WEMPLE & DAUTRY
[2017] FCCA 408
•16 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WEMPLE & DAUTRY | [2017] FCCA 408 |
| Catchwords: FAMILY LAW – Children – Application for parenting orders – consideration of the rule in Rice and Asplund – final parenting orders made – review of those orders dismissed on appeal – consideration of whether there has been a change of circumstances justifying further litigation – no material change found – application dismissed. FAMILY LAW – Application for stay of contravention applications– where applicant has failed to comply with Court orders – where orders had been made in the same proceedings – Court’s discretion to stay the proceedings – stay granted. ADMINISTRATIVE LAW – Section 44 of the Administrative Appeals Tribunal Act1975 (Cth) – appeal to the Federal Circuit Court from decision of the Tribunal – child support first review pursuant to section 44AAA(1) of the Administrative Appeals Tribunal Act1975 (Cth) – oral application for leave to amend grounds of appeal – leave to amend granted – order made for security for costs. | |
| Legislation: Family Law Act 1975 Pt VIII, ss.44, 44(5), 44(6), 90SM Administrative Appeals Tribunal Act 1975 ss.44, 44AAA | |
| Cases cited: Sharp & Sharp [2011] FamCAFC 150 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Whitford & Whitford (1979) FLC 90-612 Cox & Cox (1981) FLC 91-068 Walker & Walker (1984) FLC 91-564 Hedley & Hedley [2009] FamCAFC 179 (2009) FLC 93-413 Tamaniego & Tamaniego [2010] FamCAFC 254 Hall & Hall (1979) FLC 90-679 Althaus & Althaus (1982) FLC 91-233 Rice v Asplund (1979) FLC 90-725 |
| Applicant: | MR WEMPLE |
| Respondent: | MS DAUTRY |
| File Number: | CAC 1472 of 2013 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 20 February 2017 |
| Date of Last Submission: | 20 February 2017 |
| Delivered at: | Canberra |
| Delivered on: | 16 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr James |
| Solicitors for the Applicant: | Farrar Gesini Dunn |
| Counsel for the Respondent: | Mr Stretton SC |
| Solicitors for the Respondent: | Legal Aid ACT |
ORDERS
The application for leave to extend time in which to file a property application is refused and the application dismissed.
The application to re-open the parenting proceedings is dismissed.
The hearing of the contravention applications is stayed pending payment of the costs order made by Registrar McNamara on 11 November 2015.
Leave is granted to the respondent to amend her grounds of appeal of the decision of the Administrative Appeals Tribunal in accordance with Order 3 of the orders made on 20 February 2017.
The appeal of the decision of the Administrative Appeals Tribunal is listed for hearing for one day on 15 November 2017.
IT IS NOTED that publication of this judgment under the pseudonym Wemple & Dautry is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 1472 of 2013
| MR WEMPLE |
Applicant
And
| MS DAUTRY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was heard on 20th February 2017. The matter proceeded on the “papers” with respect to the following applications:-
(a)Section 44 application for leave to extend time in which to commence property proceedings filed by the respondent mother on 26th March 2014;
(b)Application to re-open the parenting proceedings filed by the respondent mother on 27th July 2016;
(c)Applicant father’s application to stay the hearing of the contravention applications filed by the respondent mother on 18th December 2015, 17th June 2016 and 16th January 2017 pending satisfaction of outstanding costs orders against her;
(d)Application by the respondent mother for leave to amend the notice of appeal of the decision of the Administrative Appeals Tribunal;
(e)Oral application for security for costs by the applicant father.
Judgment was reserved.
Relevant facts
The mother was born in 1982 and the father born in 1976. The mother has a child from a previous relationship A born in (omitted) 2005. The parties commenced living together in (omitted) 2007. A lived with the parties.
From January 2008 to April 2009 the parties lived separately. The mother and A lived in Perth between January and July 2008 while she studied full time.
The father was deployed to the (country omitted) between (omitted) 2008 and (omitted) 2009.
The parties’ only child X was born on (omitted) 2008.
The father was deployed to (country omitted) between (omitted) 2009 and (omitted) 2010.
The parties separated in September 2010.
Following separation X lived with the mother. Until August 2012 the father’s employment required him to spend time overseas.
In (omitted) 2013 the father commenced cohabitation with Ms K.
Interim parenting orders were made by Judge Neville on 20th December 2013 for X to live with her mother and spend time with her father four nights a fortnight.
Final parenting orders were made by Judge Neville on 18th December 2014 for X to live with her father and spend time with her mother two nights a fortnight and for dinner on Thursday in the alternate week. An order for sole parental responsibility was made in the father’s favour.
Procedural history
Parenting proceedings were commenced by the father in the Federal Circuit Court on 25th September 2013.
On 20th December 2013 Judge Neville made orders that X live with her mother and spend four nights a fortnight with her father. An order was made for the father to select X’s school. He enrolled X into (omitted) School.
The mother made an application for leave out of time to appeal orders made by Judge Neville on 20th December 2013 in relation to schooling issues. Her application for leave out of time was allowed however she was ordered to pay costs in the amount of $6,500. Those costs remain unpaid.
The mother appealed final orders made by Judge Neville on 20th December 2013. That appeal was allowed and a cost certificate issued to both parties.
In February 2014 the mother commenced proceedings in the Magistrates Court and made an application for a Domestic Violence Order against the father. Following a defended hearing the application was dismissed and the mother was ordered to pay the father’s costs in the amount of $2,500. Those costs remain unpaid.
On 26th March 2014 the mother filed an application for adjustment of property interests. The application was later amended for leave to extend the time to file the application.
Final orders were made by Judge Neville on 18th December 2014 for X to live with her father and spend two nights a fortnight with her mother. In addition an order for sole parental responsibility was made in the father’s favour.
In January 2015 the mother lodged a notice of appeal to the Full Court of the Family Court with respect to Judge Neville’s orders of 18th December 2014. In February 2015 she made an application to stay those orders. The stay was refused. Her appeal against the orders made by Judge Neville on 18th December 2014 was dismissed on 23rd December 2015 with costs. Registrar Halbert on 16th June 2016 made a costs order against the appellant in the amount of $30,547.03. Those costs remain unpaid.
In January 2015 the mother filed an application for leave to extend time in which to lodge a notice of appeal against Magistrate Boss’ decision dismissing her application for a domestic violence order. The application was contested and dismissed with costs on 11th May 2015. On 17th February 2016 the mother was ordered to pay the father’s costs in the amount of $42,073.34. Those costs remain unpaid.
