Warren and Child Support Registrar and Anor - [2011] FamCAFC 95

FAMILY COURT OF AUSTRALIA

WARREN & CHILD SUPPORT REGISTRAR AND ANOR

[2011] FamCAFC 95

FAMILY LAW - APPEAL – Child support arrears – Appeal against a decision of a Federal Magistrate dismissing the father’s appeal against a decision of the Social Security Appeals Tribunal (SSAT) – Not established that the Federal Magistrate was in error in declining to accept the father’s contention that the SSAT failed to give sufficient consideration to the failure of the mother to facilitate contact between the father and the children, or to a purchase made by the father for the children – Appeal dismissed.

Child Support (Registration and Collection) Act 1988 (Cth) s 30
Family Law Act 1975 (Cth) s 117(2)

Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499

APPELLANT:

Mr Warren

FIRST RESPONDENT:

Child Support Registrar

SECOND RESPONDENT:

Ms Warren

FILE NUMBER:

111

2010

APPEAL NUMBER:

PAC

2802

2010

DATE DELIVERED:

28 April 2011

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

18 March 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

2 August 2010

LOWER COURT MNC:

[2010] FMCAfam 975

REPRESENTATION

REPRESENTATION FOR THE APPELLANT:

Self represented

COUNSEL FOR THE FIRST RESPONDENT:

B.D. Kaplan

SOLICITOR FOR THE FIRST

RESPONDENT:

Australian Government Solicitor

REPRESENTATION FOR THE SECOND RESPONDENT:

No appearances

Orders

That, save as to costs, the appeal be dismissed.
That within 21 days the appellant file and serve any further submissions he wishes to make in opposition to the Child Support Registrar’s costs application and affidavit evidence of his financial circumstances.

IT IS NOTED that publication of this judgment under the pseudonym Warren & CSR and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EAA 111 of 2010

