ACORA & SADLOWS - [2020] FCCA 1580

FEDERAL CIRCUIT COURT OF AUSTRALIA

ACORA & SADLOWS

[2020] FCCA 1580

Catchwords:
CHILD SUPPORT – Stay application – where a review by the Tribunal was requested by the respondent and departure order granted – where two children are aged 10 and 14 – where orders have been made multiple times from 2007 to 2020 – where earlier interim application for stay was refused – where contravention applications were made and withdrawn – where sole parental responsibility now sought by applicant – where such request represents a reversal of final consent orders – where the applicant contested the Tribunal’s decision to proceed in his absence – where the applicant sought to appeal the Tribunal’s decision but later discontinued the appeal – where the level of child support was increased – where the schooling of one child was a matter of disagreement – where the status of financial decisions for child’s education within the meaning of ‘sole parental responsibility’ was questioned – where the Family Law Act defines parental responsibility as including all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children – where it is necessary to give the provisions of the Assessment Act, the Collection Act and the Family Law Act a harmonious operation – where there is every reason to treat the term duties as including the duty created by s.3(1) of the Assessment Act which imposes on parents a primary duty to maintain their child – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) Pt IVA, ss.43B, 44,

44A, 44AA

Child Support (Assessment) Act 1989 (Cth), ss.3-4, 116, Pt 7, Div 5

Child Support (Registration and Collection) Act 1988 (Cth), ss.3(1),98B,111C,

Family Law Act 1975 (Cth), Pt.VII, ss.60–70Q

Cases cited:

AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173

Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288 at 300

Dobbins & Devlin (SSAT Appeal) [2014] FCCA 1274

Harris v Caladine (1991) 172 CLR 84,104

Rice & Asplund (1979) FLC 90-725

Applicant:

MR ACORA

Respondent:

MS SADLOWS

File Number:

DGC 2657 of 2007

Judgment of:

Judge A Kelly

Hearing date:

26 May 2020

Date of Last Submission:

26 May 2020

Delivered at:

Melbourne

Delivered on:

16 June 2020

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr. D. Ballan

Solicitors for the Respondent:	Bayside Solicitors
Amicus curiae:	Ms M. Underhill
Solicitors for the Registrar, Child Support:	Mills Oakley

ORDERS

The application in a case filed on 17 January 2020 be dismissed.
By 4:00pm on Tuesday, 30 June 2020, the applicant file and serve any further amended initiating application for a departure order pursuant to s 116 of the Child Support (Assessment)Act 1989 (Cth).
By 4:00pm on Tuesday, 14 July 2020, the respondent file and serve any further amended response to that further amended initiating application.
Liberty to apply.
Costs reserved.

IT IS NOTED that publication of this judgment under the pseudonym Acora & Sadlows is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2657 of 2007

MR ACORA

Applicant

And

MS SADLOWS

Respondent

REASONS FOR JUDGMENT

Introduction

These reasons for judgment explain orders made respecting claims for a stay pursuant to s.111C of the Child Support (Registration and Collection)Act 1988 (Cth) (CollectionAct) and ancillary orders.
In summary, I have determined that the application should be dismissed. The respondent was initially successful in obtaining a departure order respecting the applicant’s liability for child support under the Child Support (Assessment)Act 1989 (Cth) (Assessment Act). However, in turn, the applicant succeeded, partially, upon a review of that initial decision. Following a hearing by the Administrative Appeals Tribunal (tribunal) of an application made by the respondent for an independent review, on 10 September 2019, a departure order was made, operative with effect from 1 January 2018, which determined that the applicant’s annual rates of child support be varied in each of 2018, 2019 and 2020. As the applicant’s appeal from that decision has been discontinued, there is no ‘proceeding’ in respect of which a stay could now be granted.