On 23rd March 2015 the mother applied to travel overseas and orders were made by Judge Hughes on 16th April 2015 permitting the child to travel with the mother.
On 18th December 2015 the mother lodged an appeal against the refusal of the Child Support Registrar to amend the administrative assessment for child support. The appeal was dismissed on 29th June 2016. On 15th November 2016 she appealed the refusal of the Administrative Appeals Tribunal to amend the administrative assessment. That matter is ongoing.
On 18th December 2015 the mother filed a contravention application. That matter is ongoing.
On 22nd February 2016 the mother filed an application in the ACT Supreme Court seeking to set aside the costs order made on 17th February 2016. After a contested hearing her application was dismissed on 26th August 2016 with costs. The quantum of costs is yet to be ascertained.
On 17th June 2016 the mother filed a contravention application. That matter is ongoing.
On 27th July 2016 the mother filed an amended response to the father’s initiating parenting application seeking parenting, property and child support orders. That matter is ongoing.
On 16th September 2016 the mother lodged an appeal against Associate Judge Mossop’s decision dismissing her application to set aside the costs order made on 17th February 2016. That matter is pending in the ACT Supreme Court.
The parties were required to file any further interim applications by 13th January 2017. On 16th January 2017 the mother filed a further contravention application.
Currently there is an amount of $81,620.37 in costs orders outstanding against the mother in addition to an unquantified costs order in relation to her application to set aside the cost order made on 17th February 2016.
Competing applications[1]
[1] Orders were made on 18th December 2014 on a final basis by Judge Neville that the father have sole parental responsibility for X (then aged 6), that she live with her father and spend time with her mother each alternate Friday after school until 5 pm Sunday and in the following week from 3 pm to 7 pm Thursday, for half the school holidays and on special days. The mother unsuccessfully appealed those orders to the Full Court of the Family Court and on 23rd December 2015 the appeal was dismissed with costs.
The mother sought the following orders set out in her amended response filed 27th July 2016:
1. That the orders for care are made in the reverse; or
2. X is permitted to stay Thursday and Sunday night in order for her to have a meaningful relationship with her family and reduce the conflict at changeovers.
3. That the property matter be listed when I receive a decision from Legal Aid.
4. That the decision of the Child Support Tribunal is dismissed as it has left me below the poverty line and is in conflict with the findings of another statutory agency.
The father sought the following orders pursuant to a minute filed on 26th July 2016:
1. The hearing of the contraventions filed on 18th December 2015 and 17th June 2016 be stayed until the mother has satisfied all outstanding costs orders against her.
2. In the alternative to the above:-
(a) The Contravention applications be listed for hearing;
(b) Pursuant to section 117 of the Family Law Act 1975 (Cth) the mother pay into the Farrar Gesini Dunn Trust Account the sum of $5000 no less than 28 days prior to the date of hearing of the Contravention applications to be held as security for costs for the hearing to determine the Contravention Applications; and
(c) In the event that the mother fails to make the payment referred to in Order 2 (b) above by the due date, the solicitors for the father notify the Associate and accordingly the hearing of the Contravention applications be dismissed.
3. The hearing of the mother’s application to extend time in which to file a property application be listed for hearing on a date prior to 23rd January 2017;
4. Pursuant to section 117 of the Family Law Act 1975 (Cth) the mother pay into the Farrar Gesini Dunn Trust Account the sum of $5000 no less than 28 days prior to the date of hearing of the leave application to be held as security for the father’s costs of the hearing to determine the leave issue.
5. The mother pay the “setting down fee” of $590 on or before 23rd January 2017 and the “hearing fee” of $590 on or before 17th February 2017 for the final hearing on 20th February 2017.
6. In the event that the mother fails to make the payment referred to in Order 5 by the relevant due date, the solicitors for the father are to notify the Associate accordingly and the property proceedings will thereby be dismissed.
7. In the event the Court is unable to hear the leave issue prior to the allocated hearing dates then pursuant to section 117 of the Family Law Act 1975 (Cth) the mother pay into the Farrar Gesini Dunn Trust Account the sum of $20,000 on or before 20th January 2017 to be held as security for the fathers costs of the final property hearing.
On 11th February 2016 Judge Hughes made orders adjourning the proceedings to 11th August 2016, reserving the father’s costs and noting that the Court declined to list the application for Contravention filed on 18th December 2015 for hearing when costs orders made against the applicant mother remained outstanding. The matter was adjourned to 10th November 2016.
Matters to be determined
On 11th August 2016 Judge Hughes ordered that the proceedings be listed for hearing for one day on 10th November 2016 and were to be confined to the following matters:
(a)The contravention applications filed by the mother on 18th December 2015 and 17th June 2016 noting that the respondent father will argue that they should be stayed or dismissed pending payment of outstanding costs orders or summarily dismissed.
(b)The application by the respondent father that the applicant mother not be granted leave to extend time to commence property proceedings;
(c)The application by the respondent father that parenting aspects in the amended response filed on 27th July 2016 be summarily dismissed; and
(d)The child support aspect of the amended response filed by the mother on 27th July 2016 (be dismissed).
The Court reserved the father’s costs in respect of the contravention applications.
On 10th November 2016 the proceedings were adjourned due to the mother’s illness. The hearing proceeded on 20th February 2017 and was confined to the matters set out above.
Documents relied on
The mother through her Counsel relied on her affidavits filed 18th December 2015, 27th July 2016, 22nd October 2016, 16th January 2017, an affidavit filed by Ms J on 18th January 2017 and two financial statements dated 10th June 2015 and 27th July 2016.
The father through his Counsel relied on his affidavits filed on 5th May 2014 (paragraphs 379 – 439), an affidavit dated 22nd July 2016 and filed on 26th July 2016 and an affidavit filed on 1st February 2017. The father sought orders set out in his Minute of Orders dated 26th July 2016 and relied on written submissions (undated) provided to the Court of some 19 pages. As those submissions made reference to an affidavit filed by the mother on 26th March 2014, the Court considered that document in light of the father’s submissions, noting however that the mother’s Counsel had not sought to rely on that affidavit in the proceedings.
Counsel for the mother was given leave to call brief evidence updating her financial circumstances and setting out her current progress with university studies. She gave brief evidence and was not cross examined. As agreed by Counsel the matter proceeded on the documents relied on and submissions by Counsel.
