ZB & DB

[2006] FamCA 464

[2006] FamCA 464

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No SA70L of 2005
AT MELBOURNE  File No MLM8995 of 2005

BETWEEN:

ZB
Appellant Husband
- and -

DB
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  FAULKS DCJ, KAY & COLEMAN JJ
DATE OF HEARING:                 1 June 2006
DATE OF JUDGMENT:             1 June 2006

APPEARANCES:  The Appellant Husband in person

Mr Wilson of Counsel, instructed by, Pearsons, Barristers and Solicitors, 794 Pascoe Vale Road, Glenroy, Vic 3046 appeared on behalf of the Respondent Wife.

ZB AND DB

SA70L of 2005

CORAM:  FAULKS DCJ, KAY & COLEMAN JJ

DATE OF HEARING:         1 June 2006

DATE OF JUDGMENT:     1 June 2006

Catchwords:           CHILD SUPPORT – NATURAL JUSTICE – Appeal against interim orders providing for departure from administrative assessment and adult child maintenance – Procedural fairness – Respondent a litigant in person – Oral application for interim orders made after hearing seeking final orders adjourned as short served – No opportunity given to address on propriety of proceeding with interim hearing – No opportunity offered to cross examine applicant on her means or the children's needs – Only issue examined was the payer's capacity to pay – Departure from usual procedures amounted to a lack of procedural fairness – Appeal allowed and matter remitted for rehearing.

KAY J:

1. This is an appeal against orders were made by Bennett FM, as she then was, on 16 November 2005, relating to interim child support and interim adult child maintenance. 

1. The appellant is the father of the two children, A, born in January 1988, and B, born in April 1994.  The respondent in the mother of the children.

1. The mother brought proceedings in the Federal Magistrates Court seeking a departure from administrative assessment of child support in relation to the two children and an order for adult child maintenance for the elder child, A, upon his attaining 18 years of age in January 2006.  Those applications came on for hearing before her Honour on 15 November 2005 and it appears that they had been short served and that the father had only 11 days notice of the application. 

1. The child support claims had been through the processes of the Child Support Agency in relation to the departure order but had been referred to the court on the basis that they raised issues that were too complicated for the Agency to deal with. 

1. When the matters came on for hearing before the Federal Magistrate, the father, who was then unrepresented, immediately applied for an adjournment, complaining about the short service of the proceedings. 

1. The transcript indicates that having introduced himself to the court and having asked for the adjournment, there was then a significant discussion about the father's financial affairs and what it was he needed the adjournment for, including issues relating to the disposition of moneys that he had received by way of retrenchment and matters relating to his health. 

1. It became apparent that her Honour was proposing to grant the adjournment, and indeed, whilst she contemplated having the case heard later that week, eventually determined that it could be heard in her calendar on 5 April 2006 and she made an order for an adjournment in the meantime.  There was then discussion about the granting of some interim injunctions to freeze the father's financial position to ensure that there would be some assets available for enforcement of any orders that were made.

1. Shortly before lunch, at 12.59, counsel for the mother then informed the Federal Magistrate that he had prepared some minutes of orders that his client would seek on an interim basis.  He said that:

“…what is contemplated is that there would be some restraining orders and there would be a departure order until further order and, if your Honour grants the adjournment, depending on which date it comes back, an adult child maintenance order until further order in respect of A.”

1. Her Honour inquired:

“But how can I make those orders when he hasn't had - if I grant the adjournment because he needs to put a case together so that he is heard, how can I grant the orders without him being able to put a case together and be properly heard?”

Mr Wilson replied:

“Because they're interim orders, your Honour, and the material, the subpoenaed ‑ ‑ ‑

HER HONOUR:   It doesn't matter every week.  You've still got to find the money.  It doesn't matter whether you're finding it for a final order or an interim order, it's still money.”

1. After some further discussion the matter then proceeded without any request of the father as to his attitude towards a hearing of an interim oral application and without any discussion as to the procedure to be followed if such an application was to take place, to the position where the father was put into the witness box and cross-examined about his financial affairs.  Then, at the conclusion of his evidence and after some short submissions by counsel for the mother, her Honour delivered a judgment in which her Honour found that she was satisfied that there was a basis for a departure from administrative assessment of child support and that it was appropriate that an interim order be made which effectively doubled the amount of child support from the existing assessment to the order that was made.  She also found it appropriate to make the interim orders for adult child maintenance once A attained the age of 18 years.

1. We have been provided with an outline of submissions by the father in relation to the appeal that contained 39 pages of single-spaced, small font typing that raise a myriad of issues. Most of the issues that seem to be raised by that outline of submissions appear to have absolutely no validity whatsoever. There is clearly power in the court to make an order for an interim child support departure as a result of the provisions of s 141(g) of the Child Support  (Assessment) Act 1989 (Cth). There are clearly powers to make orders for interim adult child maintenance by reason of the provisions of s 66P(g) of the Family Law Act 1975 (Cth). 