File Number: PAC 2802 of 2010

Mr Warren

Appellant

And

Child Support Registrar

First Respondent

And

Ms Warren
Second Respondent

REASONS FOR JUDGMENT

By Notice of Appeal filed 30 August 2010 Mr Warren (“the appellant”) appealed against orders made by Federal Magistrate Henderson on 2 August 2010 in proceedings between the appellant, Ms Warren (his former wife) and the Child Support Registrar (“the CSR”).
By her orders of 2 August 2010, the learned Federal Magistrate dismissed the appellant’s Notice of Appeal against a decision of the Social Security Appeals Tribunal (“the SSAT”) of 17 May 2010. Although the appellant included a copy of his Notice of Appeal against the decision of the SSAT, he did not include in the Appeal Books the reasons for decision of the SSAT. The reasons were clearly before the Learned Federal Magistrate, as her reasons for judgment confirm.
In her reasons for judgment, her Honour recorded, accurately there is no doubt, that the SSAT ordered the appellant to pay arrears of child support in the sum of $4,079.46. The appellant sought to have his liability for arrears of child support extinguished. The learned Federal Magistrate rejected the appellant’s challenge to the decision of the SSAT. His liability for arrears of child support as determined by the SSAT thus remained.
The appellant’s former wife took no part in the proceedings either before the learned Federal Magistrate, or in this Court. Although the appellant took issue with his former wife’s failure to participate in the proceedings, his concerns in that regard are misconceived. As is not in doubt, the appellant’s liability for child support is a debt due to the Commonwealth, and only enforceable and recoverable by it, through the CSR (see section 30 of the Child Support (Registration and Collection) Act 1988 (Cth). The appellant’s former wife’s non-participation in the proceedings could in no way advance his appeal to this Court. Nor could it have advanced his appeal to the Federal Magistrates Court.
The CSR resisted the appellant’s appeal, and sought an order for costs in the event of the appeal being dismissed.
As is not in doubt, there is a presumption that the decision of the Court below was correct (see Australian Coal & Shale Employee’s Federation & The Commonwealth (1953) 94 CLR 621). As is also not in doubt, in order to be successful in this Court, the appellant must demonstrate appealable error. What is capable of constituting appealable error is not in doubt as the High Court made clear in House v The King (1936) 55 CLR 499, and has re-affirmed on numerous occasions since.
The appellant’s material provided little by way of helpful background to the appeal to this Court. Under the heading “Background and procedural history” the comprehensive and cogently articulated submissions of Counsel for the CSR set out a helpful history of events from 1992 to the date of judgment of the learned Federal Magistrate of 2 August 2010.
Although there is no basis for doubting the accuracy of the “Background and procedural history”, detailed by Counsel for the CSR, the Court has not had regard to it, as some of the matters referred to may be controversial, and not established by independent evidence.
For reasons which will become apparent, the Court is anxious to avoid giving the appellant any basis for impugning its determination of his appeal by relying upon material or evidence which was not before this Court. The background to the appeal, which has not been shown to be inaccurate in any way, upon which this Court relies, finds expression in the reasons for judgment of the Learned Federal Magistrate.
The learned Federal Magistrate recorded, accurately there is no doubt, having regard to the appellant’s grounds of appeal before her, and in this Court, that the bases upon which he sought to have his liability for child support arrears extinguished were in part predicated on the failure of the SSAT, and in turn the Federal Magistrates Court, to give sufficient consideration to the failure of the appellant’s former wife to facilitate contact between himself and the two children of their former marriage. Those two children were aged 27 and 23 years at the date of the judgment of the Federal Magistrate.
The other facet of the appellant’s challenge to the decision of the SSAT, and in turn to the decision of the learned Federal Magistrate, related to the purchase by the appellant of beds for the children of the marriage to his former wife, and whether or not that purchase should have been offset against his liability for child support as a “non agency payment in lieu of Child Support”.
The Federal Magistrate rejected the appellant’s contention that the actions of his former wife with respect to contact between himself and their children was, or could be, a matter impacting upon the appellant’s liability to pay child support for those children. Although nothing turns it for present purposes, rejection of that contention by the SSAT was one of the appellant’s complaints before the Federal Magistrate.
The other matter complained of by the appellant, both before the SSAT and the Federal Magistrate, was that $2,400 paid by the appellant to purchase beds for the children of his former marriage had not been taken into account as a “non agency payment” under the child support legislation. The effect of doing so would have been to reduce the appellant’s liability by that sum. The SSAT rejected the appellant’s contention with respect to the purchase of beds, as did the Federal Magistrate.
The appellant filed submissions in support of his appeal against the decision of the Federal Magistrate. For reasons which the Court then gave, the hearing of the appeal did not conclude on 18 March 2011. On 31 March 2011, the appellant filed further written submissions in accordance with the liberty reserved to him by the orders of 18 March 2011.
It is convenient to consider the appellant’s complaints by reference to the written submissions made by him. As the transcript of the hearing on 18 March 2011 would confirm, to the extent that the appellant then made oral submissions, they did little more than reiterate what he had articulated in his written submissions in this Court. Those submissions were almost identical in their terms to the submissions previously made by him to the SSAT and to the Federal Magistrate.
The “Orders Requested Please” by the appellant give some indication of the extent to which he misconceives the nature and effect of the child support legislation pursuant to which he has accumulated the liability which the CSR has, as is its duty, sought to recover from him.
As noted earlier, the appellant sought in lieu of the orders of the Federal Magistrate, relief in the following terms:
11aPlease order that there be NO further collection of money from the children’s father, until the children’s mother has complied completely with the orders of The Honourable Justice Baker of The Family Court of Australia, 22^nd Oct 1993.
11bPlease order that the children’s mother ensure access for the children to their father, in complete compensation for the access as ordered by The Honourable Justice Baker in The Family Court of Australia 22^nd Oct 1993.
11cPlease order that the children’s mother be restrained from in any and every way communicating with the children about their father. That is no, verbally, written, electronic, direct or indirect communication from the mother with the children about their father. This order please may assist reestablishment of a relationship between the children and their father, in some compensation for the access as ordered by The Honourable Justice Baker in The Family Court of Australia, 22^nd Oct 1993. The Honourable Justice Baker ordered access thus there is responsibility and obligation on the mother to do all she can to ensure the access as ordered occurs.
As noted earlier, the children to whom the appellant there referred were born in 1982 and 1986. They are accordingly aged 28 and 24 years respectively.
Under the heading “The most important issue in this sad and ongoing case is access for the children to their father”, the appellant made a series of submissions with respect to his access to, or contact with, his “dear children” in reliance upon orders made by Baker J on 22 October 1993. The appellant particularised his allegations that the children’s mother had not done “all in her power to ensure that the children benefitted from their access to their father”. He also made reference to the United Nations Convention on the Rights of the Child and the Family Law Act 1975 (Cth) (“the Act”), a judgment (not supplied) of Cohen J of 31 January 2011, and a number of other cases.
Under the heading “Errors of The Honourable Federal Magistrate”, the appellant particularised what he asserted to have been breaches of Baker J’s 1993 orders by the children’s mother. The earliest of the alleged breaches appears to have been in January 1998. The appellant then particularised a number of complaints about the standard of care which he alleged his former wife to have exhibited as the primary carer of the parties’ children.
As the learned Federal Magistrate recorded in her reasons for judgment, none of the matters relied upon by the appellant in relation to Baker J’s 1993 parenting orders with respect to the appellant’s children could possibly provide a basis for extinguishing, reducing or in any way altering the appellant’s liability to pay child support for those children. No more can usefully be said about these complaints. They simply have no merit.
Under the heading “Money Claimed by The Child Support Agency” the appellant asserted:
33 …
1The amount of money claimed is far beyond the [sic] The Basic assessment of The Basic Child Support Formula.
2The amount of money claimed has already been paid, beds purchased.
3The amount of money claimed has already been paid, Private school fees paid.
4The amount of money claimed has already been paid, in additional payments to CSA during or about late 1969/7.
The appellant did not direct the Court to any evidence adduced by him before the Federal Magistrate in support of the first, third and fourth matters asserted by him. There is no reference to those matters in the reasons for judgment of the Federal Magistrate. The inference is inescapable that her Honour did not refer to those matters because there was no evidence before her which gave her cause to do so.
The appellant’s submission to the SSAT, did not raise the matters referred to in the first, third and fourth complaints referred to above. In the absence of any evidence of those matters, a complaint that the learned Federal Magistrate failed to accept them, or have regard to them, cannot succeed.
As noted earlier, the Federal Magistrate did deal with the second point raised by the appellant, which related to the purchase of bedding. Her Honour concluded in that regard:
11.The salient facts as found by the Tribunal were the parties agreed beds were purchased at a cost of $2,400 by Mr [Warren]. That this was done by him pursuant to the carrying out of his obligations under the 1993 orders is also agreed. Mr [Warren] agreed he had not considered the purchase of the beds at the time as a non agency payment and neither did the wife. Thus a finding that there was no mutual intention at the time that the purchase of the beds would off set the husband’s child support liability was clearly open to the Tribunal.
12.In those circumstances the Tribunal was entitled to find that there was no mutual intention that the purchase of these beds by Mr [Warren] was intended to represent payment in lieu of his child support obligations given, in particular, that the purchase of the beds was an obligation of Mr [Warren]’s under the 1993 Family Court orders.
Nothing to which this Court has been referred establishes that any finding of fact made by the learned Federal Magistrate with respect to this topic was not reasonably open to her. Nor has any conclusion reached by her Honour in reliance upon those findings of fact been shown to have been other than reasonably open to her. This Court has not been referred to any evidence which, if accepted, would render problematic any finding of fact made or conclusion reached by the learned Federal Magistrate in relation to the asserted “non agency payment” with respect to bedding.
Under the heading “Disadvantage”, the appellant made a series of further submissions, none of which could possibly advance the present appeal. Nor could any of the matters asserted by him under the heading “Peril for the children”.
In what way the list of “cases” referred to by the appellant was asserted to have been capable of advancing the appellant’s complaints has not been suggested. Being familiar with those authorities, the Court cannot imagine how, individually or collectively, those authorities could advance the appellant’s challenges to the learned Federal Magistrate’s judgment.
Although the Court reserved liberty to the appellant to file further written submissions with the benefit of legal advice, the written submissions filed by the appellant are substantially in the same terms as the appellant’s earlier submissions, and appear to have been prepared without legal assistance.
The supplementary submissions of the appellant commence by recording that:
1.…
There is no opposition to the request that the mother arrange access for the children to their father and the payment of further Child Support be placed on hold until access time has been repaid to the children. Please may The Family Court of Australia grant the Order for Access as requested please.
As the Court endeavoured to explain to the appellant on 18 March 2011, in the absence of any evidence that the children of the appellant and his former wife are under a relevant disability, and there is no evidence to that effect, the children being well over 18 years of age, the provisions of Part VII of the Family Law Act 1975 (Cth), which relate to parenting, had no relevance to the proceedings before the SSAT, or the Federal Magistrate, and have no relevance to the proceedings in this Court.
The appellant’s submissions with respect to “The continuing issue of service” cannot possibly advance his appeal. Notwithstanding that the submissions of the CSR were received by the appellant one day later than the Court’s directions provided, any possible prejudice to him was addressed by reserving liberty to the appellant to file supplementary submissions in support of his appeal. The practical effect of the Court’s order was that, as a result of the CSR’s submissions being received one day late, the appellant gained thirteen more days in which to respond to them than he would have had they been filed within time.
The appellant’s complaint about his former wife’s non-attendance also reveals fundamental misunderstanding as to the nature of the child support proceedings in which he has been engaged. There was no need for the appellant’s former wife to attend the proceedings before the Federal Magistrate or this Court. The appellant’s former wife has no capacity to enforce the arrears of child support which have been claimed on her behalf by the CSR.
Nothing raised by the appellant in his further submissions could possibly enliven appellate intervention. His appeal will be dismissed.