Legal principles
A. Section 44 (5) application
Section 44(5) of the Family Law Act1975 (“the Act”) provides that a party can only make an application for an adjustment of property interests arising out of a de facto relationship provided the application is made within two years from the date the de facto relationship has ended. This period is referred to as the “standard application period.” In this case the de facto relationship ended in September 2010. The standard application period in which the applicant de facto wife[2] could bring a property application pursuant to section 90SM of the Act expired in September 2012. The application filed by the wife was 1 year and 6 months out of time.
[2] For convenience the applicant de facto wife to the extension of time application is referred to in the judgment as “the wife” and the respondent “the husband”
Pursuant to section 44(6) of the Act, the Court may grant a party leave to apply after the end of a standard application period if hardship would be caused to the applying party if leave was refused.
In Sharp & Sharp [2011] FamCAFC 150, their Honours May and Ainslie-Wallace JJ discussed the importance of the time limits applicable in section 44 of the Act being observed and noted that “a limitation provision is the general rule; an extension provision is the exception to it ...”. The Court said at [12] to [13]:-
“It is important to bear in mind the purpose of s 44 in the context of the Act, which is that time limits are to be observed as the wording of that section makes clear. The principles concerning applications for leave to commence an action out of time are well known. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 McHugh J said:
‘The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates.’ [footnotes omitted]
At 553 his Honour continued:-
A limitation period should not be seen therefore as an arbitrary cut-off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated...”
The Court in Sharp (supra) referred to the Full Court’s comment in Whitford (supra) at 78,146 that while the section intends to confer power to grant leave to avoid hardship:-
“... the power should be exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi.”
In Sharp (supra) Justices May and Ainslie-Wallace said at [16]:-
“In accordance with s 44(4)(a) it must be established … that hardship would be caused to the husband if leave were not granted. If hardship is established, the Court must nevertheless be persuaded that the discretion should be exercised in favour of the applicant to grant leave to allow the application: Whitford & Whitford (1979) FLC 90-612.”
Hardship
The Full Court in Sharp (supra) at [17] discussed “hardship” in the following terms:-
“It is well accepted that hardship for these purposes is more than the loss of a right to commence proceedings. It is the consequences attending the loss of the right to commence proceedings that constitutes hardship. That is a matter to be determined by the circumstances of the particular case.”
And at [18]:
“In assessing hardship in this context the well - established test is that the applicant must have a prima facie claim worth pursuing or a “real” probability of success. Further, leave will not be granted if to do so would not, in the substantive result, alleviate that hardship. However, whether or not hardship exists is not to be assessed only by reason of the monetary value of the probable order to be made if leave were granted.”
The Full Court in Sharp (supra) at [19] cited the decision in Whitford (supra) at 78,144 as follows:-
“... The requirement, that the Court must be satisfied that hardship would be caused if leave were not granted, implies that it must be made to appear to the Court that the applicant would probably succeed, if the substantive application were heard on the merits. If there is no real probability of success, then the Court cannot be satisfied that hardship would be caused if leave were not granted ... If the probable result of the hearing on the merits is that the hardship is not likely to be alleviated, then the Court cannot be satisfied that the applicant or a child would suffer hardship if leave were not granted.”
Further in Whitford (supra) at page 78,145 it was said:-
“... As a general proposition it might be said that, the inability of an applicant to pursue a claim which in the circumstances of the applicant or a child of the marriage is trifling, generally will not cause hardship. Similarly, where the costs which the applicant will have to bear himself or herself are about as much or more than what the applicant is likely to be awarded on a property claim, ordinarily hardship would not result if leave to institute proceedings were not granted. But otherwise we find no warrant in either subsec 44(3) or 44(4) for saying that the right or entitlement lost must be a substantial one. (emphasis in original)
In an appropriate case, and depending on the circumstances of the applicant or the children, hardship may be caused by the loss or deprivation of something which is of comparatively small money value ...”
The Full Court in Sharp (supra) at [22] indicated that “If an applicant demonstrates hardship of the type discussed, then the applicant must then persuade the court that in the exercise of its discretion leave should be granted.”
Discretion
Regarding the Court’s consideration of the exercise of discretion the Full Court in Sharp (supra) at [23] referred again to the decision in Whitford (supra) at 78,145 to 78,146 as follows:-
“Section 44(4) inhibits the granting of leave unless the requisite case is made out, but it does not provide that leave must be granted if the Court is satisfied that hardship would be caused ... Due weight must be given to the expressed legislation intendment that ordinarily, proceedings should be commenced within a year from a date of the decree nisi, and the general policy of the Act which appears from sec. 44(3) and sec. 81 that financial relationships between the spouses should, wherever possible be brought to finality within a reasonable time after the dissolution of the marriage. Hence, such matters as the length of the delay, the reasons for the delay and prejudice occasioned to the respondent by reason of the delay, and the strength on the merits of the applicant’s case, and the degree of the hardship which would be suffered unless leave were granted, are matters affecting the exercise of the discretion. These matters are not necessarily the only ones.”
The Court in Sharp (supra) at [27] noted that recent authorities indicate that the appropriate approach to a determination under section 44(5) of the Act necessitates a clear distinction to be made between the proof of hardship and a consideration of the consequential exercise of the discretion (See in particular Whitford (supra) at 78,145; Cox & Cox (1981) FLC 91-068; Walker & Walker(1984) FLC 91-564. See also Hedley & Hedley[2009] FamCAFC 179; (2009) FLC 93-413 per Boland J at [132] and Cronin J at [218]).
The Court discussed the more recent decisions regarding discretionary considerations in Sharp (supra) at [75] to [97] including the following:-
“In Tamaniego & Tamaniego [2010] FamCAFC 254 O’Ryan J said at paragraph 162:-
‘As to the second part of the exercise, the fundamental issue in any application for extension of time is whether this will enable the court to do justice between the parties: see Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479. In Gallo v Dawson McHugh J referred to the need to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences to the parties of the grant or refusal of the extension of time ... In summary, in considering the second question the court may have regard to a number of factors that include whether the applicant has an adequate explanation for the delay in bringing the proceedings and whether to grant leave would prejudice or impose hardship on the respondent to the application for leave or other persons.’
