].
The question of whether the decision maker accepts of rejects evidence provided by a party is a question of credibility that is a matter for the decision maker and does not raise a question of law. Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305 at [90].
The complaint that the AAT did not have regard to the relevant mandatory provisions of s.117 of the CSAA cannot be sustained on a review of the decision. The AAT considered the fathers earning capacity and made findings in relation to that issue.
The decision maker then considered that it was just and equitable to make the departure order on the evidence before the AAT including any hardship that would be caused by the decision. The final mandatory provision is the question of whether the departure is otherwise proper and this limb of s.117 was also considered by the AAT and a determination was made.
I accept the submissions of the Registrar at paragraph [49]:
[49] Further the AAT's reasons for decision confirm it considered the documentary and oral evidence provided by the parties. The Applicant failed to provide full and frank disclosure and as Brown FM (as his Honour was then) stated in Morse & Potts (SSAT Appeal) [2010] FMCAfam 1305 at [79]-[80]:
The onus remains on [the Applicant] to present his financial affairs and records in a manner which is both transparent and readily understandable. It is not for the Tribunal to embark upon some tortuous process of audit in the absence of such transparency and accessibility.
It is a fundamental principal in respect of financial proceedings brought both pursuant to the Family Law Act 1975 and the Child Support Scheme that the parties to such proceedings are under a duty to make a full and frank disclosure of all their financial circumstances. In the absence of such transparent financial disclosure, in my view, it is open to the SSA T to be "reasonably robust in assessing the non-disclosing parents' financial.”
The father failed to provide full and frank disclosure. It is not a matter for the AAT to go out and obtain the evidence the father failed to provide. The Tribunal is entitled to draw an adverse inference from the failure to provide the disclosure request. Henriques & Hatzis & Anor (SSAT Appeal) [2014] FCCA 1194 of [185].
“If a party elects not to be frank as directed, he or she chooses to do so at his or her own peril. In such circumstances, it cannot be the responsibility of the decision maker to protect such a person from the consequences of such behaviour. As was observed in SZBEL, to do otherwise may attract the criticism that the tribunal in question is partial.”
Mr Strong asserts that the decision “offends logic”[1]. In Jordan & Verne (SSAT Appeal) [2012] FMCA fam 21 of [60] Jarrett FM (as he was then) observed:
“[60] Ms J relies upon certain remarks made in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 as authority for the proposition that the question of whether a decision is illogical or irrational is a question of law. In particular I am directed to the decision of Crennan and Bell JJ in that case at paragraphs 131 and 133. Their Honours remarks, however, are made in the context of irrationality or illogicality in decision making concerning jurisdictional facts. The inference (or finding) drawn by the Tribunal about the value of the financial resource received by Ms J from Ms J cannot be said to be a jurisdictional fact.”
[1] Applicants submission p18 at [18] and p 21-26
I do not consider that there were any illogical findings in relation to a jurisdictional fact. The earning capacity of Mr Strong is not a jurisdictional fact.
The Applicant in submissions at 13(a) (page 14) states:
“13.CSAA S.117 (9) Subsections (4) to (8) (inclusive) do not limit other matters to which the court may have regard.
a. The presiding member of matters in FCWA, Justice Duncanson, said along the lines on 2 June 2016 “the monies transferred between Ms. W and Mr. Strong are considered at the time to be loans between the parties”. The Tribunal fell into error by not considering the parenting and financial issues of FCWA. The Tribunal understands financial matters before the FCWA and awaiting judgement. In relation to financial proceedings, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, per Bowen CJ and Deane J at 581, in relation to an appeal under s. 44, AAT Act; the proceedings are within the original jurisdiction of the court hearing them. Therefore, it is reasonable to say that the jurisdiction of financial matters is the FCWA and not the Tribunal.”
The matters before the Family Court Western Australia, related to the parties’ property proceedings under the Family Law Act 1975 (Cth) (“the FL Act”). The proceedings before the AAT related to Child Support. The AAT had jurisdiction to hear and determine the matter.
The Decision is Ultra-Vires for Illegality.
