[2012] FamCAFC 191 Coversheet and Orders Page 1
FAMILY COURT OF AUSTRALIA
MCDONALD & SANDLER [2012] FamCAFC 191
FAMILY LAW ─ APPEAL ─ PROCEDURE ─ Appeal against orders made by the
Federal Magistrate summarily dismissing an application by the appellant in parenting
proceedings ─ Whether the Federal Magistrate decided the summary dismissal
application by reference to the substance of the principles governing such
applications, and, whether, prior to doing so, her Honour sufficiently informed the
appellant of the basis upon which she would decide the application to summarily
dismiss his application ─ Where the Court rejected the challenge to the Federal
Magistrate’s refusal to adjourn the proceedings as the appellant requested ─ Where
the Court was not persuaded that the evidence before the Federal Magistrate
necessarily established that the appellant’s application for variation of the existing
parenting orders was necessarily doomed to fail, or was hopeless, although, the
prospects of success appeared extremely limited ─ Where the Court reluctantly
concluded that the substantive provisions of the test governing applications for
summary dismissal, were not adequately conveyed to the appellant during the course
of the hearing, or applied in the determination of the summary dismissal application
─ Where the Court was unable to accept that the proceedings could have had no other
outcome ─ Where notwithstanding that the appellant’s own application, and evidence
in support of it at trial, contributed materially to what this Court has found to be the
Federal Magistrate’s error, the appeal was allowed, and the application for summary
dismissal remitted to the Federal Magistrates Court for re-determination.
FAMILY LAW ─ APPEAL ─ COSTS ─ Costs certificates awarded to the parties with
respect to the appeal, and the re-hearing of the summary dismissal application.
Family Law Act 1975 (Cth) ss 69ZN, 70NBA
CDJ v VAJ (1998) 197 CLR 172
DL & W [2012] FamCAFC 5
Lindon v Commonwealth (No 2) (1996) 136 ALR 251
Re F: Litigants in Person Guidelines (2001) FLC 93-072
Rice and Asplund (1979) FLC 90-725
Stead v State Government Insurance Commission (1986) 161 CLR 141
Walton v Gardiner (1993) 177 CLR 378
APPELLANT: Mr McDonald
RESPONDENT: Ms Sandler [2012] FamCAFC 191 Coversheet and Orders Page 2
FILE NUMBER: CAC 472 of 2012
APPEAL NUMBER: EA 76 of 2012
PLACE DELIVERED: Sydney
PLACE HEARD: Canberra
JUDGMENT OF: Coleman J
HEARING DATE: 1 November 2012
LOWER COURT JURISDICTION: Federal Magistrates Court
LOWER COURT JUDGMENT DATE: 29 June 2012
LOWER COURT MNC: [2012] FMCAfam 654
REPRESENTATION
COUNSEL FOR THE APPELLANT: Mr Howard
SOLICITOR FOR THE APPELLANT: Joseph Tallarita
COUNSEL FOR THE RESPONDENT: Ms Lane
SOLICITOR FOR THE RESPONDENT: Clancy & Triado
DATE DELIVERED: 15 November 2012 [2012] FamCAFC 191 Coversheet and Orders Page 3
ORDERS
(1) That the appeal be allowed.
(2) That the orders of Federal Magistrate Whelan made on 28 May 2012 be set
aside.
(3) That the application filed 29 March 2012 be remitted for re-hearing before a
Federal Magistrate other than Federal Magistrate Whelan.
(4) That the Court grants to the Appellant a costs certificate pursuant to the
provisions of s 9 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 Appellant in
respect of the costs incurred by the Appellant in relation to the appeal.
(5) That 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.
(6) That the Court grants to each party a costs certificate pursuant to the provisions
of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate
that, in the opinion of the Court, it would be appropriate for the AttorneyGeneral to authorise a payment under that Act to each party in respect of such
part as the Attorney-General considers appropriate of any costs incurred by
each party in relation to the new trial granted by these orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym
McDonald & Sandler has been approved by the Chief Justice pursuant to s 121(9)(g)
of the Family Law Act 1975 (Cth). [2012] FamCAFC 191 Reasons Page 1
Appeal Number: EA 76 of 2012
File Number: CAC 472 of 2012
Mr McDonald
Appellant
And
Ms Sandler
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
1. By Amended Notice of Appeal filed 17 September 2012 Mr McDonald (“the
appellant”) appealed against orders made by Whelan FM on 28 May 2012
summarily dismissing an application by the appellant in parenting proceedings
commenced by him against Ms Sandler (“the respondent”) with respect to the
child of the former relationship of the parties, O, who was born in 1998 and is
now approaching 15 years of age.
2. The appellant sought that the order dismissing his application for parenting
orders be set aside, and the application remitted for hearing by a
Federal Magistrate other than Whelan FM.
3. On 12 October 2012 the appellant filed an application for leave to adduce
further evidence in the appeal. Such further evidence was contained in an
affidavit sworn by the appellant on 10 October 2012.
4. Counsel for the respondent did not oppose the receipt of the appellant’s further
evidence, but submitted that, if accepted, the evidence would not “demonstrate
that the order under appeal is erroneous” (see CDJ v VAJ (1998) 197 CLR 172 at
par 109).
THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
CANBERRA [2012] FamCAFC 191 Reasons Page 2
BACKGROUND
5. On 29 March 2012 the appellant filed an application in the Federal Magistrates
Court seeking a departure order with respect to his Child Support liability.
Relevantly for present purposes, the appellant also sought the following orders:
2. That the father be responsible for all costs for the child spending time with
him.
3. That the Father be responsible for all costs incurred in spending time with
the child.
4. That the child spend time with the father as follows;
5. a. 21 days in July English school holidays commencing on the 4th day of
the holidays in 2012 and each year thereafter;
6. b. 14 days in the April English school holidays commencing on the 4th day
of the holidays in 2013 and each odd year thereafter;
7. c. 14 days commencing on 23rd of December 2012 and each year
thereafter;
8. d. For a further period of 21 days in each calendar year in the United
Kingdom, Europe or any destination he so chooses, upon the father
providing 60 days notice and an itinerary to the mother providing there is
no direct disruption to [O’s] schooling.
6. The application was prepared by the appellant at a time when he was
unrepresented, a situation which continued until the conclusion of the
proceedings before the learned Federal Magistrate.
7. As the appellant’s Counsel fairly and sensibly conceded before this Court, the
application was at best “cryptic” in articulating the relief which the appellant
was really seeking in the parenting proceedings which he had commenced.
8. Parenting orders, which were made by consent, in the Family Court on
2 February 2010 were in existence at the time the appellant filed his application
in the Federal Magistrate’s Court. Those orders provided:
...