In Althaus & Althaus (1982) FLC 91-233 at 77,267 to 77,268, Evatt CJ stated, and the Full Court held that:-
‘The requirement that the applicant under sec. 44(3) give an explanation of the delay in bringing proceedings in my view requires a consideration of the whole period from the date of the decree nisi to the lodging of the application. It requires the Court to consider whether the wife took all reasonable steps to pursue her claim or whether, on the other hand, she acted at any time as if she had no intention of proceeding or pursuing any claim at all against the husband. It requires the Court to consider whether it can reach conclusions as to why the proceedings were started beyond the time lodged and whether those proceedings are attributable to default on the part of the applicant. (our emphasis)’
In Ramadam v Leda Holdings [2001] NSWCA 41 at paragraph 6 Meagher JA observed:-
‘It is the prejudice to the defendant as at the date of the filing of the statement of claim which must be examined, no matter what was the date of its origin”. Although, in Ramadam the limitation period related to a personal injuries claim and particular provisions of the Limitation Act 1969 (NSW), the prejudice to the respondent as assessed as at the time the application was filed is particularly relevant in assessing delay in the circumstances of this appeal: see Hall & Hall (1979) FLC 90-679.’”
The Court in Sharp (supra) said at [97]:
“Merely because the respondent to an application for leave does not point to particular prejudice that might arise if leave were granted, does not dispose of the question. The law presumes prejudice to flow to a person sought to be joined in litigation after the effluxion of the relevant time limits. Even if the Court came to the view that there was no significant prejudice to the respondent, the Court may consider whether in all of the circumstances of the case, it is just and reasonable to grant the extension sought. The New South Wales Court of Appeal in McLean v Sydney Water Corporation [2001] NSWCA 122, per Giles JA (Hodgson and Stein JA agreeing) said at 22 that:
‘... Prejudice engendered by delay and unlikelihood of a fair trial will be highly material, and if there is prejudice and unlikelihood of a fair trial that will tell strongly, often conclusively, against the grant of an extension of time. It does not follow that in the absence of prejudice (other than general prejudice) and unlikelihood of a fair trial it will be just and reasonable to grant an extension of time.’”
Justice Young in Sharp (supra) at [131] observed as follows:-
“From the observations in Whitford (supra) and Hall (supra), and in view of the recent authorities of the Full Court on the subject of hardship, it is apparent that an assessment of hardship requires the Court to consider whether the applicant would suffer a substantial detriment as a consequence of the loss of the right to institute the proceedings, although that detriment, in the circumstances of a particular matter, may not be entirely related to financial considerations. In my opinion, it is not possible nor desirable to define exhaustively what will, in all the circumstances of a particular application, constitute hardship for the purposes of s 44(4)(a). However, in undertaking the exercise the Court should have regard to the nature of the jurisdiction exercised by the Family Court and the power should be “exercised liberally in order to avoid hardship, but nevertheless in a manner, which would not render nugatory the requirement that proceedings should be instituted within a year from the decree nisi per Whitford (supra) at 78,146.”
And further at [132] Young J said:-
“In undertaking an assessment of hardship the Court is required to consider whether the applicant has established a prima facie claim and in Hall (supra), at 78,627, the Full Court stated that:
‘Fundamental to [a finding of hardship] is a determination of the quality or character of the potential claim. In relation to that different cases have used somewhat different phrases to describe it so that it has become something of a matter of semantics to describe in different ways what is really the same basic concept. For example in Swallow’s case (unreported Emery J, 16 September 1977; referred to in McDonald’s case) it was said to be “a prima facie case which is in the circumstances substantial”; the Full Court in McDonald’s case differed from that by stating that it ought to be “a reasonable prima facie case”. In Mackenzie’s case it was described as being “a probability of success”, and in Whitford’s case the distinction was said to be that the applicant would need to show that she would “probably succeed” to be contrasted with a situation where she had “no real probability of success”. In Perkins’ case (1979) FLC 90-600 Lindenmayer J described it as “a reasonable probability of the claim being successful in some measure.’”
At [134] Young J observed:-
“More recently in Hedley (supra) at paragraph 215, Cronin J cited the Full Court decision of Richardson (supra) at paragraph 14, in which Finn, Warnick and Boland JJ stated and affirmed the principles set out by the primary judge who observed that “it is not a decision about whether the claim will succeed but whether there is a reasonable claim to be heard.”
Wife’s evidence
In her affidavit filed 15th February 2017 the wife agreed that the de facto husband owned a property at Property P at the commencement of the relationship. She moved into that property in April 2007 with her son A who was not quite 2 years old. She said she and the children left that property on 2nd December 2010. She agreed that during the relationship the husband worked overseas for months at a time.
She said that she did not realise there was a 2 year limitation period for filing for property settlement until she consulted a barrister in 2013 when she responded to the husband’s initiating application for parenting. She said “we discussed that I had agreed with the husband to forfeit any settlement or initiate any family law proceedings at the end of the relationship in exchange for transferring the responsibility for X’s day care fees then subsequent (omitted) School fees to the husband. When the husband commenced proceedings he failed to pay child support for eight months.”
The wife said she had been assessed to pay $147 per fortnight in child support for X. She has no assets other than a modest interest in superannuation of $5,951.13. She suffers from degenerative hearing loss associated with vertigo and has had severe anaemia requiring blood transfusions in the past. She said this condition affects her memory and ability to read and has associated heart and breathing difficulties.
She is currently completing (omitted) studies at (omitted) University with only 3 units remaining and hopes to obtain employment within 12 to 18 months in (employment omitted) or as a (occupation omitted). She has the care of A who attends (omitted) School in Year 6. The maternal grandmother pays his school fees. The wife receives child support of $55 per week for A. In her affidavit she requested that a property order be made “for the children’s financial security” as well as her own.
In her affidavit filed 27th July 2016[3] the wife deposed to having worked and studied part time since the children were born. She earned no more than $40,000 p.a. except when she met the husband. She deposed to the husband spending $250,000 on litigation and earning more than $200,000 p.a. She said “Mr Wemple does not need to take money out of my $450 each week where I have one child full time and X around 100 nights per year.” She said “the costs orders should come out of property settlement monies if they are not overturned when the Supreme Court matters are resolved.”
[3] The remaining affidavits of 18th December 2015, 22nd October 2016, 16th January 2017 and an affidavit by Ms J on 18th January 2017 relate to the Contravention applications
In her application filed on 26th March 2014 the wife sought orders that the husband pay her $325,000 or half the net value of his current property whichever was the greater. In addition she sought an order that the parties’ superannuation accumulated during the relationship be split equally.
Husband’s evidence
The husband deposed in his affidavit filed 30th March 2015 that the parties met in early 2007. The husband owned a property at Property P, a Nissan (omitted), furniture and $500 cash. He held an interest in superannuation with (omitted) of $54,314.37. He earned about $57,000 p.a.
