Wilder and Child Support Registrar
[2009] FamCAFC 161
•7 September 2009
FAMILY COURT OF AUSTRALIA
| WILDER & CHILD SUPPORT REGISTRAR | [2009] FamCAFC 161 |
| FAMILY LAW – APPEAL - Application in an Appeal – Extension of time to file an application for Leave to Appeal – An appeal in relation to enforcement proceedings of a child support debt and related orders for costs – An appeal from an application for a review of orders made issuing an enforcement warrant and a Writ of Possession in relation to real property – Where Appellant filed a Notice of Appeal / Application for Leave to Appeal on an incorrect form within time – Where the history of the proceedings have been protracted – Where the Respondent has a right to retain the benefit of the judgment – Where the appeal is futile – Application dismissed |
| Family Law Act 1975 (Cth) Family Law Rules 2004 Child Support (Registration and Collection) Act 1988 (Cth) |
| Aon Risk Services Ltd v Australian National University (2009) 258 ALR 14 |
| APPELLANT: | Mr Wilder |
| RESPONDENT: | Child Support Registrar |
| FILE NUMBER: | SYC | 1997 | of | 2008 |
| APPEAL NUMBER: | EA | 86 | of | 2009 |
| DATE DELIVERED: | 7 September 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | O'Ryan J |
| HEARING DATE: | 3 September 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 24 June 2009 |
| LOWER COURT MNC: | [2009] FamCA 742 |
REPRESENTATION
| THE APPELLANT: | Mr Wilder in person |
| COUNSEL FOR THE RESPONDENT: | Ms Fusitu’a, solicitor |
| SOLICITOR FOR THE RESPONDENT: | Australian Government Solicitor |
Orders
The Application in an Appeal filed on 10 August 2009 on behalf of Mr Wilder be dismissed.
The orders made by Rose J on 27 August 2009 be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Wilder & Child Support Registrar is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 86 of 2009
File Number: SYC 1997 of 2008
| Mr WILDER |
Appellant
And
| Child Support Registrar |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Before me for hearing is an Application in an Appeal filed on 10 August 2009 by Mr Wilder (“the Father”) seeking an extension of time to file an application for leave to appeal orders of Fowler J. The Respondent is the Child Support Registrar.
The Father appeared before me without legal representation. Given this fact, and the paucity of evidence as to the background and procedural history, I made available for inspection by the parties the relevant Court files. The parties also agreed that I could inspect the files so as to obtain a better understanding of what has happened.
The Father was born in April 1946 and the Mother was born in June 1954. The parties were married in early 1981 and separated in December 1991.
There are two children of the marriage M born in 1981 and E born in 1986. Both children are now adults.
I had the benefit of written submissions filed on behalf of the Child Support Registrar on 2 September 2009.
BACKGROUND
I will start in 2000. However my impression was that there may have been considerable litigation and child support issues even before this time.
On 9 March 2000 an enforcement summons was filed in the Local Court (Family Matters) at Sydney on behalf of the Deputy Child Support Registrar. In the summons it was contended that the Father was indebted to the Commonwealth under s 30 of the Child Support (Registration and Collection) Act 1988 (Cth) (“Child Support Collection Act”) for $33,394.84 by way of arrears of child support and under s 67 of the said Act for $8,044.46 by way of late payment penalties, being as at 24 February 2000 a total of $41,439.30. In summary, the Child Support Registrar sought recovery of the arrears of child support and child support related debts. The history of some of what happened thereafter appears in an affidavit sworn on 12 September 2002 by Mr AW, an officer of the Child Support Agency.
On 21 July 2000 the Father filed a Departure Application in the Federal Magistrates Court at Parramatta. The enforcement proceedings were then adjourned to await the outcome of this application by the Father.
On 5 June 2001 the Departure Application of the Father was determined and orders were made for departure from assessment. The following orders were made by a Federal Magistrate:
1.For the period 1 July 1996 to 30 June 1997 the annual rate of child support in respect of the children [M] born […] 1982 and [E] born […] 1986 is set at $13,606.
2.For the period 1 July 1997 to 30 June 1998 the annual rate of child support in respect of the said children is set at $9,983.
3.For the period 1 July 1998 to 30 June 1999 the annual rate of child support in respect of the said children is set at $1,216.
4.All other applications save as to costs are dismissed.
The Father did not appeal against the departure order of 5 June 2001. The order of 5 June 2001 significantly reduced the child support debt owed by the Father. However a substantial child support debt remained outstanding and open to enforcement by the Child Support Agency. Thereafter steps were taken by the Child Support Registrar to have the enforcement proceedings heard and determined.