5. [O] spend time with the Father whilst she lives in the United Kingdom as
follows:
(a) For 21 days in Australia during the English July (or summer)
school holidays commencing in Canberra Australia on the 4th
day of the holiday;
(b) For 14 days in Australia during the United Kingdom April
school holidays in 2012 and each alternate year thereafter;[2012] FamCAFC 191 Reasons Page 3
(c) For 14 days in Australia commencing in Canberra on or about
23 December 2010 and each alternate year thereafter;
(d) For a further period of 21 days in each calendar year in the
United Kingdom or Europe as agreed between the parties upon
the Father providing the Mother with at least 60 days prior
notice;
(e) As may be further or otherwise agreed.
6. To give effect to the orders requiring [O] to spend time with the Father in
Australia:
(a) [O] may travel as an unaccompanied minor at the Mother’s
election from her 13th birthday;
(b) Prior to her 13th birthday [O] may travel as an unaccompanied
minor for any travel within Australia and otherwise the Mother
be responsible for an accompanying adult to travel with [O];
(c) The Mother book and pay for the return airfare for [O] and
provide the Father with a complete itinerary including
international flight details and the identity of any accompanying
person travelling with [O] at least 28 days prior to [O’s]
departure from the United Kingdom by email;
(d) The Mother’s brother, [Mr E], not attend any changeover where
the Father is collecting [O].
7. To give effect to any time between the Father and [O] pursuant to subparagraph 5(e) above the Father:
(a) Be responsible for all costs of travel between his home and the
United Kingdom and for any costs of travel including [O’s]
travel during that time;
(b) Collect and deliver [O] from the Mother’s home unless the
Father requests she deliver [O] to Heathrow or Gatwick airports
and have her then travel as an unaccompanied minor to a
destination in the UK, or Europe, and the Father then collect [O]
at the nominated destination;
(c) [O] attend school each day of such period unless otherwise
agreed with the Mother, save and except for up to 2 consecutive
school days provided such does not interfere with any exam,
concert or special extra-curricular activity;
(d) Provide to the Mother only a final itinerary and contact details
including his mobile telephone number whilst with [O] at least
28 days prior to the time occurring including whether
changeover occur at the home, Gatwick or Heathrow by email [2012] FamCAFC 191 Reasons Page 4
and at this time inform the Mother of whether he requires her to
provide [O’s] passport to him and the Mother to so provide the
passport if required with [O];
(e) The Father return [O’s] passport to the Mother at the conclusion
of this time with [O].
...
9. On 24 May 2012 a response to the appellant’s application was filed on behalf
of the respondent. That response sought that the application of the appellant
filed 29 March 2012 “be summarily dismissed”.
10. It is not in doubt that, at best, two working days intervened between the
probable receipt by the appellant of the respondent’s response, and the hearing
of the proceedings before the learned Federal Magistrate on 28 May 2012.
11. On 28 May 2012 the learned Federal Magistrate ordered that a garnishee of the
appellant’s wages, insofar as it related to arrears of Child Support, be stayed
pending the determination of an application to the Social Security Appeals
Tribunal (“SSAT”) to vary the obligation to pay Child Support, which gave rise
to the arrears, which were being garnisheed.
12. The learned Federal Magistrate sensibly determined that the appellant’s
application for a departure order with respect to his Child Support obligation
ought not be entertained until the appellant had “ventilated” those issues in the
pending SSAT proceedings. No part of the present appeal relates to any orders
made by the learned Federal Magistrate with respect to Child Support.
13. On 29 June 2012 the learned Federal Magistrate published edited reasons for
her dismissal of the appellant’s application for parenting orders on
28 May 2012. The reasons for that decision are pivotal to the determination of
the appellant’s appeal.
THE GROUNDS OF APPEAL
14. The Amended Notice of Appeal articulated six grounds, two of which were
particularised in some detail.
15. Counsel for the appellant, with his customary willingness to engage with the
real issues for determination, observed that the challenges fell within two broad
categories, the first being “procedural unfairness”, a reference to grounds 1 and
2 of the Amended Notice of Appeal, the second being “irregularities in the
judgment”, a reference to grounds 3 – 6.
16. It is convenient to consider grounds 1 and 2 conjointly. As grounds 3 – 6 raise
somewhat different challenges, the Court will consider each of them
individually. [2012] FamCAFC 191 Reasons Page 5
Natural justice challenges
17. Grounds 1 and 2 provided:
1. That there was a denial of natural justice and/or procedural unfairness to
the Appellant father. Particulars
a. When the matter was before Federal Magistrate Brewster the
learned Federal Magistrate agreed to the father’s request for an
adjournment of the proceedings for all extant matter except the
father’s application for stay under section 111(c) of the Child
Support (Assessment) Act 1987 (“the father’s stay application”);
b. The only matter that was stood down by Federal Magistrate
Brewster for hearing that day was the father’s stay application;
c. When the matter was transferred to Federal Magistrate Whelan,
Her Honour was misled by counsel representing the mother as to the
matters to be determined in that he advised Her Honour that the
mother’s application for summary dismissal was to be determined
as well as the father’s stay application;
d. The father was not given an opportunity to clarify the matters for
determination by Federal Magistrate Whelan;
e. The father’s request to Federal Magistrate Whelan for [an]
adjournment to obtain legal advice was ignored by Her Honour.
2. That the learned Federal Magistrate did not advise the father of the nature
of the proceedings or of the law applied in determining such proceedings.
Particulars
a. The proceedings as considered by Her Honour were for the
determination of the mother’s application for summary dismissal;
b. Her Honour did not advise the father that section 17A of the
Federal Magistrates Court Act 1999 applied to such proceedings;
c. Procedural and legal issues were otherwise not explained to the
father;
d. Her Honour did not comply with the guidelines set out in Re F:
Litigants in Person Guidelines [(2001) FLC 93-072].
18. In his written submissions in support of these challenges, Counsel for the
appellant placed some reliance upon the course the proceedings took before
Brewster FM on 28 May 2012 prior to his Honour transferring the proceedings
to Whelan FM. The Court cannot accept, in the circumstances of this case, that
anything said or not said by Brewster FM impacts upon the challenges to the
decision of Whelan FM later that day. [2012] FamCAFC 191 Reasons Page 6
19. The crux of the submissions on behalf of the appellant was that, given that
her Honour proposed to, and did entertain the respondent’s application for
summary dismissal, the appellant should have been granted the adjournment of
the proceedings which he sought. In the alternative, it was submitted that if the
refusal of an adjournment was permissible, the learned Federal Magistrate had
failed to inform the appellant, he being a litigant in person, of the basic
principles which governed the application for summary dismissal.
20. It was ultimately submitted in support of these challenges:
31. It is submitted that because the nature of the proceedings was not carefully
explained to the father procedural unfairness has resulted. The father did
not have the opportunity to fully answer the case against him as his focus
was on the stay application.