The wife was at that time, living in rented premises at (omitted) with her son A who was 18 months old. She owned some furniture and drove a Daewoo (omitted). She was a full time student in receipt of a parenting allowance. He denies that the wife had savings of $30,000.
The wife moved into his property in Property P in April 2007 with A and the parties commenced living together. The husband contends that A saw his father irregularly and attended day care full time during the time the parties lived together. The wife paid for A’s day care though the husband also made a few payments.
During the early part of the relationship the husband was the sole income earner and paid for all living expenses for himself, the wife and A. He requested the wife contribute financially. He contends that she told him “I can’t because I don’t have a job.” According to the husband the wife declined gaining employment saying “she had a lot of study to do.”
In (omitted) 2008 the husband secured a job with the (employer omitted) in Sydney and commuted from (omitted) to Sydney each day. The parties continued to live at Property P in the husband’s home. The wife and A travelled to Perth in January 2008 to complete her studies. The husband paid for the wife’s and A’s flights and accommodation. The husband contends that his brother lived in Perth and the wife could have stayed with him in his home rent free but chose to live in other accommodation at the expense of the husband. He continued to pay for all of the wife’s expenses whilst she was in Perth.
On (omitted) 2008 the husband was deployed to the (country omitted) for 12 months. He continued to pay the mortgage, rates and utilities for the Property P property. He deposited money into the wife’s bank account for her support and provided her with funds for groceries, telephone and all her other needs.
In July 2008 the wife and A returned to live in the Property P home. X was born on (omitted) 2008. The husband took four weeks leave from his deployment and returned to Australia.
X commenced full time day care on 16th February 2009 which continued to 23rd January 2011. The husband paid for her child care fees either directly or deposited funds into the wife’s bank account for this purpose.
The husband’s deployment ended on 15th April 2009 and he returned to Australia. He purchased a property at Property B in his sole name for $560,000 in May 2009. He took a mortgage of $519,000 paid $1,000 holding deposit and borrowed $40,000 from his father.
The parties moved into the Property B property in July 2009 and the husband commenced full time work in (omitted). The wife continued with studies. In 2010 the wife secured a casual job at (employer omitted) in (omitted) four hours per week. The husband solely paid the mortgage on the Property B property, repaid his father and paid the rates, household groceries and clothes and other family expenses. The wife made no financial contribution from her casual employment towards household expenses.
From 13th September 2009 to 9th June 2010 the husband was deployed to (country omitted). He continued to provide financial support for the wife and the children.
Between July 2009 and June 2010 the Property P property was tenanted. The husband was solely responsible for mortgage payments and upkeep of that property. The wife made no financial contribution to that property.
On 19th June 2010 the husband sold the Property P property for $411,000 and received net sale proceeds of $24,233.98. This amount was applied to the Property B property and used to finalise payment to the husband’s father. The balance of $13,000 was deposited into the applicant’s (omitted) Credit Union account.
The parties separated in September 2010. The wife moved out of the Property B property with the children. At separation the parties owned the Property B property with equity of about $55,000 to $60,000, a Holden (omitted) motor vehicle leased in the husbands name, a Holden (omitted) registered in the wife’s name, $4,000 in the husband’s bank account, the wife’s engagement ring which the husband says was worth $16,000, furniture and effects, the husband’s (omitted) superannuation interest of $51,972 and his interest in (omitted) superannuation of $30,972.
The wife took with her furniture, the Holden (omitted) motor vehicle, the children’s clothes and toys and her engagement ring when she left the Property B property. The husband remained in the property and paid all outgoings. The husband said he drew down on the Property B mortgage in December 2012 the amount of $44,844 to pay out the lease on his vehicle.
The husband commenced a relationship with Ms K in November 2012. On 21st September 2013 he and Ms K purchased Property W for $775,000. They paid a deposit of $40,000 by drawing down an amount of $49,599.53 on the (omitted) loan secured against Property B. Ms K paid the stamp duty for the Property W property. The husband’s father gifted him $20,000. Ms K’s mother loaned the parties $20,000. The parties obtained a loan for $713,203 from (omitted) bank.
On 20th December 2013 the Property B property was sold for $575,000. The net proceeds of sale were $22,518.42. Those proceeds were used to repay Ms K’s mother $10,000 and Ms K $10,000 regarding a loan to the husband with respect to legal fees.
The husband and his new partner jointly own the Property W property. The husband said his share of the equity in 2014 would be around $35,000 and in 2016 $52,853. His Holden (omitted) was worth about $34,000 in July 2016. He had savings of $3,300. He had non superannuation assets of $90,153 in July 2016.
In July 2016 the husband’s superannuation with (omitted) was $77,955. In 2014 it was about $70,738. His interest in (omitted) superannuation in July 2016 was $147,270 whereas in 2014 it was $100,210. In July 2016 he had a total of $225,225 all but about $31,000 having accrued before cohabitation and after separation.
In July 2016 the husband had liabilities of $240,000 mostly incurred as a result of litigation between the parties and credit card liabilities of $4,826. In 2014 his liabilities were about $45,000 to his father for legal fees and $17,500 to Ms K for legal fees. His net non - superannuation position in July 2016 was a deficit of $154,673.
He earned in July 2016 about $120,000 p.a. whilst his partner Ms K earned $80,000 p.a. According to the husband the Child Support Agency deemed the wife’s adjusted taxable income to be around $96,000 in relation to an assessment ending December 2017.
Currently there is an amount of $81,620.37 in costs orders outstanding against the wife that remain unpaid, in addition to an unquantified costs order in relation to the wife’s application to set aside the cost order made on 17th February 2016.
Discussion
The parties commenced living together in (omitted) 2007 and separated in September 2010. The relationship spanned 3 years and 5 months however the parties physically shared a common residence for 2 years and 1 month. There is one child of the relationship X born (omitted) 2008.
As the parties separated in September 2010 the “standard application” within which to bring property proceedings expired in September 2012.
The wife filed her application for property interests in March 2014, 1 year and 6 months out of time.
The husband holds his interest in a property in Property W with his current partner and has equity of about $52,853, a Holden (omitted) sport vehicle which he brought into the relationship worth $34,000, $3,300 in a bank account, $77,955 in (omitted) superannuation and $147,270 in (omitted) superannuation. He has liabilities of $240,000 with respect to loans obtained to pay legal fees regarding the parenting proceedings, various appeals and other related proceedings and costs appeals filed by the wife. His net non - superannuation assets are in deficit in the amount of $154,673. Of his current interest in combined superannuation of $225,225 the amount which accrued during the relationship $30,972. He brought into the relationship his interest in (omitted) superannuation which had decreased in value at the time of separation. The wife owns furniture, has credit card liabilities of $5,000 and superannuation of $5,951 with (omitted). The wife filed a financial statement in July 2016 deposing to an income of $450 per week.