The enforcement proceedings were then listed for hearing in the Local Court (Family Matters) in Sydney on 20 August 2001 and at the conclusion of the hearing the following declarations and orders were made:
THE COURT DECLARED that there is owing to the Commonwealth in respect of amounts owing under registered maintenance liabilities of the Respondent (inclusive of penalties) the sum of $23,574.39.
IT IS ORDERED:-
1.That the Respondent pay to the office of the Child Support Registrar the costs of the Commonwealth fixed in the sum of $1,993.90 by payment in accordance with order 3 hereof.
2.That the Respondent pay to the Child Support Registrar
i. the sum of $21,574.39 (being $13,870.78 in arrears of child support and $7,713.61 in late payment penalties); and
ii. the sum of $2,000.00 in arrears of held support, payable in accordance with Order 11 hereof.
3.That payment of the sums in orders 1 and 2 hereof be to the Child Support Agency office at 121-125 Henry Street, Penrith within 28 days of the date of these orders.
4.That in the event that the Respondent is in default of Order 3 herein, [Mr W] shall be appointed as Trustee ("the Trustee") for and on behalf of the Commonwealth of Australia, and shall be empowered, pursuant to Order 33, rule 7 of the Family Law Rules, to take possession of and realise the real property owned by the Respondent as follows:
i. the real property situated at and known as [the Blue Mountains Property] in the State of New South Wales, being comprised in Folio Identifier […] ("the property").
5.That for the purpose of sale pursuant to Order 4 herein, the Respondent shall, within 10 days of being requested in writing, sign all documents and do all things necessary to transfer his interest in the property to the Trustee to be held on trust for sale and the property be forthwith sold for the best price reasonably obtainable and the proceeds of sale applied:
i. firstly, in payment of all costs, commissions and expenses of the said trust transfer and sale including all costs incurred by the said Trustee;
ii. secondly, in discharge of any encumbrance upon the property;
iii. thirdly, in payment of the total sum referred to in Orders 1 and 2 herein;
iv. fourthly, in payment of the residue to the Respondent.
6.That in the event that the Respondent is in default of Order 5 herein, the Trustee shall be empowered to sign all documents and do all things necessary to transfer the Respondent's interest in the property into the name of the Trustee.
7.That the Respondent be restrained from assigning, transferring, encumbering or otherwise dealing with the property except for the purpose of transferring his interest in the property to the Trustee in accordance with Order 5 herein.
8.That the Respondent's interest in the property be charged with the debt set out in Orders 1 and 2 hereof, until that debt has been paid in full.
9.That the Applicant shall be at liberty to recover any sum outstanding under Order 1 or 2 herein by statutory enactment.
10.That the Applicant be at liberty to apply herein with respect to the terms and conditions and execution of the sale and the implementation of these Orders generally.
11.That the sum of $2,000.00 referred in Order no. 2(ii) hereof is payable within 7 days of a decision of the Registrar refusing an objection to a Change of Assessment determination on 1 February 2001, PROVIDED ALSO, that if the Respondent is successful in his objection either party may apply to the Court on 3 days notice that the sum be made payable forthwith, or stayed as appropriate.
On 11 September 2001 the Father filed in the Family Court a Notice of Appeal from a court of summary jurisdiction against the orders made on 20 August 2001.
The history of what then happened is unclear however it appears that the Child Support Registrar contended that the Father required leave in accordance with s 110(2) of the Child Support Collection Act to appeal against the judgment of the Magistrate of 20 August 2001.
It also appears from a summary of argument filed on behalf of the Child Support Registrar on 13 September 2002 that the Notice of Appeal from a court of summary jurisdiction filed on behalf of the Father in September 2001 came before the Court on six occasions between 17 October 2001 and 10 May 2002.
On 4 July 2002 Boland J made a number of orders including an order granting the Father leave to file an application for leave to appeal out of time. Her Honour made an order that the Father file and serve an application for leave to appeal within 21 days and further that he file an affidavit in support of the application. The Father did not comply with these orders.
On 23 July 2002 the Father filed in the Family Court an application seeking to set aside the orders made in the Local Court on 20 August 2001.
On 21 August 2002 a Judicial Registrar granted the Father leave to amend his Notice of Appeal from a court of summary jurisdiction to include an order that he be given leave to appeal against the decision of 20 August 2001.
On 20 September 2002 Mullane J made an order that the application by the Father for leave to appeal against the orders made in the Local Court on 20 August 2001 be refused and further that the Father’s Notice of Appeal from a court of summary jurisdiction filed on 11 September 2001 be dismissed. His Honour also made an order that the Father pay to the Child Support Registrar the sum of $9,925.70 as costs. I observe that in ex tempore reasons his Honour noted that the Father did not comply with the orders made by Boland J in relation to the filing of the application for leave and the affidavit in support and that the Father did not file such documents until a month after the 21 days had expired.