Overview & procedural history

The background to the application is essentially common ground. The applicant father who is now aged fifty-three and the respondent mother who is aged thirty-six are parents to two children, a son aged fourteen and a daughter aged ten. Following the institution of proceedings in this court in June 2007, final parenting orders were made by consent in February 2016.
Orders have been made in this court on 6 August 2007, 7 December 2007, 13 October 2010, 15 December 2010, 28 January 2011, 18 November 2014, 20 March 2015, 17 November 2015, 15 February 2016,

20 May 2019, 22 August 2019, 26 August 2019, 28 October 2019 and 16 March 2020. It is immediately apparent that significant resources have been dedicated to the determination of the parties’ disputes. At present, there is a further hearing of the matter listed for 1 March 2021.
By the final parenting orders made on 15 February 2016 (final consent orders), the parties agreed that there would be equal shared parental responsibility and for the two children to live with the respondent mother and spend time with their father in the manner prescribed by those orders. Notations to the parties’ final consent orders provided it was their intention at the end of each academic year or at any time of significant decision-making, to attend mediation in order to resolve issues and/or plan for the coming academic school year and that, prior to commencing further proceedings in this court, the parties intended to attempt family mediation. They appear not to have done so.
By an initiating application filed on 12 February 2019, the father sought orders pursuant to s 111C of the Collection Act. By her response filed on 15 March 2019, the respondent sought the dismissal of the application. On 9 July and 20 August 2019 respectively, each of the parties amended their initiating process in the manner described below.
On 19 March 2019, the interim application for a stay was refused. The application was refused including in circumstances where an enquiry was made of the applicant whether he would provide but declined to offer security for payments of child assessment as a condition of that stay.
On 21 March 2019, 8 July 2019 and again on 3 February 2020, the applicant has filed a contravention application. In an attempt to facilitate resolution of the earlier two contravention applications, an order was made by a Registrar of the court for the parties to attend a child inclusive conference. This conference took place on 10 July 2019 at which the views of the children were obtained. A series of future recommendations were made including that the children spend one night on each alternative weekend with their father; for the mother and daughter to attend counselling; for the father to consider the possibility of watching his son play sport in the near future; and for the parents to consider attending mediation in relation to any changes to parenting arrangements.
As a consequence of such mediation, the applicant’s first and second contravention applications were withdrawn. The applicant’s third, and current, contravention application was the subject of directions by a Registrar of the court on 16 March 2020. On that date an order was made for that application to be heard before another judge of this court.
By his amended initiating application, the applicant father now seeks orders for sole parental responsibility and that the children live with him and communicate with their mother on alternative weekends, on their birthdays, for half of school holidays and at such other times as may be agreed in writing. It appears the applicant considers, despite having consented to parenting orders in 2016, that an order for sole parental responsibility in his favour may be an alternative route to resolving his grievances in relation to child support. The applicant’s amended process said nothing in relation to interim relief and it remained unclear what relief, if any, was sought in relation to a stay under the Collections Act of the applicant’s liability for child support. Contrastingly, the applicant’s summary of argument contained in his Outline of Case, made no submissions to the effect that there should be any change to the parties’ final consent orders. Instead, that summary was focused upon the interim relief claimed, being for a stay of his child support obligations.
By her amended response, the mother addressed, and opposed, the applicant’s proposals for an effective reversal of the parenting arrangements as contained in the parties’ final consent orders.
On 22 August 2019, an order was made setting the application down for final hearing on 1 March 2021. Of some relevance to the present application is that a notation was made recording the applicant’s contention that by operation of the parties’ final consent orders, and as a corollary of the respondent’s agreed sole parental responsibility in relation to schooling matters, that the financial consequences of her decisions whether to enrol the children in state or private schooling were also her sole responsibility. Notation A to that Order reads:
The applicant contends by reason of the parties’ consent orders that the respondent has sole parental responsibility, the decisions of whether to enrol the children in state or private schooling and the costs thereof are also the responsibility of the respondent (a matter which will required determination at trial).
On 17 January 2020, the applicant filed a further application in a case by which he sought certain interim relief respecting the tribunal’s decision. It is this application which is before the court for determination.