Costs

The CSR sought an order for costs in the event of the appeal being dismissed. The appellant sought to avoid an order for costs.
Beyond asserting that it would be “unfair, unjust and inequitable to impose costs” on the appellant in his “endeavour to offer the children access to himself”, the appellant merely asserted that he “lives carefully on a very limited potential retirement income”.
As is not in doubt, the appellant’s challenge to the decision of the learned Federal Magistrate has been wholly unsuccessful and totally misconceived, as was his appeal to the Federal Magistrates Court. Those circumstances, to which regard can properly be had pursuant to the provisions of s 117(2) of the Act, provide a compelling basis for forming the opinion required by s 117 of the Act.
The Court is, however, also obliged to consider financial circumstances in the course of determining the costs application. Nothing placed before this Court by the appellant provides a basis for concluding that his financial circumstances are such that the Court should decline to exercise the discretion to make a costs order against him.
The Court will however order that the appellant have leave to file and serve submissions in opposition to the making of a costs order against him and a verified financial statement disclosing his assets and liabilities, income and fixed expenditure. A period of 21 days in which to file any such submissions and/or affidavit of financial circumstances would be reasonable in the circumstances.
In the event that any further submissions and/or evidence of financial circumstances filed by the appellant may be likely to disincline the Court to make a costs order against him, the Court will advise the CSR who may then make further submissions with respect to costs.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 28 April 2011.

Associate:

Date: 28.04.11