21. Counsel for the respondent submitted that:
17. ... Federal Magistrates Brewster and Whelan set out very clearly for the
Appellant, the matters which he had to establish to enable his Application
to proceed. The Federal Magistrate did not use the term “summary
dismissal” however, the Federal Magistrate was clear that she had to
consider whether his application for parenting orders could proceed. The
Respondent’s Counsel stated that that it was the Respondent’s case that if
the application for parenting orders could not continue then the substantive
Departure Application could not continue. This ultimately did not affect the
granting of a stay of the garnishee order. (Errors as in original)
22. On behalf of the respondent it was submitted that, whilst the learned
Federal Magistrate may not have expressly informed the appellant that the
respondent was seeking, and her Honour was considering, summary dismissal
of his application for parenting orders, her Honour had in substance done so,
given the explanation she gave the appellant by reference to the decision of the
Full Court in Rice and Asplund (1979) FLC 90-725 (“Rice and Asplund”). It
was thus submitted that, in the context of this particular case, the distinction
between the principles governing a summary dismissal application, and the
application of the so called “principle” in Rice and Asplund, was a distinction
without a difference.
23. In her written submissions, Counsel for the respondent referred in detail to the
transcript of the proceedings on 28 May 2012, ultimately submitting that the
learned Federal Magistrate had:
20. ... appropriately spent considerable time asking questions of the Appellant
to assist her [to] identify whether or not the Appellant had a reasonable
cause of action despite any defect in the orders sought by him. During
submissions the Appellant advanced additional reasons for seeking [2012] FamCAFC 191 Reasons Page 7
parenting orders and arguing a significant and substantial change in
circumstances. The Appellant asserted that:
a. He had not seen [O] for 12 months due to alleged breaches of orders
by the Respondent. [transcript page 4, lines 32-35]
b. There were significant differences in the financial information
received from the Respondent before the hearing and that disclosed to
the Child Support Agency. [transcript page 5, lines 2-6]
c. He could not afford to fly to the United Kingdom to spend time with
[O]. [transcript page 5, lines 38-40]
d. He is now obliged to pay child support. [page 6, lines 6-8]
e. He believed that he would be entitled to child support concessions
because of the costs of travel to see [O] and these concessions were
ultimately not available to him. [page 7, lines 22-27]
f. The assessed amount of child support was also putting in jeopardy his
ability to “have a good holiday” with [O] in Australia. [page 8, lines
3-6].
24. It was thus submitted:
21. After extensive investigation of the Appellant’s case Her Honour implicitly
found that the matters raised by him did not amount to a change in
circumstances warranting a re-opening of the parenting case. The
Appellant’s case would not have had any more likelihood of success if the
adjournment to amend his application was granted.
25. On behalf of the respondent it was also submitted, uncontroversially, that the
learned Federal Magistrate had jurisdiction to summarily dismiss the
appellant’s claim. The tests which govern the exercise of that jurisdiction were
also, and again, accurately identified by Counsel for the respondent in her
submissions.
26. For substantially the same reasons as those relied upon by Counsel for the
appellant, Counsel for the respondent disputed that the learned
Federal Magistrate had failed in her obligations to the appellant as a litigant in
person, by particular reference to the decision of the Full Court in Re F:
Litigants in Person Guidelines (2001) FLC 93-072. Whilst there are cases in
which the failure to explain the Court’s procedures, or the issues which are
raised to a litigant in person may assume significance, or even be decisive, the
Court does not perceive this to be such a case. Why that is so will become
apparent.
27. Ultimately, as Counsel for both parties acknowledged, the success or otherwise
of the natural justice complaint of the appellant falls to be determined by [2012] FamCAFC 191 Reasons Page 8
reference to the course which the proceedings took before the learned
Federal Magistrate as recorded in the transcript.
28. Shortly after the matter was called on before the learned Federal Magistrate,
Counsel for the respondent said in the course of submission: “If your Honour
agreed with my submissions as to Rice v Asplund and there was no children’s
case”. To a legally trained person, that was a clear reference to an asserted basis
for summary dismissal of the appellant’s application for parenting orders.
29. In seeking to clarify what he was seeking, the appellant confirmed that he was
“seeking a stay order urgently” with respect to the garnisheeing of his wages to
satisfy his child support obligations, but did not clarify the parenting orders
which he was actually seeking.
30. The learned Federal Magistrate, in an endeavour to clarify the issues suggested
that:
... there are two different things that I’m looking at here. One is orders that
were made by the Family Court in relation to the parenting issues and the
other issue that I’m dealing with is the child support assessment of what
child support you should be paying. ...
31. With respect to him, the appellant, at least to some extent, obscured the issues
by saying:
Well, the orders, the Family Court orders of February 2012 are causing
quite, enormous difficulties and they are not working considering the
situation of assessments and the international considerations. ...
32. Discussion in relation to the stay, which was ultimately granted, of the
garnishee order followed, before the learned Federal Magistrate suggested:
The other issue is that there is an order – there is an application by you
seeking orders which I understand to be some variation to the existing
parenting orders made by the Family Court.
33. Whilst confirming that to be so, with respect to him, the appellant again
obscured the issues by saying:
To roll all those issues into one application, your Honour.
34. Commendably undeterred, the learned Federal Magistrate recorded,
undoubtedly correctly, that the “two things” needed to be dealt with separately.
Her Honour explained that Counsel for the respondent:
has raised an issue as to whether the court ought to reconsider parenting
orders that were made only two years ago and there is a general rule, if I
can use those terms, that the court should not encourage parties to keep on
coming back to the court in relation to parenting matters and the intention
is that the orders should be final. [2012] FamCAFC 191 Reasons Page 9
35. Her Honour further stated, again, in the context of the case before her, and
correctly:
So, there really needs to be some substantial and significant change in
circumstances before the court is prepared to reopen parenting orders.
Now, if you’re saying that there’s a problem with the parenting orders
because of the child support assessment, that’s a separate issue.
36. The following exchange ensued:
MR [McDONALD]: Well, there have been significant changes, your
Honour, to the current orders, so. I haven’t seen my daughter for 12 months
because the mother has not delivered [O]. I’ve only had access to [O] for
two of the last six care periods since the orders were struck in February
2010.
HER HONOUR: Well if there’s been a failure for the child to be delivered
in accordance with those orders, that’s a contravention matter. That is not a
matter in relation to the substantive orders. If the mother has contravened
the existing orders, then the application to the court should be in relation to
that contravention.
37. As Counsel for both parties confirmed before this Court, it is not in doubt that,
pursuant to s 70NBA of the Family Law Act 1975 (Cth) (“the Act”), whether or
not a “contravention” application succeeded, once seized of such an
application, the Court has jurisdiction to vary the terms of parenting orders, as
the learned Federal Magistrate suggested to the appellant.
38. In the course of submissions which do not have significance for present
purposes, the appellant endeavoured to explain what he perceived to be the
nexus between his Child Support obligations, and his ability to spend time with
the parties’ child pursuant to the orders made in February 2010.
39. The learned Federal Magistrate carefully redirected the appellant’s attention to
the parenting application brought by him and said:
What I’m trying to I suppose ask you is, what are the significant and
substantial change in circumstances in relation to the actual parenting
orders, setting aside the child support issues to the actual parenting orders.
40. That inquiry was entirely appropriate having regard to the terms of the
appellant’s application which, as his Counsel readily acknowledged to this
Court, at best inferentially conveyed the real relief which the appellant sought.