On 15 October 2002 the Father filed an application for leave to appeal against the orders made by Mullane J on 20 September 2002. The Father attached to the application a draft Notice of Appeal. I observe that in the Notice of Appeal there were four grounds in which, in summary, the Father complained that he had suffered “substantial serious and sustained injustice”.
I also observe that in his reasons of 20 September 2002 Mullane J said that the Father had “treated the proceedings as some sort of mind game, intellectual contest. This is an abuse of process. The Court should not countenance that sort of conduct by litigants, and should act to discourage it”.
On 29 May 2003 the Full Court dismissed the application filed by the Father for leave to appeal to the Full Court against the orders made on 20 September 2002 by Mullane J and made an order that the Father pay costs assessed in the amount of $2,000.00.
On 16 June 2003 the Father filed an application for special leave to appeal to the High Court. On 12 March 2004 leave was refused and the Father was ordered to pay costs of $2,000.00.
On 9 April 2008 the Child Support Registrar filed in the Family Court an Application in a Case seeking enforcement of the orders made in the Local Court in August 2001, including the sale of the Blue Mountains Property of the Father. The Child Support Registrar sought the issue of an enforcement warrant pursuant to r 20.16 of the Family Law Rules2004 for the seizure and sale of property. This application was supported by an affidavit sworn on 31 March 2008 by Ms A who is a solicitor employed by the Australian Government Solicitor. Evidence was given about the efforts made between 2004 and 2008 to try and enforce recovery of the amounts due.
The Application filed on 9 April 2008 was listed before a Registrar on 12 May, 2 June and 7 July 2008 and there was no appearance by or on behalf of the Father. The application was then listed on 19 August 2008 and there was no appearance by either the Child Support Registrar or the Father. The Registrar adjourned the matter to a Case Management Hearing on 27 October 2008 and notified the Child Support Agency of the order.
By letter dated 3 October 2008 the Australia Government Solicitor acting for the Child Support Registrar wrote to the Registrar of the Family Court and advised of an inability to serve the Father with the Application in a Case filed on 9 April 2009 seeking enforcement of the orders made in the Local Court in August 2001, including the sale of the Blue Mountains Property of the Father. The letter from the Australian Government Solicitor requested that the application for an enforcement warrant together with the application for a writ of possession be dealt with ex parte pursuant to the Family Law Rules and that the return date of 27 October 2008 be vacated. Accordingly there was enclosed with the letter copies of the enforcement warrant and an affidavit of Ms S, a Client Service Officer in the Child Support Agency sworn 30 September 2008. The letter from the Australian Government Solicitor also provided an alternate request if the Court was of the view that the applications could not be dealt with ex parte. It was requested that personal service of the Application in a Case filed on 9 April 2008 be dispensed with and that service of the said documents be effected on the Father by way of ordinary post at the Blue Mountains Property. Accordingly there was enclosed an Application in a Case and an affidavit by Ms M, Paralegal at the Australian Government Solicitor sworn 3 October 2008.
By letter dated 8 October 2008 a Case Coordinator of the Family Court wrote to the Australian Government Solicitor and the Father and advised that in light of the recently filed applications by the Australian Government Solicitor the return date of 27 October 2008 be vacated and all outstanding matters be dealt with on a new return date on 3 November 2008. On 3 November 2008 there was no appearance by or on behalf of the Father. The Registrar in court adjourned the matter to be dealt with in chambers on 2 December 2008.
On 2 December 2008 the application filed on behalf of the Child Support Registrar on 9 April 2008 for the issue of an enforcement warrant for the seizure and sale of property was dealt with by a Registrar in chambers. The Registrar issued the enforcement warrant as requested by the Child Support Registrar.
On 15 December 2008 the Registrar adjourned the outstanding orders sought in the Application in a Case filed by the Child Support Registrar on 9 April 2008 to a Judicial Registrar’s call over on 4 February 2009. The Registrar was of the view that the orders sought in orders 3 and 4 of the Application could not be dealt with by a Registrar. Rule 20.24 of the Family Law Rules makes provision for orders in relation to real property in circumstances where an enforcement warrant has been issued.
On 4 February 2009 a Notice of Address for Service was filed by the Father in which he gave his address for service as the Blue Mountains Property.
On 4 February 2009 the Father appeared before a Registrar and it was noted by the Registrar that the Father “has been handed documents by the CSA”. The matter was then adjourned to 24 March 2009.
On 18 February 2009 the Father filed a Response to an Application in a Case. He sought orders as follows:
1.Please permanently stay all the orders requested by the Child Support Registrar.
2.Please stay all the orders requested until the wife in this case complies with the access orders as granted to the children and husband by Justice E.R. Baker on the 22nd October 1993…
3.Please ensure that the wife grant to the children and respondent husband the access as granted to the children and husband by Justice Baker 22.10 1993.