Tribunal’s decision

As the tribunal noted, the Assessment Act provides for an administrative assessment of child support payable and uses a formula which contains variables such as a parent’s adjusted taxable income and their percentages of time spent caring for the children. It also provides for a departure from an administrative assessment in certain circumstances.
The tribunal found that the care of the children was registered as being as to 281 nights per annum with the respondent and as to 84 nights with the applicant. It noted that in August 2018 the applicant applied for a departure from the assessment of child support payable at that time and that on 3 November 2018, a ground for departure was established with the result that the annual rate of child support was increased.
The tribunal further found that, following an objection by the applicant, on 27 October 2018, his objection was partly allowed, and on 16 January 2019, an application was made by the respondent for an independent review, which review was the subject of a hearing conducted on 4 September 2019, and in which the applicant attended for a period by telephone but decided to participate no further by reason of his work commitments. The tribunal then decided to proceed with the hearing in his absence and did so. As appears below, the gravamen of the applicant’s complaint in relation to the tribunal is that it proceeded to conclude the hearing and to determine the respondent’s application for an independent review in circumstances where, as he maintained, it should have decided not to do so before a final hearing and determination of the proceeding pending in this court.
In particular, it addressed by way of preliminary consideration at [10]-[15], the applicant’s jurisdictional objection to the tribunal proceeding at all. He submitted that the tribunal did not have jurisdiction to hear the respondent’s application by reason of an application which he said he had made to this court for clarification of the meaning of the parties’ final consent orders respecting the question of financial liability for the children’s private school fees. The applicant maintained that this issue should be clarified at the final hearing on 1 March 2021 and for that reason the tribunal should not deal with the issue beforehand. By way of response to this submission, the respondent contended that it had never been contemplated by the parties’ final consent orders that the applicant would be absolved of financial responsibility, including contributing to the costs of the children’s education.
The tribunal recognised, correctly with respect, that the parties’ final consent orders did not clearly set out any individual responsibility in relation to the costs of education and that while the notation to the court’s order made on 22 August 2019 recorded that the respondent’s contention as to educational costs was a matter which would require determination at trial, that notation did not form part of the order made on that date (which I infer meant that the “notations” set out in the order did not create substantive obligations binding either party). For those reasons the tribunal determined it should proceed “on the basis that the education costs of the children is open for it to consider according to the application of the applicable legislation . . .” [13]. The tribunal found that the respondent had made a valid application for a departure order pursuant to s 98B of the Collections Act and, as the application for a stay had been refused, it determined to proceed, having regard also to its statutory obligation to do so and the applicant’s failure to comply with directions to supply financial information and “his stated intention prior to the hearing not to participate in the hearing or disclose any financial information to the Tribunal.” [14]-[15]. It also noted that the applicant had failed to comply with directions to provide information to the tribunal and found that “Mr Acora informed the tribunal that he will not disclose any of his personal financial information as requested in the Tribunal’s Directions unless he can be assured that Ms Sadlows will not have access to that evidence. The tribunal explained that the requirements of procedural fairness necessitate that all evidence to be considered by the Tribunal must be exchanged between the parties to the hearing. Mr Acora rested upon his statement in this regard”: [17]. By contrast, the respondent submitted that the applicant continued not to disclose his true financial position, including to the tribunal: [20].
The tribunal noted that it was not open to a parent to change his or her expectations with respect to a child’s education due to financial reasons, citing Dobbins & Devlin (SSAT Appeal).[1] It found that the applicant had agreed to the children attending the school in question and that, on his own evidence, the applicant continued to be employed at a similar rate of remuneration: [26]. It was not persuaded that the applicant’s overall circumstances had changed in any demonstrable way since his agreement to the children being educated in the manner in which they are presently being educated. It rejected the applicant’s submission that his expectations had changed and found that the children were currently being educated in the manner intended by their parents.
[1] [2014] FCCA 1274 (Reithmuller J).
After paying regard to the annual income of each of the parties, the tribunal was satisfied that a ground for departure under s 117(2)(b)(ii) existed. In the consideration whether it would be just and equitable for a departure order to be made, the tribunal noted the applicant had failed to supply either: his last three payslips; his 2018 tax return; or, a fully completed statement of financial circumstances. It detailed, having regard to the principal objects of the applicable legislation, to make a departure order, thereby increasing the annual rate of child support payable by the applicant in each calendar year 2018, 2019 and 2020.
On 2 December 2019, the applicant was notified of the changes to his child support payments following the tribunal’s decision, including in relation to the recovery of arrears.
Although the applicant sought to appeal the tribunal’s decision, as set out below, he has discontinued that appeal.