The husband earns about $120,000 p.a. with the (employer omitted) and his partner earns about $80,000 p.a.
The wife has full time care of her son A now 11 years old. He attends (omitted) School and his fees are paid for by the maternal grandmother. The husband has full time care of the parties’ child X who is now 8 years old. She attends (omitted) School in (omitted). He pays for all of X’s needs. X spends time with her mother 2 nights a fortnight and for 1 evening meal a fortnight.
The mere loss of a right to institute proceedings is not of itself “hardship.”
It is necessary to consider the consequences for the wife if leave is refused.
Neither party has assets of significance. The husband’s non superannuation assets are in deficit in the amount of $154,670.
The wife is in deficit in the amount of about $5,000. In her financial statement filed on 27th July 2016 she does not acknowledge costs orders outstanding against her as liabilities.
She is seeking a payment of $325,000 from the husband or half the equity in the husband’s home in Property W which he jointly owns with his new partner, whichever is the greater.
The wife has no prospect of succeeding in being awarded a payment of $325,000 or any award close to that amount. The reality is that the husband is in deficit and there is no non superannuation property capable of being divided if the husband’s loan liabilities are taken into account.
At separation the parties had about $55,000 in equity in the Property B property. The husband had applied net proceeds of a property he introduced into the relationship (the Property P property) towards the Property B property. In addition he borrowed $40,000 from his father to fund the purchase of the Property B property. He worked full time throughout the relationship, supported the wife’s university studies and her child from another relationship. He paid X's school fees until December 2013 and from that time shared her care 4 nights a fortnight. From December 2014 X has lived with him and spent time with her mother 2 nights a fortnight.
As to the wife’s claim for half the equity in the Property W home, a property the husband owns jointly with his new partner, there is no real probability of the wife succeeding in that claim. The husband and his new partner have a substantial joint mortgage secured against that property. Both the husband and his new partner funded the deposit with assistance from their respective parents in addition to drawing down on the Property B mortgage. The husband’s partner paid the stamp duty. Both have contributed to mortgage payments since the property was purchased in September 2013. The husband and his new partner rearranged their financial affairs prior to the application for extension of time being filed, notwithstanding that the wife was aware of the time limit for filing property proceedings according to advice she received from Counsel in 2013.
The husband has liabilities of $240,000 in loans borrowed to fund litigation between himself and the wife. Even if the wife succeeded in receiving a modest award there are currently costs orders against her in the amount of $81,620 which remain outstanding.
With respect to the wife’s claim for equalising superannuation accumulated by the husband during the relationship, the parties shared a common residence for 2 years and 1 month. The amount accumulated by the husband in superannuation from April 2007 to September 2010 was a modest $30,972 and is not currently accessible by either party. Any splitting order is unlikely to alleviate the wife’s hardship.
In determining an application under section 44 of the Act the Court is not required to undertake a detailed hearing of the merits of the proposed claim (see Hall & Hall (1979) FLC 90- 679 at p.78,627).
In Whitford (supra) at 78,144 the Full Court said:-
“On an application for leave under section 44(3) two broad questions may arise for determination. The first of these is whether the Court is satisfied that hardship would be caused to the applicant or child of the marriage if leave were not granted. If the Court is not so satisfied, that is the end of the matter.”
The child A is not a child of the relationship. The husband has the full time care of X. I am not satisfied that there is a real probability of the wife succeeding in her property claim. The costs of further litigation are likely to be substantial. Granting leave to extend time is unlikely to alleviate any hardship for the wife. The application to extend time is refused.
Even if I had been satisfied that the wife had proved hardship, I would not have exercised the discretion in her favour. The standard application period expired in September 2012. She became aware when seeking advice following the husband filing for parenting orders in September 2013 that she was required to file her application for adjustment of property interests within 2 years following separation. She provided no adequate explanation for delay.
The wife filed her application 1 year and 6 months out of time. The length of the relationship was short some 3 years and 5 months. The period in which the parties shared a common residence was 2 years and 1 month. Though the husband accrued substantial superannuation post separation only a modest amount of superannuation accrued during the relationship. The net non - superannuation assets at separation were about $55,000 to $60,000. The husband had a substantial income during the relationship which was applied for the benefit of the parties, he supported the wife’s tertiary studies, had introduced a property where both parties lived for a time and subsequently rented that property for twelve months, he had borrowed $40,000 from his father to fund the Property B property and provided financial and practical support for the wife’s child from another relationship. The wife cared for X without the assistance of the husband during his deployments otherwise the parties shared her care. The wife took her car, engagement ring and furniture when she left the relationship. She asserted that she was content to accept no property division from the husband on the basis of a purported agreement for him to pay for X's school fees. The husband denied any such agreement however he did pay (omitted) school fees for X post separation until December 2013. Currently each party’s liabilities are greater than his/her net assets.
The husband would suffer significant prejudice if leave to extend time was granted. He commenced a relationship with Ms K in November 2012. On 21st September 2013 he and Ms K purchased a property in (omitted) in joint names taking a joint mortgage. Both his father and Ms K’s mother contributed to the acquisition of the (omitted) property. There are several third parties whose interests are likely to be affected by the wife’s property application. Though it is unnecessary to determine this issue, I would not have exercised my discretion in the wife’s favour.
B. Application to vary the parenting orders
Final orders were made by Judge Neville on 18th December 2014 following a lengthy trial where both parties were represented by Counsel. On 14th January 2015 the mother lodged an appeal against those orders. On 23rd December 2015 following a fully contested appeal, the Full Court of the Family Court dismissed the appeal against the orders of Judge Neville and made an order that the appellant pay the respondent’s costs.
On 27th July 2016 the mother filed an application to vary the parenting orders of 18th December 2014 such that “the orders for the care (of X) are made in reverse or X is permitted to stay (with her mother) on Thursday and Sunday nights.” This application was brought 7 months after the Full Court dismissed her appeal.
In Rice v Asplund (1979) FLC 90 – 725 Evatt CJ said at 78,906:-
“The principles which should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs.”
In King v Finneran (2001) FLC 93 – 079 the Full Court said it was open for a Court to consider as a threshold issue whether there is a significant change in circumstances to permit re-litigation of a parenting matter.