4.Please stay the dispossession of the husband and father from the house and property at [the Blue Mountains Property].
On 18 February 2009 the Father filed a Financial Statement in which he gave his occupation as a “Volunteer” and deposed that his average weekly income was $333.00. The Father also deposed that his weekly personal expenditure was $100.00; that he owned property totalling $300,000.00; and had liabilities of $1,000.00.
On 18 February 2009 the Father filed an affidavit that he affirmed on 18 February 2009. I am not going to repeat what he said in this affidavit however, in summary, he contended that the amount currently claimed by the Child Support Agency is less than $4,100.00 and that this amount “was paid to the agency many years ago, it seems it was incorrectly credited”. He also referred to parenting orders that were made on 22 October 1993 and contended that the Wife did not “fulfil this grant of access to the children and husband”.
On 24 March 2009 Judicial Registrar Johnson heard the Application in a Case filed on 9 April 2008 by the Child Support Registrar and made the following orders in accordance with paragraphs 3 and 4 of the orders sought in the said application, namely:
3.That, within 21 days of service of a sealed copy of this order on any person apparently in residence at real property described as [the Blue Mountains Property] in the State of New South Wales and comprised in folio identifier […] (“the property”), the property be vacated by any person or persons occupying or in possession of the property, including any person occupying the property under a lease or written tenancy agreement (“a tenant”), to enable sale of the property pursuant to order 4 of the court orders (or the enforcement warrant).
4.That by way of giving effect to the court orders (or the enforcement warrant), a Registrar of the Court sign a transfer of real property on behalf of the Respondent (pursuant to s106A of the Family Law Act) transferring the interest of the Respondent in the real property described as [the Blue Mountains Property] in the State of new South Wales and comprised in Folio Identifier […] (“the property”) to [Mr W].
The Judicial Registrar also made the following orders:
2.That the above orders and the enforcement warrant issued on 2 December 2008 are stayed until 29 June 2009.
3.That the Court notes the purpose of the stay is to permit the respondent father opportunity to satisfy the debt or to sell the property the subject of these orders.
4.That the respondent father notify the Child Support Registrar in writing each 4 weeks about action being taken by him pursuant to these orders.
5.That the husband pay to the Australian Government Solicitor $2,160.98 for their costs in these enforcement proceedings such to be paid directly by the respondent father or to be deducted from any net proceeds of sale of the property the subject of these orders.
On 6 April 2009 the Father filed an Application in a Case seeking the following orders:
1.Order of utmost importance to the father is Access of children to father please.
2.Awaiting written orders seemingly not yet issued by court. Case heard by Judicial Registrar Johnson 24th March 2009.
3.Request same orders requested before Judicial Registrar please.
4.Please stay orders until further court considerations please.
5.Thank you for considering this sad case.
On 15 May 2009 a Response to the Father’s application filed on 6 April 2009 was filed by the Child Support Registrar seeking dismissal of the Father’s application and that costs of the proceedings be paid out by the sale of the Blue Mountains Property. This application was supported by an affidavit sworn on 15 May 2009 by Mr J, a solicitor employed by the Australian Government Solicitor.
On 24 June 2009 Fowler J heard the application filed by the Father on 6 April 2009. At the conclusion of the hearing his Honour delivered extempore reasons and made the following orders:
1.The Application in a Case filed 6 April 2009 is dismissed.
2.Leave is granted to the respondent to make an oral application for costs.
3.The applicant is to pay the respondent’s costs as agreed or assessed.
In very brief reasons Fowler J said:
2. The provisions of costs are dealt with by section 117 of the Act, which does provide that in ordinary circumstances each party will pay and bear their own costs, but there is reposed in the Court a general discretion to make orders for costs, and there are a number of matters that can be taken into account in making that determination. It seems clear from the warrant of execution that there are assets with which a costs order could be met by the husband. The proceedings before the Court today were ill-founded and misconceived and should not have been brought. In the circumstances the Child Support Registrar is brought to Court unnecessarily and I would propose in that event to make an order that the applicant pay the respondent's costs as agreed or assessed.
Notwithstanding what the Father had said in the application he filed on 6 April 2009 as to the orders he sought, I am proceeding on the basis that what he in effect sought was a review of the orders made by the Judicial Registrar on 24 March 2009. This is confirmed in Part C of the Application in a Case filed by the Father on 6 April 2009 where he ticked the box “Review of the decision of a Judicial Registrar or Registrar”.
In so far as the Father sought leave to appeal against the orders made by Fowler J on 24 June 2009 he was required to do so within 28 days.