41. As Counsel for the appellant also fairly conceded, at least in relation to the
parenting application, the affidavit of evidence-in-chief sworn on
29 March 2012 in support of such application did not, even to prima facie level,
provide evidence supportive of the relief prayed for in the parenting
application. [2012] FamCAFC 191 Reasons Page 10
42. To the extent that the affidavit evidence-in-chief of the appellant purported to
do so, under the heading “Refusal to Negotiate or Facilitate Contact”
paragraphs 26, 27, 28 and 29 of the appellant’s affidavit evidence-in-chief was,
as the learned Federal Magistrate suggested, on its face, more referrable to an
application asserting that the respondent had breached the existing parenting
orders, inferentially raising the prospect of orders for compensatory time to be
spent, or a variation of the orders for time to be spent, than an application to
vary the parenting orders per se.
43. After the exchange set out above, the learned Federal Magistrate said:
Now that is a contravention matters [sic] not a matter in relation to a
change of circumstance which would justify a variation to the existing
orders. Now, on a contravention application you may seek a variation of
the existing orders, but this isn’t a contravention application. What I’ve got
before me at the moment is an application to vary orders that were made by
the Family Court just slightly more than two years ago I think. And, I
suppose what I’m trying to give you the opportunity to do before
Mr McIvor tells me the contrary, is what are the substantial or significant
changes in the circumstances that would make a court say, we should
change those existing orders.
44. After a submission by the appellant, the learned Federal Magistrate said:
All right. So you’re saying the substantial change is that you can’t afford to
fly to the UK to spend the time with [O] ---
45. The appellant replied:
At the ordered, that’s right.
Her Honour responded:
--- as the orders specify.
The appellant then said: “Yes”.
46. After further discussion, essentially with respect to financial matters, the
appellant clarified that:
I would put forward that I pay for all travel costs and pay child support, as
you can see by my application, which would make this whole process
much simpler and much less combative, your Honour, and more chances to
see [O] ...
47. Shortly thereafter her Honour reiterated:
And at the moment, because of your financial situation, you are not able to
exercise whatever arrangements were ---
48. The discussion which ensued then related primarily to matters of child support.
Counsel for the respondent then made submissions in support of the [2012] FamCAFC 191 Reasons Page 11
respondent’s application for summary dismissal of the appellant’s parenting
application, during which reference was made to the appellant’s affidavit
evidence in support of his application filed 29 March 2012.
49. In the course of his submissions, Counsel for the respondent referred to the
changes in the parenting orders which the appellant sought. With some
justification, Counsel for the respondent asserted that there was “nothing raised
in his affidavit” which supported the changes which the appellant sought in
relation to the existing parenting orders.
50. Counsel for the respondent then said:
If the court were to entertain the father’s application, there would have to
be a family report, the child would have to travel back to Australia for the
family report, the child’s wishes at the age of 14 would have to be taken
into account and the whole thing would recommence holus-bolus.
It’s completely at odds with what’s in the child’s best interests and
completely at odds, in my respectful submission, with the clear guidance
given by the Full Court in Rice & Asplund and there’s just no significant
change in circumstances. To the extent the father seeks to wrap up Child
Support matters with children’s matters and part of his case is, well,
because of the current assessment, he can’t afford that overseas travel or
that the Child Support Agency aren’t giving him a deduction for that
overseas travel, firstly, that’s a matter he can pursue before the SSAT,
secondly, in terms of the first decision, your Honour, the first objection
decision by the Child Support Agency was based on the fact that, in
2010/2011, he didn’t travel overseas to spend time with the child so the ---
51. Counsel for the respondent having concluded his submissions, the learned
Federal Magistrate then said to the appellant:
Yes. Mr [McDonald], you’ve heard what Mr McIvor has had to say, I must
say that that’s the first time [sic] that I have to consider. The first thing that
I have to consider is whether a parenting application should be reopened
when substantially, the orders that you’re seeking, with the exception of
one variation, are the orders that are already there ---
MR [McDONALD]: Your Honour, the ---
HER HONOUR: --- with one exception and that exception is that you pay
for costs which the wife has already been prepared to pay.
MR [McDONALD]: Yes. The fixed amount of child support that requires
needs to be written into new orders, your Honour, is the only thing that the
CSA will act on. We will be stuck in, for the next four years, change of
assessments, one after another, objections, one after another. It won’t stop
for the next four years, the Child Support --- [2012] FamCAFC 191 Reasons Page 12
HER HONOUR: The changes of assessment only occur because the
financial circumstances of one or other of the parties changes.
MR [McDONALD]: Yes, you Honour.
52. The learned Federal Magistrate then said:
And if that happens, then that’s the appropriate process. I suppose one of
the difficulties I’m having with this is that it appears to me, on the face of
it, Mr [McDonald], that the application in relation to the parenting orders is
merely a vehicle to have this court take jurisdiction in relation to the Child
Support matters when there is already a proceeding in front of the SSAT.
53. The appellant replied to her Honour:
Yes, that’s the advice that I received, your Honour. That was the advice
that I received. Your Honour, the Child Support Agency will only consider
any concessions on travel after it has occurred.
54. After a number of exchanges in relation to child support, the learned
Federal Magistrate said to the appellant:
--- and you’re telling me that you haven’t got any money and that’s why
you want the orders varied, as a result of financial hardship. There’s a
contradiction, to me, in saying, “I’m suffering from financial hardship,
therefore I want the orders varied so I’m responsible for all the costs of the
child spending time with me”. That’s a contradiction; it doesn’t make any
sense, Mr [McDonald].
55. The appellant replied:
It allows [O] and I to negotiate and talk about our contact and arrangements
into the future as she grows older.
56. The learned Federal Magistrate responded:
You can do that anyway, there is absolutely no reason why – [O] is 14
years old, there is absolutely no reason why you can’t talk to [O] about
those arrangements. As I understand it, she had a skiing trip, there was a
letter written, there was an offer made for make up time, you decided you
didn’t want the make up time at the time that it was offered. Now, you
know, those sorts of – perhaps a counter proposal could have been put; it
doesn’t appear that there was. Those are things that can be negotiated but
they don’t fundamentally give rise to an argument that there has been a
significant change in the circumstances since the orders were made in 2010
that would justify the making of two orders, one that [O] spend every
Christmas with you and secondly, that you pay for all the costs of her
spending time with you.
57. The discussion then again reverted to financial matters, after which the learned
Federal Magistrate delivered her ex tempore judgment. [2012] FamCAFC 191 Reasons Page 13
58. In the light of the passages of the transcript set out above, complaints by the
appellant that he was denied natural justice cannot be upheld. The learned
Federal Magistrate “bent over backwards” to afford the appellant the
opportunity to be heard. Her Honour clearly explained the test which she was
going to apply in determining the summary dismissal application. The real
issue raised in the appeal is whether the learned Federal Magistrate applied the
correct test for the purpose of determining the summary dismissal application.
That issue has two elements:
a. Did her Honour apply the correct test when determining the
application; and
b. Did her Honour adequately and accurately explain the test to be
applied to the appellant.