Evidence

Each of the parties filed lengthy affidavits which I have considered.
The applicant deposed that the parties had entered into brief relationships in 2005 and again in 2009, in each case resulting in the respondent becoming pregnant with their respective children.
By his affidavit, the applicant sought that the court grant him a stay of the child support as assessed. In his affidavit, the applicant set out s 111C(1)(3)-(4) of the Collections Act. He also set out some of the procedural history as described above. Other parts of the applicant’s affidavit took the form of submissions which I address below.
The applicant deposes that in August 2018 the respondent made application for a change of assessment and sought additional funding for private school fees. He states that the respondent “has been and is on welfare for the past 12 years.”
As noted, on 19 March 2019, an application for a stay was refused.
Thereafter, as also stated, on 10 September 2019, the tribunal made a decision on review to grant the respondent a departure order, by which it was determined that the applicant’s annual rates of child support be varied in each of the calendar years 2018, 2019 and 2020.
On 11 September 2019, the tribunal advised the mother and father of its decision which in effect increased the applicant’s child support payments with the result that “Child Support is now garnishing $1,500 per month” by direct payroll deductions from the applicant’s monthly wage. Before me, the applicant maintained that he had “without fail” paid his child support as assessed before the tribunal’s decision but submitted that his liability for school fees was the subject of this dispute.
On 8 December 2019, the Registrar of Child Support commenced garnishing the applicant’s wages.
On 17 January 2020, the applicant filed a notice of appeal from that decision. The notice was filed in this court and was supported by an affidavit in which the applicant deposed that in the course of a telephone hearing with the tribunal he had emphasised that it should postpone its hearing until the determination in this court of his application respecting his challenge to the child support assessment. As set out in his supporting affidavit, the applicant sought to contend that the tribunal hearing had not been fair or just in that it had proceeded to determine his application for review despite his objection.
On 10 March 2020, the applicant appeared before another judge of this court at a directions hearing respecting his ‘appeal’ from the decision of the tribunal granting the departure order. On that date, the ‘appeal’ was set down for hearing on 5 June 2020. By an amended notice of appeal filed on 19 March 2020, the applicant sought an extension of time within which to appeal and to quash the tribunal’s decision. He also sought an apology and that the Registrar cease-and-desist from taking any further action until after the final hearing listed for 1 March 2021.
On 11 May 2020, the applicant filed a notice of discontinuance of the proceeding in which he sought to ‘appeal’ the tribunal’s decision. Before me, the applicant submitted that he had decided to withdraw his appeal having regard to his exposure to the legal costs of pursuing the matter further and that he was “not prepared to roll the dice”. Viewed from one perspective, the applicant’s decision to discontinue this appeal may be seen as having some similarities to his decision to decline to offer security as a condition of the stay which he sought on 19 March 2019.
The applicant also described his son’s school attendance rates in each of the months January – November 2019 and deposed that he could not afford to fund the children’s private school fees stating “It is completely unreasonable to expect [my son] to pass year 9 given his current circumstances, attitude and behaviour. It is nonsensical and illogical to expect a different result from [him] if he is kept in the same environment.” The applicant exhibited to his affidavit a copy of his son’s school report which noted that in semester two of 2019 he had been absent from school on thirty-four days and late for school on twenty-two days. While the applicant’s affidavit asserted in general terms that there was, in effect, no point to giving his son a private school education, I have considered that report. It may be accepted that there were several areas in which the child’s performance was stated to “need improvement”; however, in many other areas the applicant’s son was considered to have demonstrated either acceptable or very good abilities including in relation to communication, teamwork, problem-solving, initiative and enterprise, self-management and organisation, learning, technology and equipment. Those results stand in contrast with the child’s performance as set out in the school’s semester one report for 2019. Objectively, they demonstrate that the applicant’s son’s performance is improving.

Another feature of the applicant’s evidence is that it is completely silent in relation to his daughter’s educational performance.
The respondent’s affidavit addressed a number of matters suggesting, in terms, that the applicant is not child focused. Contrastingly, text messages which were exhibited to the respondent’s affidavit indicates the party’s daughter suffers anxiety for which she seeks treatment and that the applicant resents the respondent for having successfully applied for and obtained a departure order operative from 1 January 2018.