Justice Warnick in SPS and PLS (2008) FLC 93 -363 at [81] said as follows:-
“When the threshold question described in Rice and Asplund is determined as a preliminary matter it remains a determination “on the merits.” Where an application is dismissed at a preliminary stage it is not dismissed for some technical reason, such as the failure of a party to appear or some lack of competence with form and procedure but rather because assuming the evidence of the applicant is accepted there is insufficient change of circumstance shown to justify embarking on a hearing.”
The “rule” in Rice and Asplund (supra) requires an applicant to establish a change in circumstances before a final parenting order can be varied and/or parenting arrangements (whether pursuant to Court orders or otherwise) can be re-evaluated.
In Newling v Newling; Mole (Applicant) (1987) FLC 91 – 856 the Full Court (Barblett, Fogarty and Nygh JJ) at paragraph 19 indicated:-
“Since the principle that the welfare of the child is the paramount consideration applies in all matters affecting children it is …not appropriate to speak of cause of action estoppel. What the rule really illustrates is that it is generally speaking not in the interests of the child to have repeated applications concerning its custody and access before the Court. There must, in other words, be an end to litigation.”
In Zabaneh (1986) FLC 91 – 766 the Court said:-
“Fresh applications for custody or access should not be entertained unless there exists a substantial change in circumstances.”
It is open for the Court to consider the reasons for judgment in an earlier case on the issue whether there are sufficient circumstances to justify the reopening of the issue of whom a child should live with and/or whether there should be any variation to final orders. (see Hayman & Hayman (1976) FLC 90 – 140 at pp 75, 680 and 75,691)
The mother filed a Notice of Risk on 27th July 2016. She asserted that X is subjected to psychological and emotional abuse in her father’s care. She made various allegations which pre-dated both the final parenting orders and the Full Court’s consideration of the matter on appeal.
Since 2012 there have been 16 reports received by the Office of Children Youth and Family Support the most recent being 28th June 2016. The last several reports complain about emotional abuse of X by the father over the telephone. The Director General has not deemed it necessary to intervene. These matters are the subject of the contravention applications filed by the mother.
The complaints contained in the mother’s affidavits centre around her perceived dissatisfaction with telephone communication and the impact she said this was having on X. In addition she complained that the father was sending her harassing correspondence. She made a number of generalised complaints about the father’s ability to care for X with respect to X’s clothing, hair and fingernails. The correspondence annexed to the mother’s affidavit which she alleges constitutes harassment by the father does not support her contention.
For his part the father raised concerns about the impact that many of the mother’s conversations by phone were having upon X, incidents which he said the child found very distressing.
The Court notes the careful analysis of his Honour Judge Neville’s reasoning in Wemple & Dautry (No 2) [2014] FCCA 2847 regarding the competing parenting applications in particular the mother’s application that X live with her which is repeated in her application for the “orders to be reversed.” He determined at [268] and [269] of his judgment:-
[268] “…there is some risk to the father’s relationship with X while ever she remains living with the mother according to the father’s evidence, that of Ms K and that given by the Family Consultant. I formed the same view very clearly ….(the mother) lacks significant insight into the consequences of her conduct particular with respect to proper, basic prudential parenting.
[269] I have no confidence at all that the mother would promote X’s relationship with the father. …I consider that while ever X attends her current school, the mother will endeavour to disrupt her schooling with a view to frustrating the father until ultimately he will succumb out of fatigue or exasperation of the contest to the mother’s wishes. …I have no confidence at all that the mother will desist from making outrageous allegations against the father ….which will continue to require the (employer omitted) to expend further resources on them…the mother has continued this appalling cycle of allegation, complaint and investigation.”
At [271] Judge Neville opined “I share the concern (of the Independent Children’s Lawyer) about the mother’s ability to provide for the child’s psychological needs.”
There is nothing in the mother’s material relied on which supports a material change in circumstances since the orders were made on 18th December 2014.
The Full Court of the Family Court in December 2015 dismissed the mother’s appeal against the orders of 18th December 2014 and noted at [62] that:-
“…there were a range of concerns regarding the mother, apart from the issue of her lack of credibility, which supported the making of orders which vested sole parental responsibility in the father and required that the child should live with him.”
The mother has failed to establish that there has been a material change in the child’s circumstances which would warrant re-opening parenting proceedings. The mother’s parenting application is dismissed.
C. Stay of contravention applications
On 18th December 2015 the mother filed a contravention application. On 17th June 2016 the mother filed a further contravention application. The parties were required to file any further interim applications by 13th January 2017. On 16th January 2017 the mother filed a further contravention application. The father seeks to stay the contravention proceedings pending the payment by the mother of outstanding costs orders.
The father contends that the mother is in contempt of Court in failing to pay costs orders outstanding. No attempt has been made by the mother to make any payment with respect to those orders. The mother did not acknowledge the existence of any costs orders as a liability in her financial statement filed 27th July 2016.
There are two outstanding costs orders in relation to parenting proceedings being an order made on 11th November 2015 in the amount of $6,500 by Registrar McNamara and an order made on 16th June 2016 in the amount of $30,547 by Registrar Halbert.
In addition there are further costs orders outstanding with respect to matters involving the parties in the Magistrates Court on 10th June 2014 in the amount of $2,500 plus GST, a costs certificate granted in the ACT Supreme Court on 17th February 2016 in the amount of $42,073 and a further costs order made in the ACT Supreme Court pursuant to the mother’s unsuccessful attempt to set aside another costs order with the quantum unknown.
On 11th February 2016 Judge Hughes noted that “the Court declined to list the application for contravention filed on 18th December 2015 for hearing when costs orders made against the respondent remain outstanding.” Since that time the mother has filed 2 further contraventions, her complaint centring on communication issues between the parties, a matter that was explored at length before Judge Neville and addressed in his judgment delivered on 18th December 2014. In his judgment at [278] his Honour found:-
[278] “…in my view it is clear that the parties are unable to communicate; they are unable to trust each other. The mother has made and continues to make unfounded accusations against the father. The parenting relationship is severely fractured and …is severely poisoned. While ever the mother continues with this conduct that she has exhibited over the last 12 months or so, I have the gravest doubts that the parenting relationship can or could be repaired….”