If either of those questions is answered in the negative, appellate intervention
may be enlivened.
59. The essential questions for determination in the light of the grounds of appeal,
the submissions of Counsel for the parties in relation to them, and the course
which the hearing took, as recorded in the extracts from the transcript to which
reference has been made, is whether the test explained to the appellant by the
learned Federal Magistrate, howsoever described, differed in substance from
the test which governs the fate of applications for summary dismissal.
60. Implicit in the Court considering the critical issues in the appeal to be those
referred to above, is the Court’s rejection of the challenge to the learned
Federal Magistrate’s refusal to adjourn the proceedings as the appellant
requested. If the learned Federal Magistrate adequately and accurately
explained the test to be applied to the summary dismissal application to the
appellant, nothing would, or could have been achieved by adjourning the
proceedings. If her Honour either inadequately, or inaccurately explained the
test to be applied, appellate intervention would be enlivened on that basis.
61. The terms of s 69ZN, to which Counsel for the respondent referred the Court,
and the Court’s obligations to deal expeditiously with its business, support the
learned Federal Magistrate’s refusal to allow an adjournment. Moreover, as
Counsel for the respondent also submitted, nothing raised by the appellant
before the learned Federal Magistrate established the probability that, on any
adjourned occasion, things would be materially different.
62. As recorded earlier, the relief sought by the appellant was not clearly
articulated in circumstances where it could readily have been. Although, as the
discussion with the learned Federal Magistrate ultimately revealed, the basis of
the appellant’s application to vary the parenting orders was not complex, his
affidavit of evidence-in-chief, did not clearly, or necessarily reveal the basis of
his application. [2012] FamCAFC 191 Reasons Page 14
63. To the extent that the appellant had a short period of time in which to address
the summary dismissal application, this Court does not understand the
appellant to have ever suggested that to be a reason for adjournment before the
learned Federal Magistrate. Her Honour was, in this Court’s view, entitled to
decline to adjourn the proceedings.
64. Whilst the fate of these complaints in part falls to be determined by reference to
the transcript, the learned Federal Magistrate’s reasons for judgment also
assume significance.
65. The learned Federal Magistrate recorded that the existing orders of
February 2010 provided:
3. ... for the child, [O] (“the child”), who is now 14 years of age, to spend
time with the Father in Australia twice in each year, in July, and in
alternative years in April or December with the Mother to pay the costs of
the child’s travel. The Father is also entitled to spend a period of 21 days
with the child in Europe with him meeting his own travel costs and any
travel costs for the child while she is with him.
66. The effect of the amendments to the parenting orders sought by the appellant
was described by the learned Federal Magistrate as being:
4. The amendment proposed would require the Father to meet all the costs
incurred in spending time with the child. The other changes would alter the
years in which the child spent the April school holidays in Australia with
the Father and provide for the period in December to be every year rather
than every alternative year.
67. Counsel for the appellant submitted that, albeit his application was less than
clear in that regard, the learned Federal Magistrate had misunderstood the
variations in the parenting orders which the appellant was seeking. Counsel for
the appellant conceded that the time to be spent by him with the child by the
orders sought by his client in paragraphs 5, 6 and 7 of his application filed
29 March 2012 was, at best, inferentially sought to be exercised in the United
Kingdom.
68. With respect to her Honour, and accepting that neither the appellant’s written
material, or any submissions made by him clarified matters which were within
his knowledge, which should have been readily able to be clarified, it does
appear that the learned Federal Magistrate’s recording of the appellant’s
position, was not entirely accurate. Whether that changed anything, however, is
another matter.
69. The learned Federal Magistrate recorded, accurately, having regard to the
passages of the transcript to which reference has earlier been made, that:
5. The Father, when asked to address the significant change in circumstances
warranting a re-opening of the Orders made in 2010, stated that at the time [2012] FamCAFC 191 Reasons Page 15
the Orders were made he was not paying child support and that because of
the child support assessment he could not afford to fly to the UK each year
to see the child.
70. After traversing a number of submissions made on behalf of the respondent, the
learned Federal Magistrate said:
8. There is a clear contradiction, in my view, between the Father’s submission
that the substantive change in circumstances is his requirement to pay child
support, which affects his capacity to afford to visit the child, and his
application which would have him be responsible for all costs incurred in
spending time with the child.
71. Her Honour then recorded a passage of transcript to which reference has earlier
been made in these reasons. Given the potential significance of that passage, it
is appropriate to repeat it:
9. It was put to the Father by the Court:
I suppose one of the difficulties I’m having with this is that it appears
to me, on the face of it, Mr [McDonald], that the application in
relation to the parenting orders is merely a vehicle to have this court
take jurisdiction in relation to the Child Support matters when there is
already a proceeding in front of the SSAT.
MR [McDonald]: Yes, that’s the advice that I received, your
Honour. (Footnote omitted)
72. As this Court understands the issue, the appellant was in a somewhat difficult
position by virtue of his necessity to effectively “fight on two fronts”. It has not
been suggested that the SSAT, or a court exercising jurisdiction in relation to
any child support matters arising out of a determination by the SSAT could
vary the terms of parenting orders. Conversely, in the absence of having
jurisdiction under the child support legislation to do so, the Court could not, in
parenting proceedings, alter the obligations of the appellant pursuant to the
child support legislation.
73. As this Court understands the case, unless, and until the appellant secured
changes to the parenting orders, he had no possible basis for changing his child
support liability. Regrettably, the appellant did not articulate that reality as
clearly before the learned Federal Magistrate as, not surprisingly, his learned
Counsel has before this Court. As his Counsel explained the appellant’s
position in the Court below, the “clear contradiction” to which her Honour
referred was less evident.
74. With respect to her Honour, and accepting that the appellant’s statements to her
did little to suggest otherwise, the position was not quite as simple as suggested
to the appellant, and agreed to by him, without demur, in the passages set out
above.[2012] FamCAFC 191 Reasons Page 16
75. Her Honour thus concluded:
10. In my view, on the material before the Court there has not been a
significant and substantial change in circumstances since the Orders were
made in 2010.
76. The test which governs applications for summary dismissal is not in doubt, and
has been variously, but consistently expressed by judges of the High Court on a
number of occasions in recent times.
77. In Lindon v Commonwealth (No 2) (1996) 136 ALR 251 at 256 (“Lindon”)
Kirby J said:
1. It is a serious matter to deprive a person of access to the courts of law for it
is there that the rule of law is upheld, including against government and
other powerful interests. This is why relief, whether under O 26, r 18 or in
the inherent jurisdiction of the court, is rarely and sparingly provided.
2. To secure such relief, the party seeking it must show that it is clear, on the
face of the opponent’s documents, that the opponent lacks a reasonable
cause of action or is advancing a claim that is clearly frivolous or
vexatious.
3. An opinion of the court that a case appears weak and such that it is unlikely
to succeed is not, alone, sufficient to warrant summary termination. Even a
weak case is entitled to the time of a court. Experience teaches that the
concentration of attention, elaborated evidence and argument and extended
time for reflection will sometimes turn an apparently unpromising cause
into a successful judgment.