Consideration

Each of the parties, together with the Child Support Registrar (Registrar) filed written submissions which were supplemented by oral submissions that I have considered. The court records its gratitude to the Registrar for the assistance which it has provided in the matter.
It is convenient to pay regard to the objects of the applicable legislation.
The principal object of the Assessments Act is to ensure that children receive a proper level of financial support from their parents, who are subject to a primary duty to maintain their children: ss 3-4.
The principal objects of the Collections Act are to ensure that children receive from their parents the financial support that those parents are able to provide, that periodic amounts payable by parents are paid on a regular and timely basis: s 3(1).
The Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act), confers certain rights of appeal and references on questions of law to the Federal Court of Australia: see Pt IVA, ss 43B-46. Relevantly, the scheme of Pt IVA confers a right of appeal on a question of law from any decision of the tribunal: AAT Act, s 44(1). In addition, in an appeal pending before the Federal Court of Australia, that court may, by order, transfer the appeal to this court: AAT Act, s 44AA(1). In common with the cognate provisions respecting appeals found in other federal and state legislation, an appeal from a decision of the tribunal does not affect the operation of its decision. Further, the power to stay or otherwise affect the operation of a tribunal’s decision is conditioned upon an appeal having been instituted in the Federal Court of Australia: AAT Act, s 44A.
A number of threshold difficulties confront the present application.
First is that the applicant has discontinued his appeal as instituted in this court seeking to challenge on a question of law the tribunal’s decision to grant the respondent’s request for a departure order. For these purposes, one may pass over the fact that the ‘appeal’ was not instituted within twenty-eight days of the tribunal’s decision and that it was not instituted in the Federal Court of Australia. Nor did the notice of appeal, or the amended notice, appear to state the question of law upon which the appeal was to be pursued. It is sufficient to recognise that there is now no proceeding, whether in this or any other court, as would satisfy an essential criterion for the grant of a stay under s 111C of the Collections Act to grant the relief sought by the application in a case.
Secondly, absent, relevantly, an application pursuant to s 116 of the Assessment Act, this court has no jurisdiction to entertain the most recent application for a stay. There is no application before the court as would allow it to interfere with the existing operative assessment.
Thirdly, a number of discretionary considerations would favour the refusal of relief, including that: (1) an earlier stay application has been refused; (2) the applicant’s belated decision to institute an appeal in this court was some months out of time; (3) the tribunal’s reasons confirm the applicant’s non-compliance with its directions for financial disclosure and that he elected to terminate his participation in the hearing; (4) notwithstanding the applicant’s decision to file a notice of discontinuance, there was some real delay in the institution of that appeal. Collectively, those matters weigh against the grant of relief.
It is convenient to address each of the interim orders that are sought in the terms contained in the application in a case filed on 17 January 2020.
Paragraph 1 of the interim orders sought in the application reads:
That the assessment and collection of child support payable by the Applicant in respect of Administrative Appeals Tribunal decisions dated 23^rd September 2019 be stayed pursuant to the [Collections Act] - Section 1 1C - Part 3 pending final determination of Appeal against the Administrative Appeals Tribunal (AAT) proceedings before Federal Circuit Court to be lodged.
Paragraph 1 of the application may properly be understood as seeking a stay of the assessment and collection of child support from the applicant pending the determination of an appeal before the Federal Circuit Court “to be lodged”.
Before me, the applicant accepted he had discontinued his appeal.
While any power conferred by s 44A(2) of the AAT Act to stay or otherwise affect the operation of a tribunal decision is conditioned upon an appeal having been instituted in the Federal Court of Australia, no such appeal is on foot. In a similar vein, the power conferred by s 111C(3) of the Collections Act to make such order as the court considers appropriate to stay or otherwise affect the operation or implementation of that Act and the Assessment Act is likewise conditioned upon the existence of a proceeding under the Collections Act for relief.
The short answer to the matters raised in par 1 of the application in a case is that there is no appeal or proceeding which is an essential requirement to the existence of power to grant a stay under either Act. It follows that the application for a stay must fail.
Paragraphs 2-4 of the interim orders sought in the application read:
That the Department of Human Services (Child Support) cease all current payroll garnishing enforcement action pursuant to the Child Support (Registration & Collection Act 1988) - Section 111C - Part 3 pending final determination in the Federal Circuit Court of Final Concent (sic) Orders on the 1^st March 2021.
That any monies received and currently held by the Department of Human Services (Child Support) continue to be held by the Department and not to be disbursed or paid to the Respondent pending determination of the proceedings.