It is confusing but I understand that the Father contended that a Notice of Appeal or Application in an Appeal was filed within time specified by the Rules of Court but was lodged on the incorrect form. He contended it was lodged on a form titled “Notice of Appeal (child support)” and that he did this following a specific enquiry at the Family Court and assurance that the correct form was being lodged. He said however that the original Notice of Appeal or Application in an Appeal was returned. The Father put no evidence before me corroborating what he contended he did.
On 17 July 2009 the Father filed an Application in a Case seeking a stay of the orders to sell his residence until “the appeal process is exhausted”. I infer that the Father was seeking a stay of the orders made on 24 June 2009 by Fowler J. On 31 July 2009 a Registrar dismissed that application filed on behalf of the Father on 17 July 2009 as no Notice of Appeal had been filed.
On 10 August 2009 the Father filed the Application in an Appeal which I am now dealing with. The Father is seeking an extension of time to file an application for leave to appeal against orders of Fowler J. In his draft Notice of Appeal the Father disclosed that he is appealing the orders made by Fowler J on 24 June 2009. However, given the fact that the Father is not represented I infer from the procedural history above that the Father may be seeking to appeal not only the orders of Fowler J which reviewed the order for an execution warrant and the orders made by Johnson JR on 24 March 2009 which sanctioned the outstanding orders sought in the Application in a Case filed by the Child Support Registrar on 9 April 2008, but perhaps also the orders of the Registrar made on 2 December 2008 granting the enforcement warrant for the seizure and sale of property as requested by the Child Support Registrar.
In the part of the Application in an Appeal filed by the Father on 10 August 2009 where the orders sought are specified the Father said:
1.Please accept this “Application to Appeal” it is only just out of time.
2.The appeal was filed within time, unfortunately on the incorrect form.
3.The applicant approached the Appeal Resistrary [sic] and was advised that he correct form was being completed, once filed it was returned by mail.
4.This application is filed very soon following the correct time to appeal.
5.Order requested is “Appeal Accepted” please.
6.The applicant father is at great risk of losing the former family home where there are many significant memories, including the birth of our dear son [E] in a “Home Birth” at the insistence of the mother.
7.Further significant momory [sic] is returning “Home” with our dear daughter [M] within one day of her birth, her first entry into her “Home”.
The Father attached to the application a draft Notice of Appeal and in Part E of the Notice the following are said to be the Grounds of Appeal:
1.The order of utmost importance is access by the children to the father please.
2.Access for the children to the father is granted by the Honourable Justice Baker, please reinstate access for children.
3.The Wife has consistently and repeatedly not granted access as ordered by the Honourable Justice Baker in the Family Court of Australia.
4.Access issues were not given sufficient consideration by his Honour Justice Fowler, unfortunately.
5.Please stay the sale of the residence of the Father, the former family home until access for the dear children is re-established and satisfactory.
6.Lack on consideration to an amount already paid by Father reducing debt to nil.
7.Money previously paid would eliminate the claim debt completely, no debt.
8.Thank you for considering this sad, sad case.
In the support of the Application the Father swore an affidavit on 7 August 2009 in which he deposed:
1.I understand that the underlying principal of the Family Court is to serve the best interests of The Children. I too serve the best interests of the children as a volunteer worker for education and schools. Please accept that the sale of the family home, especially and particularly in this case, is **not** in the best interests of the dear Children. Unfortunately the family home is to be sold yet the basic underlying Child Support Debt is approximately $4,000.00.
2.Please accept this out of time appeal. The appeal was filed within time with the Sydney Appeal Reistrary [sic]. Unfortunately it was lodged on the incorrect form. It was lodged on the form headed “Notice of Appeal (Child Support)”. It was so lodged following a specific enquiry at the Family Court, Sydney Appeal Registrary [sic] and assurance that the correct from was being lodged. The original Appeal was returned. Please accept this Appeal.
On 18 August 2009 the Father filed an Application in a Case in which he sought: “Please STAY the sale of the family home at [the Blue Mountains Property] until all APPEAL processes are exhausted, please”. In support of the application, on 18 August 2009 the Father filed an affidavit in which he made clear that he was seeking a stay of the orders made by Fowler J on 24 June 2009.
On 19 August 2009 Rose J made an order in chambers that the application filed by the Father on 18 August 2009 and the affidavit in support be “served as soon as possible”. Then on 27 August 2009 Rose J made the following orders:
1.That there be a stay of execution of the Orders made 24 March 2009 pending determination of the Applicant’s pending application for Leave to Appeal on the following terms and conditions:-
a) That the Applicant diligently prosecute the Application for Leave to Appeal.
b) In the event of the Application for Leave to Appeal being successful the Applicant diligently prosecute his appeal should a further stay be granted.
Notations:
A.That a recommendation has been made for the Applicant to seek legal advice as soon as possible in relation to all issues he proposes to agitate.
B.That the Appeals Registrar will inform the parties in writing as soon as possible of the date for hearing of the pending application for Leave to Appeal.