4. Summary relief of the kind provided for by O 26, r 18, for absence of a
reasonable cause of action, is not a substitute for proceeding by way of
demurrer. If there is a serious legal question to be determined, it should
ordinarily be determined at a trial for the proof of facts may sometimes
assist the judicial mind to understand and apply the law that is invoked and
to do so in circumstances more conducive to deciding a real case involving
actual litigants rather than one determined on imagined or assumed facts.
5. If, notwithstanding the defects of pleadings, it appears that a party may
have a reasonable cause of action which it has failed to put in proper form,
a court will ordinarily allow that party to reframe its pleading. A question
has arisen as to whether O 26, r 18 applies to part only of a pleading.
However, it is unnecessary in this case to consider that question because
the Commonwealth’s attack was upon the entirety of Mr Lindon’s
statement of claim.
6. The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it
is clear that proceedings within the concept of the pleading under scrutiny
are doomed to fail, the court should dismiss the action to protect the [2012] FamCAFC 191 Reasons Page 17
defendant from being further troubled, to save the plaintiff from further
costs and disappointment and to relieve the court of the burden of further
wasted time which could be devoted to the determination of claims which
have legal merit. (Footnotes omitted)
78. In Walton v Gardiner (1993) 177 CLR 378 (“Walton”) at 392-393 Mason CJ,
Deane & Dawson JJ said:
The inherent jurisdiction of a superior court to stay its proceedings on
grounds of abuse of process extends to all those categories of cases in
which the processes and procedures of the court, which exist to administer
justice with fairness and impartiality, may be converted into instruments of
injustice or unfairness. Thus, it has long been established that, regardless of
the propriety of the purpose of the person responsible for their institution
and maintenance, proceedings will constitute an abuse of process if they
can be clearly seen to be foredoomed to fail. Again, proceedings within the
jurisdiction of a court will be unjustifiably oppressive and vexatious of an
objecting defendant, and will constitute an abuse of process, if that court is,
in all the circumstances of the particular case, a clearly inappropriate forum
to entertain them. Yet again, proceedings before a court should be stayed as
an abuse of process if, notwithstanding that the circumstances do not give
rise to an estoppel, their continuance would be unjustifiably vexatious and
oppressive for the reason that it is sought to litigate anew a case which has
already been disposed of by earlier proceedings. The jurisdiction of a
superior court in such a case was correctly described by Lord Diplock in
Hunter v. Chief Constable of the West Midlands Police as “the inherent
power which any court of justice must possess to prevent misuse of its
procedure in a way which, although not inconsistent with the literal
application of its procedural rules, would nevertheless be manifestly unfair
to a party to litigation before it, or would otherwise bring the
administration of justice into disrepute among right-thinking people”.
(Footnotes omitted)
79. Albeit referring to permanent stays of proceedings, for present purposes, the
tests referred to in Walton are instructive. The relevant Rules of the Federal
Magistrates Court reflect the common law principles which emerge from the
authorities to which reference has been made.
80. Whether or not there is, or ever was, a “principle” in Rice and Asplund is not
relevant for present purposes. The questions are whether the learned
Federal Magistrate decided the summary dismissal application by reference to
the substance of the principles governing such applications, and, whether, prior
to doing so, her Honour adequately informed the appellant of the basis upon
which she would decide the application to summarily dismiss his application.
81. Although, as the authorities confirm, the circumstances in which an application
may be summarily dismissed are not finite, pivotal to the making of orders for
summary dismissal in a case such as this, is acceptance of the proposition that [2012] FamCAFC 191 Reasons Page 18
the proceedings are doomed to fail, or could not, on the applicant’s own
material, possibly succeed.
82. However the test is formulated, an applicant for summary dismissal bears a
heavy onus. Kirby J eloquently explained why that is so in our judicial system.
It could be suggested in the context of the present appeal, that absent it being
apparent that an unfair costs burden would likely result from an application
proceeding to determination on its merits, the Court should err on the side of
allowing such application to be thus determined, rather than summarily
dismissing it.
83. The determination of the essential issues raised in this appeal is not simple or
straightforward, as the cogent submissions of Counsel for both parties confirm.
Whilst determining the appeal according to law, the Court must avoid on the
one hand, a “pernickety” analysis of the judgment of the learned
Federal Magistrate whilst, on the other hand, must resist the temptation to
decline to disturb a clearly sensible and logical decision if appealable error is
demonstrated. Pivotal to the submissions of Counsel for the appellant is that
her Honour neither expressly, or impliedly concluded that the appellant’s claim
was doomed to fail or necessarily hopeless, but rather assumed facts which had
not been found, or then able to be found, namely that there had “not been a
significant and substantial change in circumstances since the orders were made
in 2010”. That contention cannot be readily rejected.
84. Necessarily, Counsel for the appellant submitted that, whilst the evidence
adduced by his client at the time the matter was determined before the learned
Federal Magistrate was “weak”, and that the appellant was by no means
assured of success, much less that success was probable, the learned
Federal Magistrate could not reasonably have concluded, without at least some
testing of the evidence of the appellant, that there had not been a significant
and substantial change in circumstances since the orders were made in 2010
which warranted reconsideration of those orders. It was thus submitted that
her Honour could not reasonably have concluded for that, or any other reason,
that the appellant’s claim was necessarily doomed to failure.
85. Correctly in this Court’s view, Counsel for the respondent submitted that the
appellant could not rely upon the deficiencies in his own material in support of
his resistance to the summary dismissal application. It was submitted that the
learned Federal Magistrate had, correctly, proceeded in reliance upon the
appellant’s own evidence, such as it was, in determining the summary dismissal
application.
86. On behalf of the respondent it was further submitted that, whilst the learned
Federal Magistrate had not used the terms emerging from the authorities in
relation to summary dismissal, it has not been established that what her Honour
said failed in substance to adequately and accurately inform the appellant of the [2012] FamCAFC 191 Reasons Page 19
test to be applied, or and that her Honour had failed to apply the relevant
criteria when determining the summary dismissal application.
87. Whatever its ultimate significance, on any view of the evidence, the parties’
child had not spent the time with the father subsequent to the February 2010
orders which the orders contemplated. In fact, as emerged uncontroversially
during the course of the hearing of the appeal, other than at Christmas in 2010
and in July 2011, the father had not spent any time with the child since the
orders were made.
88. As the evidence before the learned Federal Magistrate, to which her Honour
referred, revealed, the parties asserted different reasons for the absence of such
contact. There were, as the learned Federal Magistrate suggested, some
apparent anomalies in the appellant’s own version of those events. Those
anomalies were exacerbated by the terms of the orders which the appellant
sought.
89. With respect to the learned Federal Magistrate, and making all due allowance
for the confused, and confusing presentation of the appellant’s case before her,
this Court is not persuaded that the evidence before the learned
Federal Magistrate necessarily established that the appellant’s application for
variation of the existing parenting orders was necessarily doomed to fail, or
was hopeless, although, the prospects of success appeared extremely limited.