The Applicant submits that even if the Tribunal look into consideration proper evidence the decision would still be ultra-vires because:
“1. Onerous conditions were improved on him; and
2.The tribunal act in bad faith”
Onerous Conditions
The Applicant argues the decision itself is onerous because of the assessment the decision maker arrived at[2].
[2] Applicant submissions at p 6 at [3], p 14 at [13(b)] and 921 at [2]
The AAT found a ground for departure based on Mr Strong’s earning capacity. The Tribunal analysed the evidence and found the departure determination was just and equitable and otherwise proper. The AAT was carrying out the decision making process pursuant to the statute that governs the application. This does not amount to an error of law.
Bad faith
The Applicant asserts the decision maker acted in bad faith by predetermining the matter and because the decision offends logic[3].
[3] Applicants submissions p 21-26 and p 31
In Penman & Child Support Registrar v Anor (SSAT Appeal) [2013] FCCA 492 at [203]
“[203] Allegations of bias or bad faith are serious matters, alleging as they do personal fault on the part of the decision-maker. They must not be lightly made and should be clearly alleged and proved. The Appellant’s assertions of bias, not forming part of a ground of appeal but merely given in a written submission, fall short of the standard required.”
The Applicant was not provided the transcript of the proceedings and in the absence of transcript it is not possible to argue bad faith.
The Applicant’s submissions in relation to bad faith do no more than set out the findings made by the decision maker that he does not agree with.
Failure to Afford the Applicant Procedural Fairness
The Applicant submits the AAT failed to make further enquiries regarding the Applicant’s asset position, his heath and the financial circumstances of the mother.
In Abebe v Commonwealth of Australia [1999] HCA 14 of [187];
“[187] The want of procedural fairness was said to lie in the Tribunal not putting to the applicant any suggestion that her story of detention and rape was untrue. Framed in this way, the submission may, perhaps, assume that proceedings before the Tribunal are adversarial rather than inquisitorial or that in some way the Tribunal is in the position of a contradictor of a case being made by the applicant. Such assumptions, if made, would be wrong. The proceedings before the Tribunal are inquisitorial and the Tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well‑founded fear of persecution for a Convention reason. The Tribunal must then decide whether that claim is made out.”
The Applicant is responsible for adducing the evidence that is necessary to prove his case and while the proceedings are inquisitorial that does not in any way detract from the requirement that the Applicant must prove his case.
The Applicant sought to put into evidence transcripts of proceedings before the Family Court Western Australia. The AAT rejected the evidence on the basis of relevance. I accept the submission of the Registrar that issues of relevance are a matter for the AAT. Furthermore, the Applicant would need to demonstrate what injustice this ruling caused. Child Support Registrar & Scullin & Anor (SSAT) [2015] FamCAFC 200 of [35].
I accept the submissions of the Registrar at paragraph [67]:
“[67] Further the Registrar submits the reasons for decision make clear the Applicant was afforded a meaningful opportunity to make oral and written submissions to the AAT. The Applicant was even afforded an additional opportunity to provide further evidence and submissions following the hearing and elected not to do so. In those circumstances and in the absence of a transcript, the Applicant has failed to demonstrate any denial of procedural fairness.”
The Grounds of Appeal
The Applicant sets out Grounds 1 and 2 as coming under the Administrative Decision Judicial Review Act 1977 (Cth) (“the ADJR Act”).
A departure decision in relation to child support is excluded from review pursuant to the ADJR Act4.
4 ADJR Act Schedule 1 s. 3 (s)
Grounds 3 and 4 do not set out any particulars and must fail.
Conclusion
The Applicant has not demonstrated an error of law and as a consequence his appeal must fail and his application must be dismissed.
I adopt the submissions of the Registrar at paragraph [74-80]:
“[74] That the amended Notice of Appeal (Child Support) filed 11 October 2016 be dismissed.
[75] The Registrar does not seek an order for costs.
[76] The Applicant seeks orders that for the period 17 October 2014 to 30 June 2015 his adjusted taxable income be set at $120,271 and for the period 1 July 2015 to 30 June 2017 his adjusted taxable income be set at nil. In effect the Applicant seeks this Court to set aside the AA T decision and make its own departure determination.