On 2 September 2009 the Child Support Registrar filed a Response to the Father’s Application filed on 10 August 2009 seeking that it be dismissed and that he pay costs.
On 2 August 2009 an affidavit was sworn on behalf of the Child Support Registrar by Ms Fusitu’a who is a solicitor employed by the Australian Government Solicitor. Attached to the affidavit was a copy of the transcript of the hearing before Fowler J on 24 June 2009. There was also filed a written Outline of Submissions signed by Ms N who is a solicitor employed by the Australian Government Solicitor.
On 3 September 2009 an affidavit was sworn by Mr T on behalf of the Child Support Registrar. He gave evidence about attempts made on 2 September 2009 to serve the Husband with a copy of the documents filed on behalf of the Child Support Registrar on 2 September 2009.
RELEVANT PRINCIPLES
Recovery of child support debt
In Ostasheen Pty Ltd v. Deputy Registrar of Child Support (1998) FLC 98-001 (“Ostasheen”) the Full Court (per Finn, Kay and Maxwell JJ) concluded that all of the powers under the Family Law Act and the provisions of the Family Law Rules were available to the Court in exercising jurisdiction to enforce child support under the Child Support Collection Act. This would include an enforcement warrant pursuant to r 20.16 of the Family Law Rules. In Ostasheen the Full Court referred to s 105 of the Child Support Collection Act and confirmed that the powers under the Family Law Act and the provisions of the Family Law Rules applied to child support enforcement proceedings as a result of that section. It should be noted, however, that s 105 specifically notes that Part X of the Family Law Act (the Part concerned with Appeals) is excluded from that section. The Full Court in Ostasheen said at [21]:
When such a court entertains proceedings under the Child Support Collection Act, recourse may be had by virtue of s105 of that Act, to the provisions of the Family Law Act, Rules and Regulations as if the proceedings were proceedings under the Family Law Act 1975. However it is important for present purposes to note that Part X of the Family Law Act 1975 (which is concerned with Appeals) is expressly excluded by s105 from applying to proceedings under the Child Support Collection Act …
The enforcement warrant issued by the Registrar in the Family Court on 2 December 2008 was issued in a Form 16 prescribed under r 20.16 of the Family Law Rules. Thus the jurisdiction which the Registrar exercised in this case was the jurisdiction conferred on the Family Court by s104(1) of the Child Support Collection Act which confers jurisdiction of matters arising out of the Child Support Collection Act to the Family Court.
Leave to Appeal
Section 107(1) of the Child Support Collection Act provides that an appeal lies from a decree by a single judge of the Family Court exercising original or appellate jurisdiction under the Child Support Collection Act to the Full Court of the Family Court. Section 107(1) relevantly provides that such an appeal only lies with the leave of the Full Court.
An application for leave to appeal under s 107(1) of the Child Support Collection Act should be made within the time prescribed by the standard Rules of Court or within further time as it is allowed in accordance with the standard Rules of Court. It is relevant to note that s 107(7) provides that an application for an extension of time within which to institute an appeal under s 107(1) may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court. Section 107(9) further provides that no appeal lies under this section from an order or decision made under s 107(7).
Thus if a single judge of the Family Court, as it is in this case, exercises jurisdiction under the Child Support Collection Act, an appeal will only lie from that Judge with leave. It is also relevant to note, as I have discussed earlier, that the provisions of the Family Law Act concerning appeals do not apply to proceedings under the Child Support Collection Act pursuant to s 105(1).
Other relevant principles
Rule 22.03 of the Family Law Rules provides that a Notice of Appeal, including a Notice of Appeal in which leave to appeal is sought must be filed within 28 days after the date the order appealed from was made. The relevant orders were made by Fowler J on 24 June 2009. The application the subject of these proceedings was filed on 10 August 2009 and therefore an extension of time is required.
Rule 1.14 of the Family Law Rules provides that:
(1) A party may apply to the court to shorten or extend a time that is fixed under these Rules or by a procedural order.
(2) A party may make an application under subrule (1) for an order extending a time to be made even though the time fixed by the rule or order has passed.
(3) A party who makes an application under subrule (1) for an extension of time may be ordered to pay any other party’s costs in relation to the application
Pursuant to s 94(2D)(e) of the Family Law Act an application for an extension of time within which to apply for leave to appeal may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, or by a Full Court of the Family Court.
I also observe that r 1.04 of the Family Law Rules provides:
The main purpose of these Rules is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case.
Note Section 43 of the Act sets out the principles that the court must apply when exercising its jurisdiction under the Act.