90. Albeit a matter of degree, with respect to the learned Federal Magistrate, and
accepting the difficult circumstances in which her Honour was obliged to deal
with the proceedings, the Court reluctantly concludes that the substantive
provisions of the test governing applications for summary dismissal, were not
adequately conveyed to the appellant during the course of the hearing, or
applied in the determination of the summary dismissal application.
91. With respect to the learned Federal Magistrate, if the evidence of the appellant
that he could not afford to spend time with the parties’ child in accordance with
the February 2010 orders was accepted, the best interests of the child would
justify revisiting the parenting orders. So doing may not result in the orders
being changed in any material respect, but that is not the issue.
92. Although some anomalies in the appellant’s own evidence were referred to, this
Court does not discern that her Honour found, or could permissibly have found,
that the appellant’s essential allegations of fact in relation to his financial
ability to spend time with the parties’ child pursuant to the existing orders,
precluded him from doing so. Had the learned Federal Magistrate been able to,
and found that the appellant’s financial circumstances did not preclude him
from spending time with the parties’ child pursuant to the existing orders,
different conclusions would have been available.[2012] FamCAFC 191 Reasons Page 20
93. As Counsel for both parties agreed, the summary dismissal of the appellant’s
application to vary the existing parenting orders did not, as a matter of
jurisdiction or discretion, preclude the appellant from seeking the same relief
via an application pursuant to s 70NBA of the Act. Whilst, no doubt reassuring
to the appellant if his appeal is dismissed, the availability of an alternate avenue
of possible relief does not disentitle the appellant to succeed with the present
challenges if they are made out.
94. Whilst the Court reluctantly concludes that the learned Federal Magistrate did
not adequately inform the appellant of the test applicable to the respondent’s
summary dismissal application and/or apply that test in determining the
application, it is necessary to consider whether, to the extent that these are
natural justice issues, which the Court does not consider them to necessarily be,
as Counsel for the respondent submitted in reliance upon Stead v State
Government Insurance Commission (1986) 161 CLR 141 (“Stead”), the appeal
should nevertheless be dismissed as the proceedings could have had no other
outcome.
95. Counsel for the respondent fairly conceded that the onus of persuading the
Court that the proceedings could have had no other outcome in the court below,
which rested upon the respondent could not readily be discharged.
Unsurprisingly, Counsel for the respondent’s submissions in relation to the
primary issue raised by these challenges, were also relied upon in the context of
her Stead contentions. Perhaps, also unsurprisingly, given that this Court has
concluded that the appellant’s application to vary the parenting orders was not
necessarily doomed to fail or hopeless, the Court is unable to accept that the
proceedings in the court below could have had no other outcome.
96. Whether, having been informed of the test in terms of doomed to fail or
hopeless, the appellant would have raised the arguments his learned Counsel
asserted before this Court is not the point, the test being whether there could, as
opposed to would have been a different outcome.
97. The Court is reluctantly persuaded that these challenges have substance. As
these reasons hopefully reveal, the issue is finely balanced. It is arguable that
the Court’s conclusion involves an unfortunate degree of “pernickety” analysis,
and required of the learned Federal Magistrate a standard of perfection which
was unreasonable and unrealistic in the circumstances in which her Honour
was required to determine the summary dismissal application. It could further
be charged that the appellant was the author of his misfortune in the court
below. Such criticisms have force. The Court has perhaps erred on the side of
too generously allowing a litigant with little apparent prospect of success his
day in court, rather than risking denying him the opportunity to turn his
“unpromising cause into a successful judgment” (see Lindon (supra) at 256).[2012] FamCAFC 191 Reasons Page 21
98. It remains to consider the submissions of Counsel for the respondent in reliance
upon the decision of the Full Court in DL & W [2012] FamCAFC 5 (“DL &
W”). In that case, a Federal Magistrate had found “significant changes” in the
circumstances of the parties subsequent to the making of the orders which were
sought to be revisited. The Federal Magistrate had, however, dismissed the
application to vary the orders in reliance upon an “assessment of the potential
costs and benefits to the child from a new trial about her parenting
arrangements”.
99. The proceedings in DL & W involved a child who was born in January 1999,
the child being aged 12 at the time of the appeal to the Full Court. The
application to vary the existing parenting orders in that case met with an
application for summary dismissal. Prior to the application being determined, a
Family Report was prepared, sensibly, to ascertain the views of the child the
subject of the proceedings in relation to a number of relevant issues. The report
subsequently issued, and was uncontroversially received in evidence before the
learned Federal Magistrate.
100. As the Reasons for Judgment of the Full Court make clear, the case turned
significantly on the Full Court’s rejection of the submissions on behalf of the
appellant that the learned Federal Magistrate had “insufficient evidence to
allow finding[s] to be made” that the circumstances did not justify a further
exploration of the parenting proceedings.
101. In the course of its reasons for dismissing the appeal, the Full Court recorded:
105. Her Honour adopted a common sense approach to a case in which the only
change in the child’s life proposed by the father would be for her to spend
two, or possibly just one, more nights a fortnight with him during school
terms. The importance (or lack thereof) to the child of this proposed
change, in circumstances where she already enjoyed a very good
relationship with her father, stood to be considered in light of the fact that
“in a few short years” she would be old enough to “vote with her feet”.
106. Any potential benefit to the child associated with spending additional time
with one loved parent (and we might note a correspondingly shorter time
with another loved parent and siblings) was, in her Honour’s view,
outweighed by the prejudice associated with yet more litigation. As we
have found no appellable [sic] error in this approach, the appeal will be
dismissed.
102. The Court does not perceive that the decision in DL & W creates an
impediment to the present appeal being allowed. The dismissal of the appeal in
that case was largely referable to the failure of the appellant to establish that the
critical findings of fact of the learned Federal Magistrate had not been
reasonably open to her. Properly understood, the changes to the parenting [2012] FamCAFC 191 Reasons Page 22
orders sought by the appellant in this case were more significant than those
sought in DL & W.
103. For present purposes, significantly in DL & W, the decision to summarily
dismiss the proceedings was made after a Family Report had been obtained in
relation to what were, clearly, the issues of potential relevance in any final
hearing. Had there been a Family Report in this case, given that the child the
subject of the present proceedings is approaching 15 years of age, such report
would almost certainly have been decisive of the proceedings, at least in a
practical sense.
104. It ought not be thought that the Court’s inability to accept the submission of
Counsel for the respondent in relation to the impact of DL & W on this appeal
ignores either the provisions of s 69ZN or the observations of the Full Court in
DL & W. In reality, unless the child, the subject of these proceedings, was at
least receptive to the changes in the current parenting orders sought by the
appellant, to allow the proceedings to continue, would almost certainly be an
abuse of the processes of the Court, but the Court cannot speculate about that.
The Court would not expect, given her age, that ascertaining the child’s
response to the appellant’s proposal would be difficult, formal or expensive.