Whilst the Assessment is stayed the Applicant shall continue to pay the Respondent child support in the sum of $184 per week as per regular annual Child Support Assessment.
The Registrar correctly submitted that s 111C(3) of the Collections Act confers power on, relevantly, this court to make such order as it considers appropriate to stay or otherwise affect the operation or implementation of the Assessment Act and the Collections Act if it considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
I agree in the submission that as no such proceeding has been instituted, the court’s jurisdiction to make an order under s 111C(3) of the Collections Act to stay or otherwise affect the operation or implementation of the Assessment Act and the Collections Act is not engaged. Moreover, having regard to the findings of the tribunal as set out above, including, in particular, that the applicant chose to not comply with directions to make proper financial disclosure and terminated his involvement in the hearing, I would not have been satisfied it was proper to exercise the power conferred by that section to do so. Nor would I have considered it desirable, taking into account the interests of the parties’ children, to have granted any such stay.
For the reasons above, the matters addressed by par 2-4 are rejected.
Paragraphs 5-7 of the interim orders sought in the application read:
Clarification that whist the mother has "sole parental" responsibility as outlined in current court orders, dated 15^th February 2016, in the Federal Circuit Court of Australia as directed by Judge Small. That this order is reflective of the mother having 100% financial liability for their education costs, should they attend any other educational (sic) facility above and beyond goverment eduction (sic).
If the mother decides to send one or both children to private school, that this is outside the bounds of the existing court orders and the father is not liable for any expenses and costs above and beyond what is required by government eduction (sic)
Clarification that if private schooling or any additional issues are raised and not mentioned in these court orders, that the Child Support Agency is compelled to rule ONLY on what is included in the current court orders
In his affidavit, the applicant contends that “private schooling is outside the bounds of the original consent orders . . . and falls within the spirit and meaning of ‘Sole Parental Responsibility’”.
As noted above, the essential basis upon which the applicant seeks to sheet home financial responsibility to the respondent for the children’s schooling costs is that, as the argument runs, the respondent has sole parental responsibility including as to schooling issues. An immediate flaw in the applicant’s primary contention is that the parties’ final consent order provided for the parties to have equal shared parental responsibility.
Order 2 of the final consent orders reads:
That the mother and father exercise equal shared parental responsibility for the children with the exception of education and living arrangements, where the mother is to have sole parental responsibility PROVIDED HOWEVER that the mother will inform the father of any major decisions concerning the children’s education and living arrangements and will not relocate the primary residence of the children beyond Melbourne.
As has been said to the applicant on more than one occasion, the parties’ final consent orders are silent on the question of financial responsibility for the costs of their children’s education. The same point was recognised by the tribunal in rejecting the applicant’s jurisdictional objection to it proceeding in September 2019: [13].
Part VII of the Family Law Act concerns the subject, Children. It is arranged in 16 Divisions comprising ss 60 – 70Q. The objects of Part VII are stated in s 60B(1). They include to ensure that the best interests of children are met. Relevantly, for the purposes of this application, in Pt VII of the Act, the expression parental responsibility, in relation to a child, means “all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
The concepts embraced within the expression parental responsibility are reinforced by later provisions in the Act whereby: (1) each of the parents of a child who is not eighteen has parental responsibility for the child: Act, s 61C(1); (2) the existence of parental responsibility may be subject to any order of a court: Act, s 61C(3); (3) a parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child: Act, s 61D(1); (4) a parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any) as is expressly provided for by, or as may be necessary to give effect to, the order s 61D(2). It is important to recognise that the expression parenting order has the meaning given to it by s 64B of the Act and includes the maintenance of a child.
While the Family Law Act confers power on the court to make parenting orders, including with respect to equal shared or sole parental responsibility, I agree that the making of any such orders does not operate to absolve a parent of their obligation under the Assessment Act to provide for the proper level of financial support for their children.