Rule 1.06 of the Family Law Rules provides:
The court must apply these Rules to promote the main purpose, and actively manage each case by:
…
(e) setting realistic timetables, and monitoring and controlling the progress of each case;
(f) ensuring that parties and their lawyers comply with these Rules, any practice directions and procedural orders;
(g) considering whether the likely benefits of taking a step justify the cost of that step;
…
(j) having regard to any barriers to a party’s understanding of anything relevant to the case.
Rule 1.07 of the Family Law Rules provides:
To achieve the main purpose, the court applies these Rules in a way that:
(a) deals with each case fairly, justly and in a timely manner;
(b) encourages parties to negotiate a settlement, if appropriate;
(c) is proportionate to the issues in a case and their complexity, and the likely costs of the case;
(d) promotes the saving of costs;
(e) gives an appropriate share of the court’s resources to a case, taking into account the needs of other cases; and
(f) promotes family relationships after resolution of the dispute, where possible
Rule 1.08 of the Family Law Rules deals with the responsibility of parties and lawyers in achieving the main purpose and provides:
(1) Each party has a responsibility to promote and achieve the main purpose, including:
(a) ensuring that any orders sought are reasonable in the circumstances of the case and that the court has the power to make those orders;
(b) complying with the duty of disclosure (see rule 13.01);
(c) ensuring readiness for court events;
(d) providing realistic estimates of the length of hearings or trials;
(e) complying with time limits;
(f) giving notice, as soon as practicable, of an intention to apply for an adjournment or cancellation of a court event;
(g) assisting the just, timely and cost-effective disposal of cases;
(h) identifying the issues genuinely in dispute in a case;
(i) being satisfied that there is a reasonable basis for alleging, denying or not admitting a fact;
(j) limiting evidence, including cross-examination, to that which is relevant and necessary;
(k) being aware of, and abiding by, the requirements of any practice direction or guideline published by the court; and
(l) complying with these Rules and any orders.
(2) A lawyer for a party has a responsibility to comply, as far as possible, with subrule (1).
Note The court recognises that a lawyer acts on a party’s instructions and may be unable to establish whether those instructions are correct.
(3) A lawyer attending a court event for a party must:
(a) be familiar with the case; and
(b) be authorised to deal with any issue likely to arise.
Note The court may take into account a failure to comply with this rule when considering costs (see subrule 19.10 (1) and subclause 6.10 (1) of Schedule 6).
In dealing with applications for extension of time, the decision often relied upon by is that of McHugh J in Gallo v Dawson (1990) 93 ALR 479. His Honour said at 480:
That rule provides that the Court or a Justice may enlarge the time appointed by the Rules for doing an act upon such terms, if any, as the justice of the case may require and that the enlargement may be ordered although the application is not made until after the expiration of the time appointed or fixed for doing the act. The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v. Cumarasamy (1965) 1 WLR 8, at p 12; (1964) 3 All ER 933, at p 935: “The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
See also McMahon and McMahon (1976) FLC 90-038; Casson and Casson (1988) FLC 91-962 and Tormsen and Tormsen (1993) FLC 92-392.
In Joshua v Joshua (1997) FLC 92-767 Lindenmayer J said at 84-440:
The power of the Court to extend the time for the institution of an appeal is a discretionary power to be exercised when it is shown to the Court's satisfaction by the applicant that strict compliance with the rules will work an injustice to the applicant: Gallo v Dawson (1990) 93 ALR 479 at 480. Thus, as the Full Court of this Court said in Coombs and Moore (1990) FLC 92-175 at 78,189:
“The Court, in our view, must have demonstrated to it by the applicant for an extension of time that an injustice will occur if the appeal does not proceed. It is not enough for the Court to have doubts about the propriety of the order sought to be set aside.”
Accordingly, the first and most important question to be determined upon such an application as this is whether the applicant has established that there is a substantial issue to be raised on appeal. If not, the application must fail. If so, then other considerations may become relevant to the exercise of the discretion, namely: the extent of the delay and the reasonableness of any explanations offered for it; any hardship or prejudice flowing to the respondent from the applicant's delay which cannot be compensated for by orders as to costs or otherwise: and the desirability, in the public interest, that there be finality to litigation. In that regard see also McMahon and McMahon (1976) FLC 90-038 at 75,144 and Tormsen and Tormsen (1993) FLC 92-392.'
I observe that recently the High Court in Aon Risk Services Ltd v Australian National University (2009) 258 ALR 14 had occasion to consider the approach to be taken in relation to applications for amendment and in particular considered r 21 of the Courts Procedures Rules 2006 (ACT) which states the purposes of the ACT Rules. I refer to the joint reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ at [92]-[103] and [114]. Although it was not discussed during submissions before me, it could be said that “a just resolution of proceedings remains the paramount purpose of [r 1.04 of the Family Law Rules]; but what is a ‘just resolution’ is to be understood in light of the purposes and objectives stated”: per Gummow, Hayne, Crennan, Kiefel and Bell JJ at [98].