1. The only issue that appears to us to be of concern is an issue of procedural fairness.  This was a case involving a litigant in person.  There was a marked departure from the normal procedure as a result of the events that occurred.  At no time was he asked or invited by the learned Federal Magistrate to address her on the appropriateness or otherwise of departing from the normal procedures to be followed in such a case, such as allowing an oral application for interim child support and maintenance to be made when there was no written application, in determining it without giving adequate time for the matters to be considered by the respondent to that application, and in changing what would be considered to be the normal course of evidence - that is, in a child support or maintenance case - of hearing the applicant's case first before determining the respondent's case.  At no time was he invited to address on the propriety of a variation of the normal procedures at all.  Indeed, the transcript is entirely silent about it. 

1. In child support proceedings it is necessary to demonstrate the existence of grounds for departure, which in this case would involve determining what those grounds were.  Particularly, in this case it was being argued that they concerned the unjustness of the assessment having regard to the father's financial affairs. 

1. If the grounds for departure were made out, there was then an obligation under s 117(4) of the Child Support (Assessment) Act to determine the financial circumstances of both of the parents and the proper needs of the child.  No questions were asked of the father as to his views about the mother's capacity to provide for child support or what the proper needs of the children were. He was  never invited to address the court about it.  The only issue that seems to have been examined in the process was the issue of his apparent capacity, or lack thereof, to make appropriate provision for the maintenance and support of the children.

1. In my view, there was such a dramatic departure from the normal procedures adopted here that there was a lack of procedural fairness offered to a litigant in person for whom it was thought it was appropriate to grant an adjournment to because of short service. There was an obligation on the trial judge to have at least invited the litigant to give consideration to whether or not the process seeking interim orders should then be allowed to continue and to at least invite the litigant to address on the propriety of that course or otherwise.

1. The failure to do so, in my view, is a clear breach of the guidelines that were restated by the Full Court in Re F (2001) FLC 93-072 as to the requirement to ensure that procedural fairness was afforded to all the parties and to ensure a fair trial and the obligation to inform the litigant in person of the manner in which the trial was to proceed and invite at least submissions on whether there should be a departure from normal processes.

1. In the circumstances, given that these were interim orders and that a final hearing has taken place but, we are informed, the judgment is pending by Hughes FM, it would be appropriate for us to allow the appeal by setting aside the substantive orders that were made, being orders 1 to 4 of the orders made by Bennett FM on 16 November 2005, and remitting back to the Federal Magistrates Court the issue of the appropriate sum, if any, to be paid for child support and adult child maintenance from the date of the hearing before Bennett FM until the delivery of judgment by Hughes FM. It seems sensible that if possible Hughes FM should conduct that rehearing.

FAULKS DCJ:

1. I agree with the orders his Honour proposes to make.  I add the following comments only.  I also found the submissions made on behalf of the appellant unhelpful, misdirected and in most cases misapplied.  In agreeing with his Honour Kay J that there was a lack of procedural fairness afforded to the appellant in this matter, I do not wish for my part to be taken to in any way endorse the submissions made by the appellant about this matter in the document that was given to us. 

1. I agree with the lack of procedural fairness identified by his Honour Kay J.  I do not agree with the comments made by the appellant or his adviser, whoever that may be, as formulated in his submissions.  Moreover, it is and has been a waste of everyone's time that this matter proceeded this day in the sense that if the appellant had either informed himself or been adequately advised, he would have realised that because the issues that are being dealt with in this interim matter had been dealt with in the final hearing, that there was absolutely no point in this appeal. 

1. Accordingly, while I believe that it is important that the matter of principle should be upheld, the appeal in itself was a waste of time and of the respondent's money, or the Commonwealth's money if there was legal aid involved.  Otherwise, however, I agree with the orders that his Honour proposes to make.

COLEMAN J:

1. I agree with the orders proposed by Kay J and his Honour's reasons for those orders and also the observations of the Deputy Chief Justice in relation to the matter.  I have nothing to add with respect to the appeal itself.

FAULKS DCJ:

1. We are agreed that there should be a certificate for the respondent in respect of the appeal.

KAY J:

1. The formal orders of the court will be:

1.        The applicant have leave to appeal orders 1, 2 and 3 of the orders made by Bennett FM on 16 November 2006.

2.        Orders 1 to 4 of the orders made by Bennett FM on 16 November 2005 be set aside.

3.        The issue of the appropriate sums, if any, to be paid for child support and adult child maintenance pending the determination of the applications filed 27 October 2005 be otherwise remitted for further hearing by Hughes FM or, if she is not available, such other Federal Magistrate as the Chief Federal Magistrate shall determine.

4. The Court grants to the respondent a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

.

I certify that the 23 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate