Abbott v Deputy Child Support Registrar

[1997] HCATrans 213

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  Nos M65 and M66 of 1995

B e t w e e n -

JOHN MURRAY ABBOTT

Applicant

and

DEPUTY CHILD SUPPORT REGISTRAR

Respondent

Application for special leave to appeal

BRENNAN CJ
DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 AUGUST 1997, AT 9.57 AM

Copyright in the High Court of Australia

MR J.M. ABBOTT:   I appear in person.

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:Your Honour, I appear with MR C.M. CALEO, for the respondent in each matter.  (instructed by the Australian Government Solicitor)   Your Honour, I think there is some confusion in the numbering but, as we understand it, 65 is the procedural appeal and 66 is the substantive one.

BRENNAN CJ:   Thank you, Mr Solicitor.  Yes, Mr Abbott.

MR ABBOTT:   Your Honours, I ask for special leave to appeal from an order of a Magistrate’s Court that has been refused me by the Family Court.  The matter has come to the High Court because I believe - and I have presented my case in written submissions to the Court, stating that in fact there was what I deem to be a travesty of justice that in that the Child Support Registrar assessed an amount to the tune of $37,000 in one instance in the absence of any records and as a matter of fact there were no taxation records for the Child Support Registrar to peruse.

Indeed, without any further records from me being given to the Child Support Registrar, the Child Support Registrar amended the assessed amount to $1,800, and as I say, without any assistance from me whatsoever, any records available whatsoever.  I do not know where they got all these assessments from, sir, but in any event it appears that there were three cases before the Magistrate’s Court where I argued against the debt.  I always denied the debt and, in fact, I denied the debt not only that there was a debt but, in fact, that it should be a debt to the Commonwealth.  I have always maintained that if there was a debt it was a civil debt.

The debt went on to $1,800, as I have said before, without any records being given from me or any records available from taxation because there were no taxation records, and when I finally submitted my taxation records, once again, there was a new assessment made and the assessment was nil.  As a consequence, all of the funds that I was forced to pay by the Family Court, being $1,800, of the alleged debt, $2,000 costs and even $12 parking fee for the day were all refunded by the Child Support Registrar.  So, clearly, they have withdrawn and they have admitted there was a difficulty and there was a problem.  So, I have come to the High Court to say I want leave to appeal against the Magistrate’s decision in 1994 which has been denied me by the Family Court throughout these proceedings.

I also put in question before the High Court section 58(1) of the Child - - -

BRENNAN CJ:   Before you proceed, Mr Abbott, do I understand you to be saying that you paid some money but it has been refunded to you.

MR ABBOTT:   Yes, sir, it has, entirely.

BRENNAN CJ:   What is now outstanding is between you and the Deputy Child Support Agency?

MR ABBOTT:   There are no amounts outstanding, sir.

BRENNAN CJ:   Then why should this Court grant special leave to consider some question where there is no relief being sought of a substantive kind?

MR ABBOTT:   Because I have a conviction against me in both the Magistrate’s Court and the Family Court that I have reneged on a debt and that in fact there was a debt proven against me.  I need to have those records corrected.  I need to have not only the records corrected but that I question the validity of the legislation.  I also challenge constitutionally the entirety of the Child Support (Assessment) Act and, indeed, the Collection Act with it.

TOOHEY J:   As far as amounts are concerned, Mr Abbott, was there not in the end an amount which you did pay?

MR ABBOTT:   I did pay through the audit of the Family Court made by Justice Kay, sir, and in fact under duress I was forced to pay and, indeed, his Honour took my car keys off me and forced me, in a way, to walk home until I paid the debt.  It was under those conditions that I paid the debt, reluctantly and, indeed, even after having paid the debt, once I had then submitted, as I say, my taxation records, which is another point of contention if I may just put that in as an obiter that, indeed, the Child Support Registrar and the staff under him indeed do go into my taxation records and peruse them openly.  This, of course, is all but admitted in writing.  Having seen that there was no assessed amount payable, then took it upon themselves to not only refund the $1,800 originally claimed, they also refunded the $2,000 ordered by the court as costs by Justice Kay and, further, also refunded my $12 parking fee for the day which I found extraordinary.

So, indeed, they have admitted there was no debt.  That, in fact, the debt that they went through the whole procedure of the Magistrate’s Court - as I say, three phases there - four cases in the Family Court, to prove an alleged debt and then admitted there was no debt.

BRENNAN CJ:   Do I understand that the assessments that were made against you were default assessment?

MR ABBOTT:   Yes, default assessments.

BRENNAN CJ:   Yes, so that what happened was default assessments were made against you; you were ordered to pay on those default assessments; then when you finally lodged your tax returns they were able to assess it not as a default assessment and refunded you the money.

MR ABBOTT:   That is correct, sir.

BRENNAN CJ:   Why should the Court grant special leave in those circumstances?

MR ABBOTT:   Because the default assessment, sir, I submit, is nothing more than a penalty for not submitting my taxation records. It cannot be looked at any other way. Indeed, the Child Support Registrar, under section 58, has the same powers as the Taxation Commissioner in that if I do not submit my taxation records then, “We are going to have a default assessment, in short, a penalty for not submitting your taxation records.” So, these amounts are taken out as an assessed amount not with the records but in the absence of records but not submitting those taxation records which, I submit, that under section 55 of the Constitution is totally illegal.

Therefore, in my view, the matter should be perused by the Court because not only is the gravity of extreme situations, as far as I am concerned, because it affects so many hundreds of thousands of people, but if I may just add, there was in the Kevin Gill.Case of which the respondent has referred to where it states, at page 12:

His Honour:  My understanding is that the Taxation Department has very extensive powers to bank records and the like in relation to taxpayers.  Is there any restriction of a legislative character whereby the broad powers of the Commissioner of Taxation are not available to the Deputy Child Support Registrar? 

Mrs......-

for the Child Support Registrar:

No, your Honour, we have access to all taxation records purely as we see fit for the additional support of child support cases.”

Now, I have submitted to the Court evidence that many, many instances child support staff have gone into my taxation records, in my view, illegally.  I had all these arguments before the court and this is why I believe that I should have special leave to appeal against what I deem to be a travesty of justice that has gone on for many years through both the Magistrate’s Court and the Family Court.  Thank you, your Honours.

BRENNAN CJ:   Thank you, Mr Abbott.

BRENNAN CJ:   We need not trouble you, Mr Solicitor.

In relation to the procedural matter, there is no question of general principle which warrants the grant of special leave. 

In the other matter, the litigation seems to have turned substantially on the appropriate assessment of liability of the applicant to make payments under the child support scheme.  That litigation has resulted in virtually a nil assessment of Mr Abbott to make those payments.  In those circumstances, the case is quite unsuitable to raise by a grant of special leave the issues which he seeks to raise in his written submissions.

In those circumstances, the Court refuses a grant of special leave.

MR GRIFFITH:   I ask for costs, your Honour.

BRENNAN CJ:   What do you say about that, Mr Abbott?

MR ABBOTT:   There is not much more that I can add, sir.  It is all before you, thank you.

TOOHEY J:   Mr Solicitor, appreciating that this is an application to this Court and not in the Family Court but within the structure of the Family Court do these proceedings follow the usual pattern in regard to costs?

MR GRIFFITH:   In the Family Court they would, I suppose, yes, your Honour.

BRENNAN CJ:   There is no basis on which the application for costs can be refused.  Accordingly, costs will be granted.

AT 10.09 AM THE MATTER WAS CONCLUDED