[77] Pursuant to s 44(5) of the AAT Act, the Federal Circuit Court may make orders on an appeal from the decision of the AAT, which include affirming or setting aside the decision of the AAT and an order remitting the case to be heard and decided again, in accordance with the directions of the Court. There is no express provision for the Court to review the evidence and determine the matter afresh, as is effectively requested by the Applicant.
[78] Although the Registrar acknowledges that this Court's power to make whatever order it considers appropriate is "wide'', an appellate court "should not usurp the fact-finding function of the [Tribunal]. In Osland v Secretary to the Department of Justice18 the High Court elaborated on this point:
The Court of Appeal, in the exercise of its jurisdiction under s 148 of the VCAT Act, may make substitutive orders where only one conclusion is open on the correct application of the law to the facts found by the Tribunal. Such a case arises when no other conclusion could reasonably be entertained. In that event, the Court can make the order that the Tribunal should have made. The language of s 148(7) is also wide enough to allow the Court of Appeal to make substitutive orders in other circumstances. But its powers must, as with the equivalent powers of the Federal Court in relation to the AAT, be exercised having regard to the limited nature of the appeal. Absent such restraint, a question of law would open the door to an appeal by way of rehearing. Where there is a factual matter that has to be determined as a consequence of the appeal, it may be that it is able conveniently to be determined by the Court of Appeal upon uncontested evidence or primary facts already found by the Tribunal. When the outstanding issue involves the formation of an opinion which is, as in this case, based upon considerations of public interest, then it should in the ordinary case be remitted to the body established for the purpose of making that essentially factual, evaluative and ministerial judgment.
[79] This passage has been cited with approval on numerous occasions. The following principles emerge from that decision and from later decisions applying what the High Court said:
It is “desirab[e] in the ordinary case that the decision be made by the body established by Parliament for the purpose of making the decision, especially if it involved factual, evaluative or ministerial judgements'. In the ordinary case, "[f]act finding is a task for the Tribunal, not the Court because it is to the Tribunal that the legislature entrusted the task of fact-finding.
Generally, an appellate court should only substitute its own orders in place of those made by the Tribunal if, applying the law to the facts, there is only one result possible.
Findings of fact can be made by an appellate court only "in certain limited circumstances'. The decided cases reveal the following discretionary or prudential guidelines:
Where a factual issue has not been fully explored before the Tribunal, care must be exercised before [a court] invokes the power ... to make additional findings of fact.
[I]n any case calling for further investigation by a party or extensive evidence the better course is just to remit the matter to the tribunal for rehearing'.
If the finding of fact is “of such critical importance to the decision-making process in the present case", the more appropriate course will be remitter as the court should restrict itself to "limited factual findings'.
It will not be appropriate for a court to make its own findings of fact if the Tribunal made findings about credibility.
[80] For these reasons, if the Court was satisfied that a question of law had been identified and established (which is neither admitted nor apparent), then the appropriate course would be for the Court to remit the proceedings for reconsideration in accordance with the Court's reasons for judgment.”
I will therefore make an order that the amended Notice of Appeal (Child Support) filed 11 October 2016 be dismissed.
The Application in a Case
The father filed an application in a case on 18 May 2017.
In that application the father sought:
“Court assign a Marshall to investigate the publication of Federal Circuit Court documents by Ms. Strong.”
A further application in a case was filed 20 July 2017.
In that application the father sought:
“[1] The Mother immediately remove from “Facebook" and all any other media, all references to these proceedings, including but not limited to all references to the children, the Mother's name, the Father's name, the names and any details of any of the solicitors (and the firms for which they work) and the barristers who represent, or who have represented, the Mother and/or the Father in parenting proceedings pursuant to the Child Support (Registration and Collection) Act 1988 ("the Act"), the name and any details of the Child Support Registrar and the firm for which he/she works, and all references to judicial officers of this Court in respect of decisions or determinations they are said to have made or not made, all references to any other third and/or interested party in this case such as the Administrative Appeals Tribunal, concerning any matter or person involved in the current proceedings.
[2] Pursuant to the Act, the reasons for judgment delivered be approved for publication to the (a) the Marshal of this Court and (b) Commissioner of the Australian Federal Police and all such police officers and persons as the Commissioner might reasonably permit authorise.