CONCLUSION
It was submitted by the Child Support Registrar that the basis upon which the Father seeks leave to appear are given as:
·insufficient consideration given to access by the children;
·insufficient consideration given to money previously paid to eliminate the debt claimed;
·money paid if considered would eliminate the debt completely; and
·lack of consideration to stay of sale of the residence of the Father and the children.
Reference was made to what was said in Part D of the application of the Father under the heading: “The orders you are seeking” and also what was said in the Notice of Appeal that was attached to the application.
The Child Support Registrar conceded that given the short delay no prejudice was occasioned by the late filing of the application. However, it was submitted that one matter to which the Court would have regard in determining whether to grant the application is the prospects of success of any appeal if that leave were granted. It was submitted that the matters referred to as grounds of appeal would have no prospects of success.
The Child Support Registrar submitted that the errors alleged by the Father do not relate to the application which was before Fowler J and clearly seek to go behind earlier determinations of other Courts which were not the subject of the proceedings before Fowler J.
It was further submitted, that there has been a history of litigation arising from the enforcement proceedings initiated by the Child Support Registrar and the subsequent orders made such that the child support debt remains undischarged and the Child Support Registrar is unable to recoup the costs of defending these various applications. It was submitted that the prejudice to the Child Support Registrar by the continuance of this litigation is clear.
I have considered whether there is sufficient explanation for failure to file and serve the application for leave to appeal within time. I have also considered the Father’s claims that he filed a Notice of Appeal or application for leave to appeal within the time specified by the Rules of Court albeit on an incorrect form. I am of the view that for a self represented litigant an indulgence by the court to accept an incorrect form as the deemed Notice of Appeal or application for leave to appeal may have ordinarily been expected: Jorgenson v Slater [1999] 3 VR 95. However, for reasons I will hereafter give, I am of the view that this case is an instance of an exception.
I do have some concerns about what the Father contended in relation to documents he filed as I have no evidence before me corroborating his account. However, I am going to proceed on the basis that the Father has provided a sufficient explanation for failure to file and serve the application for leave to appeal within time. As I have already observed the Child Support Agency conceded it was not prejudiced by the short delay occasioned by the late filing of the application.
I have considered what I believe to be some of the history of the proceedings. I would simply describe the history that I have ascertained as protracted and torturous.
I have considered the conduct of the parties. I accept that the Father has not had the benefit of legal representation and thus, from time to time he may have understandably misunderstood what he was required to do. However it is very clear to me that he will not pay the debt. The Father is now contending that his primary concern is the welfare of the two adult children. This is irrelevant. I have no doubt that the conduct of the Father has caused significant public cost and inconvenience and that he will do and say whatever is necessary to delay and frustrate the conclusion of the proceedings.
I have considered the nature of the litigation. The matter concerns proceedings for the enforcement of a child support debt and orders for costs that have been made from time to time in relation to such proceedings. The Father was successful in obtaining a reduction in the quantum of the amount that was originally claimed but he refuses to pay the reduced amount. This is in circumstances where he did not appeal against the orders that quantified the reduced amount he should pay. The enforcement proceedings have now been on foot for almost six years.
I have considered the right of the respondent to the application to retain the benefit of the judgment. The Child Support Agency is entitled to recover the amounts due and nothing has been put by the Father that persuades me that the amounts claimed are incorrect. During submissions before me the Father made some reference to having paid for school fees and beds and perhaps other expenses for the benefit of the children. However at first he admitted that such payments were made before the orders in 2002. He then suggested that it was after 2002. However there is no evidence that I have been able to discover that corroborates the contentions of the Father as to payments, if any, he made.
I have considered the desirability of finality of the litigation. The need for finality of this litigation is self evident.
I have considered whether the grounds of appeal raise a substantial issue, which is an issue that would materially affect the outcome of the case if resolved in the Father’s favour. In my opinion the grounds of appeal do not raise any arguable issue. In my view the appeal is futile.
I have considered the consequences to the parties of the granting or refusing the application and whether any hardship suffered by the respondent to the application may be able to be compensated for and injustice avoided by putting the applicant on terms.
My first observation is that there are no terms that could be imposed on the Father that would be of any effect. In my view the prejudice that would be caused to the Child Support Agency if the application was granted substantially outweigh any prejudice that would be caused to the Father by refusing the application. The granting of the application would only result in a protraction of the litigation and cause unnecessary cost and inconvenience.
In conclusion, taking into account all of the relevant matters, I am of the view that the application should be dismissed. I also propose to discharge the orders made by Rose J.
I certify that the preceding 81 paragraphs are a true copy of the reasons for judgment of the Honourable Justice S.R. O’Ryan
Associate:
Date: 7 September 2009
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