Once the child’s views emerged, if “yet more litigation” resulted, it would
potentially be at the cost of the party maintaining it in the face of the child’s
opposition.
105. As the learned Federal Magistrate observed, there was no evidence that the
child, the subject of the present proceedings, wished to have the parenting
orders changed, either in the way sought by the appellant or otherwise. As
Counsel for the appellant submitted, that absence of evidence could not operate
in favour of either party given that there was a similar absence of evidence that
the child wished the current orders to continue.
106. Notwithstanding the cogency of the submissions of Counsel for the respondent
in reliance upon Stead, and the alternate, but complimentary basis in reliance
upon DL & W, the Court remains reluctantly persuaded that this challenge is
entitled to succeed.
THE OTHER GROUNDS OF APPEAL
107. Given the Court’s conclusion with respect to grounds 1 and 2, it is strictly
unnecessary to consider the remaining challenges to the learned
Federal Magistrate’s exercise of discretion. In deference to the submissions of
Counsel for the parties, however, consideration will be given to those
complaints. [2012] FamCAFC 191 Reasons Page 23
Ground 3
108. The challenge to the adequacy of the learned Federal Magistrate’s reason for
summary dismissal (ground 3) would probably not succeed, were its fate
necessary to be determined.
109. Why the learned Federal Magistrate decided as she did, is not in doubt, having
regard to her Honour’s reasons for judgment.
110. As this Court’s reasons for its conclusion with respect to grounds 1 and 2
reveal, with respect to her, her Honour misdirected herself as to the test to be
applied, and, to the extent that such misdirection may, as Counsel for the
respondent submitted, have been immaterial, the inability to find the absence of
a “significant and substantial change in circumstances since the orders were
made in 2010” (par 10 of reasons for judgment), would deny the complaint that
her Honour did not adequately reveal her reasoning process any entitlement to
success.
Ground 4
111. Ground 4 of the Amended Notice of Appeal, which provided:
4. That the learned Federal Magistrate erred in finding that there was no
significant change of circumstance justifying a change to the parenting
orders made on 2 February 2010.
The crux of this ground has largely been dealt with earlier in the course of these
reasons.
112. The submissions on behalf of the respondent in relation to ground 4 succinctly
asserted:
33. In relation to paragraph 34a, the Appellant said that the significant change
was that he had not seen his daughter in 12 months, significantly, “because
the mother has not delivered [O].” [transcript page 4, lines 33-35]
34. The Appellant’s clear assertion was that the Respondent has not complied
with the Court Orders. Her Honour correctly identified during the hearing
that this allegation would be appropriately dealt with by a Contravention
Application.
35. In relation to paragraph 34b, the Appellant relied upon the change in
assessment for Child Support. The Appellant’s child support assessments
were the subject of review by the SSAT and ultimately appeal to the
Federal Magistrate’s Court on a question of law.
36. The Appellant’s argument was not logical. He argued that he was unable to
see spend time with his daughter in accordance with the Orders because of
his child support obligations. However, the Respondent was responsible for
the costs of the child’s travel to Australia twice per annum and the [2012] FamCAFC 191 Reasons Page 24
Appellant was only responsible for his costs of travel to the United
Kingdom, once per annum. He was under no obligation to exercise the
latter contact if he could not afford to do so. The Appellant proposed that
he be responsible for the costs of travel to facilitate his time spent with [O].
The learned Federal Magistrate addressed this contradiction in paragraph 8
of her Judgment.
37. That Affidavit of the Appellant filed in this Appeal was drafted by his legal
representatives. The Affidavit sets out the evidence that the Appellant
wished to bring before the Court in support of his establishment of the
Court’s jurisdiction on 28 May 2012. The Affidavit does not assist with a
finding of a change in circumstances to warrant a re-opening of the
parenting issues. From this the Court can infer that there was no practical
disadvantage of any alleged irregularity in the conduct of the proceedings.
38. Therefore, even if this Honourable Court is satisfied that any or all of
grounds 1-3 are made out, Her Honour’s decision was correct and should
not be overturned.
113. The appellant’s evidence before the learned Federal Magistrate was, at best
unclear, at worst confusing, as the learned Federal Magistrate’s reasons for
judgment, and Counsel for the respondent’s submissions suggest. There had,
however, been changes, for whatever reason, which meant that the child had in
fact spent little of the time provided for by the February 2010 orders with the
appellant. Moreover, whilst, necessarily, as Counsel for the respondent
submitted, the Child Support issues fell to be determined via the path suggested
by Counsel in paragraph 35 of her written outline, as Counsel for the appellant
clearly explained, and does not seem controversial, nothing which could occur
within that litigation could result in changes to the parenting orders and, as the
Court understands the position, nothing would change in those proceedings
unless the parenting orders were materially altered.
114. Whilst the appellant did not present his case, at least in a pleaded, or an
evidentiary context, in a way that was “logical” as Counsel for the respondent
correctly submitted, this Court is not persuaded that his assertion that events
subsequent to the February 2010 orders justified revisiting those orders “on the
merits”, was doomed to fail.
115. The Court accordingly, and for reasons earlier referred to, finds substance in
ground 4.
Ground 5
116. Ground 5 asserted:
5. That the learned Federal Magistrate erred in finding that there was little
difference in the parenting orders sought by the father compared with the
parenting orders made on 2 February 2010. [2012] FamCAFC 191 Reasons Page 25
117. The terms of the orders sought by the appellant, and the affidavit evidence
relied upon by him in support of his application filed 29 March 2012, were well
able to be described in the terms complained of in this ground.
118. The discussion before the learned Federal Magistrate, however, revealed
clearly, the conundrum which presented itself, whatever finding might
ultimately be made with respect to the merits of the matter.
119. Given the Court’s conclusion with respect to other challenges, it is unnecessary
and unhelpful to further consider this ground.
120. Similar observations apply to ground 6 of the Amended Notice of Appeal.
CONCLUSION
121. Regrettably, and notwithstanding that the appellant’s own application, and
evidence in support of it at trial, contributed materially to what this Court has
found to be the learned Federal Magistrate’s error, the appeal will be allowed,
and the application for summary dismissal remitted for re-determination.
122. The respondent is clearly entitled to costs certificates with respect to the
appeal, and the re-hearing of the summary dismissal application pursuant to the
relevant provisions of the Federal Proceedings (Costs) Act 1981 (Cth).
123. The position of the appellant in relations to costs certificates is less clear-cut. In
the court below the appellant contributed materially to his lack of success, as
these reasons have earlier recorded. However, the Court is not persuaded that
the appellant led the learned Federal Magistrate into error. The appeal has been
allowed on the basis of a misdirection by the Court, for which the appellant is
not ultimately responsible. In all the circumstances, the Court concludes that
the appellant too should receive costs certificates for the appeal and the
re-hearing.
I certify that the preceding one hundred and twenty-three (123) paragraphs are a
true copy of the reasons for judgment of the Honourable Justice Coleman
delivered on 15 November 2012.
Associate:
Date: 15.11.2012