I adopt the submissions of Counsel for the father that this Court has the power to stay proceedings in circumstances where a party is in contempt of a court order. In Fahmi [1995] FLC 92-637 the Full Court said as follows:-
“…It will be clear from what we have said earlier that we consider that a court has a discretion as to whether or not to hear a person who is in contempt of an order of the Court where that person seeks to be heard in the same proceedings in which the order was made. It is unnecessary given our conclusion in this case that we comment further on the matters which should be taken into account in the exercise of that discretion (beyond endorsing what was said in our earlier quotation from the judgment of Lord Oliver in Morgan-Grampian). Those matters will obviously vary depending on the nature of the application made by the person in contempt.”
The Full Court in Fahmi (supra) when referring to the Court’s power to stay proceedings said:-
“In the Morgan-Grampian case, which was a case where a journalist, who refused to comply with an order which would result in revelation of his sources, sought to be heard on appeal against that order, Lord Bridge in considering the question of whether a contemnor can be heard, and having referred to the judgments of Romer LJ and Denning LJ in Hadkinson went on to say:-
‘I cannot help thinking that the more flexible treatment of the jurisdiction as one of discretion to be exercised in accordance with the principle stated by Denning LJ better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions. But in practice in most cases the two different approaches are likely to lead to the same conclusion, as they did in Hadkinson itself ...(P.46.)’
Lord Oliver, in agreeing with Lord Bridge, said as follows:-
‘Whilst, therefore, there must clearly be a strong indication in favour of preserving a litigant's right to appeal, even though he may be in contempt of court, I am in entire agreement with my noble and learned friend Lord Bridge of Harwich in thinking that there must also be a discretion to refuse to hear the contemnor and in favouring the flexible approach suggested by the judgment of Denning LJ in Hadkinson v. Hadkinson [1952] P. 285. One can, of course, envisage, as he did in that case, circumstances in which the court would be unlikely to exercise its discretion in favour of hearing a contemnor - he instanced the case of an abuse of the process or of disobedience to the order impeding the course of justice - but I would not be in favour of laying down any rules for the exercise of discretion, though it can do no harm to give examples which may serve as guidelines. For instance, where the appeal is grounded on an alleged lack of jurisdiction to make the order at all, it would seem, in general, right that the contemnor should be heard. At the other end of the scale, if the contempt consisted of a contumacious refusal to reveal the whereabouts of a ward of court, it would be likely to require a strong case before the court would consider entertaining a contemnor's appeal.’”
The Full Court said further in Fahmi (supra):-
“We have quoted the relevant passages from the judgments of Lord Bridge and Lord Oliver because they make clear that the discretionary approach is now the preferred approach in circumstances where the question arises as to whether or not a person in contempt should be heard when that person seeks to appeal the order in respect of which that person is in contempt. We would respectfully agree that this is the correct approach in the circumstances of an appeal or in other circumstances which can be categorized as being in the same cause or the same proceedings as that in which the order, which is the subject of the contempt, was made.”
The costs orders of $6,500 outstanding from 11th November 2015 and of $30,547 outstanding from 16th June 2016 were made in relation to parenting proceedings. The allegations contained in the contravention applications relate to similar communication issues canvassed at length during proceedings before Judge Neville. Both matters arise from the same cause or the same proceedings.
The mother has disregarded the previous Court orders for costs made in the proceedings making no attempt to comply with the orders or make arrangements for periodic payment. The mother has not acknowledged the existence of the costs orders in her most recent financial statement. In her affidavit filed on 27th July 2016 at [18] she deposed that she intended to appeal the costs orders, which was likely to take some considerable time and “if not overturned” she expected the orders “to be paid from property settlement monies”. Proceedings in relation to X have now been ongoing for 3 and a half years.
The Court has a discretion to stay the hearing of further applications in the same proceedings whilst the costs order remain outstanding. The Court exercises its discretion to stay the contravention proceedings until the costs order made on 11th November 2015 by Registrar McNamara is satisfied.
D. Application for leave to amend the notice of appeal of the decision of the AAT
On 18th December 2015 the mother lodged an appeal against the refusal of the Child Support Registrar to amend the administrative assessment for child support. On 1st July 2016 the Administrative Appeals Tribunal published a decision dated 29th June 2016 in relation to the mother’s application for review. The decision under review was affirmed.
On 27th July 2016 the mother sought an order that “the decision of the Child Support Tribunal (sic) is dismissed as it has left me below the poverty line and is in conflict with the findings of another statutory agency.”
On 15th November 2016 she appealed the refusal of the Administrative Appeals Tribunal to amend the administrative assessment.
In submissions filed by Counsel on behalf of the father, Mr James of Counsel argued that the application for review of the decision of the Administrative Appeals Tribunal should be dismissed as no question of law had been identified.
Section 44 of the Administrative Appeals Tribunal Act1975 (Cth) deals with appeals to the Federal Circuit Court from decisions of the Tribunal. Section 44AAA(1) provides as follows:
“If the Tribunal as constituted for the purposes of a proceeding that is a child support first review does not consist of or include a presidential member, a party to the proceeding may appeal to the Federal Circuit Court of Australia on a question of law from any decision of the Tribunal in that proceeding.”
The mother failed to identify any appeal ground on a question of law in her appeal against the Tribunal’s decision.
There was some irregularity in the manner this application proceeded before the Court on 20th February 2017. Ms Smithies, solicitor for the mother made an oral application for leave to amend the grounds for reviewing the decision of the Administrative Appeals Tribunal acknowledging that the grounds “must raise a question of law.” I infer that Ms Smithies acknowledged that the mother’s appeal as drafted in its present form could not succeed. Ms Smithies articulated the question of law as follows:
“There were some core irregularities in Mr Wemple’s documents attention to which was drawn by (the applicant mother) but the decision maker has failed to make any reference to those core irregularities in the reasons and had those been referred to and taken into account the decision made by the decision maker isn’t open on the evidence.”
Mr James on behalf of the father opposed the amendment having foreshadowed that the appeal was not likely to succeed due to the absence of an error of law being raised. He submitted that in the event that the Court was minded to grant leave to amend he made an oral application on behalf of the father for security for costs.
Oral application for security for costs
On 20th February 2017 the Court granted the mother leave to amend the notice of appeal of the decision of the Administrative Appeals Tribunal. The Court further ordered that pursuant to section 117 of the Act the mother pay into the father’s solicitors trust account the sum of $10,000 to be held as security for costs no less than 28 days prior to the date for hearing the mother’s amended notice of appeal of the decision of the Administrative Appeals Tribunal. In the event that the mother fails to make that payment by the relevant due date the father’s solicitor will notify the Associate and the amended notice of appeal will be dismissed.
I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 16 March 2017
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