[3] Pursuant to the Act, all affidavits filed and exhibits admitted in these proceedings be made available to (a) the Marshall of this Court, and (b) the Australian Federal Police.
[4] The Marshal of this Court take all such steps as might be required to ensure that any breach of section 110X of the Act by the Mother is fully investigated and prosecuted.
[5] The Marshal of this Court is also respectfully requested, for the next two years, to monitor (or to authorise the Australian Federal Police to do so) Facebook and any other electronic communication regarding any relevant reference to the current proceeding, and if such is found, to investigate it and refer it to the Australian Federal Police for prosecution.”
The father alleges the mother has published material in relation to the AAT decision on Facebook. The mother has not appeared on this application. I do not have evidence she has been served.
The Submissions of the Child Support Registrar
The Child Support Registrar filed very helpful submissions in relation to this issue. They are as follows:
“[6] Section 110X of the Collection Act restricts the publication of review proceedings. Relevantly, subsection 110X(1) provides:
1) A person commits an offence if:
(a) the person:
(i) publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means; or
(ii) otherwise disseminates to the public or to a section of the public by any means;
any account of any designated review proceedings; and
(b) the account identifies:
(i) a party to the proceedings (other than the Registrar); or
(ii) a person (other than the Registrar) who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(iii) a witness in the proceedings.
[7] The appeal and the proceedings in the AAT on first review are designated review proceedings within the meaning of section 110X(7) of the Collection Act.
[8] Section 110X of the Collection Act is similar in terms to section 121 of the Family Law Act 1975 (FL Act). In Winters & Winters [2015] FamCA 195 at [13] – [21] Tree J summarised the authorities pertaining to the elements of section 121, which the Registrar submits are equally applicable to section 110X of the Collection Act.
[9] Relevantly, when considering what constitutes an ‘account’ of proceedings his Honour referred to and applied Hinchcliffe v Commissioner of Australian Federal Police [2001] FCA 1747 where Kenny J said as follows at [53]:
First, before s 121(1) can be contravened, there must be a dissemination of an account of proceedings, or part of them, under the Act. I accept, as the respondents submitted, that an “account“, for this purpose, is a narrative, description, retelling, or recital of such proceedings… There is no account of proceedings merely because some allegations made in the proceedings are reiterated outside the Court. Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings…
[10] In Sullivan & Tayler and Anor [2015] FamCAFC 167 at [47] – [49] the Full Court considered, amongst other grounds, the refusal to refer an alleged breach of section 121 to the Marshal of the Family Court. The Full Court agreed that such an order should not be made and referred to section 38P of the FL Act which specifies the responsibilities of the Marshal. In rejecting the mother’s reliance on Xuarez & Vitela [2012] FamCA 574, where Tree J directed the Marshal ensure an alleged breach of section 121 be fully investigated, and if appropriate, thereafter prosecuted, the Full Court observed his Honour’s judgment made no reference to section 38P of the FL Act.
[11] The Full Court went on to consider whether an order directed to an officer of the Court, such as the Principal Registrar, to request the Australian Federal Police conduct an investigation would be appropriate but elected not to do so in the circumstances of the case.
[12] The Registrar further notes proceedings for a breach of subsection 110X(1) of the Collection Act must not be commenced except by, or with the written consent of the Director of Public Prosecutions and subsection 110X(9) sets out where subsection 110X(1) does not apply.”
Submissions
[13] The Registrar makes no submission as to whether any orders should be made in respect of the allegations made by the applicant.”
Conclusion
It is an offence to publish an account of the review proceedings. The mother has not appeared and I have no evidence she has been served.
I do not intent to refer this matter to the Principal Registrar of this Court. However if the mother has in fact published an account of the review proceedings she should immediately take the account down.
If any material remains on Facebook that is an account of proceedings that is alleged to be published by the mother, I would consider referring the material to the Principal Registrar.
I will dismiss the father’s applications in a case filed 18 May 2017 and 20 July 2017.
I will note that if the mother has published an account of proceedings she should immediately take the account down.
I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 29 November 2017
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