In my opinion, it is necessary to give the provisions of the Assessment Act, the Collection Act and the Family Law Act a harmonious operation. In particular, where the Family Law Act defines parental responsibility as including all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children, there is every reason to treat the term duties as including the duty created by s 3(1) of the Assessment Act which imposes on parents a primary duty to maintain their child. Certain propositions re undeniable. The applicant is a parent. He is subject to the duties imposed by the Assessment Act, the Collection Act. He has parental responsibility for his children. The tribunal made a decision to depart from the earlier assessment. The appeal from that decision was consciously discontinued by the applicant. The decision of the tribunal to depart from the earlier assessment is binding.
I reject the applicant’s submission that the parties’ final consent order should be construed as absolving him of the duty to maintain his children, particularly where the tribunal has determined his liability to do so and he has discontinued his appeal from that decision.
In general, the approach to the construction of a consent order is the same as that which is taken to the construction of a contract of compromise.[2] The orders of a court should be construed as two honest persons would construe their agreement.[3] The rights and obligations contained in their agreement are enforceable as an order of the court: Harris v Caladine.[4] As those principles are applied to the present case, I consider there is nothing in the parties’ final consent orders which operate to limit or confine the obligation of either party to maintain their children, including in relation to school fees. I agree in the respondent’s submission that there is no ambiguity in the parties’ final orders.
[2] Foskett on Compromise, 8^th Ed (2015), [5-36]ff.
[3]Cohen & Co v Ockerby & Co Ltd (1917) 24 CLR 288 at 300 (Isaacs J); AGL Victoria Pty Ltd v SPI Networks (Gas) Pty Ltd [2006] VSCA 173, [80] (Nettle JA, Maxwell P and Bongiorno AJA agreeing).
[4] (1991) 172 CLR 84, 104 (Brennan J), 124 (Dawson J).
The applicant has now had a significant opportunity to address the issues arising in this proceeding, including to seek a departure order from this court, but has not done so. In the circumstance that he has deliberately chosen “not to roll the dice” in relation to his appeal from the tribunal’s decision made on 10 September 2019, I do not accept that he should be permitted to, in effect, mount a collateral attack on that administrative decision by relying upon a notation of his contention as to how he wishes to limit his liability. It is, however, a separate question whether he may seek a departure order from this court in the future.
For completeness, I accept the Registrar’s submission that the orders sought by par 7 of the application in a case impermissibly purport to bind the Registrar and limit the manner in which the matters prescribed by the Assessment Act are to be taken into account when deciding whether or not to make a departure order. While the court may assign liability to one or both of the parties for school fees (or other costs), the circumstances in which this has occurred will constitute a matter that the Registrar may take into account. I do not accept that the court can fetter the Registrar in the exercise of the powers and functions that are conferred by the Assessment Act.
Paragraph 8 of the interim orders sought in the application reads:
That should the mother’s request [for] financial assistance to send one or both children to Private Education that this is offset against any on going child support payments and the Child Support Agency is compelled to uphold any agreement as directed by these court orders
For similar reasons, I do not accept that in the circumstances of this case, the Registrar should be restrained in the manner suggested by par 8 of the application in a case. The Registrar correctly submitted that what the applicant was, in effect, seeking was to circumvent the statutory regime provided by Pt 7, Div 5 of the Assessment Act when there was no application on foot to do so. And there is presently no application for a departure order made to this court under s 116 of the Assessment Act.
Paragraph 9 of the interim orders sought in the application reads:
That the Respondant (mother) immediately remove X from private schooling due to failing grades and enroll him in a public school. Further that should either child have failing grades that they should be withdrawn from private schooling immediately and sent to a government school.
By this paragraph the applicant seeks, in substance, to subvert the parties’ final consent order pursuant to which it is expressly agreed that the respondent should have sole responsibility for schooling issues.
As noted in the course of submissions, final orders were made in 2016. If the respondent seeks to have those orders set aside (as indeed he now seeks to do by his amended initiating application), he must first address the threshold requirements stated in Rice & Asplund[5] before those orders may be revisited. As counsel for the respondent submitted, the applicant has not provided any evidence as would demonstrate a significant change, whether in relation to his financial circumstances or otherwise as to warrant a change from the parties’ consent orders. In this connection, I reiterate the tribunal’s observation that one reason it took into account in deciding to proceed with the respondent’s application for a departure order was that despite request, the applicant failed to comply with directions to make financial disclosure. It may be anticipated that if the applicant continues to maintain the position that he will not make financial disclosure in this proceeding, then the prospect of satisfying the threshold requirements of Rice & Asplund will be remote.
[5] (1979) FLC 90-725.

Conclusion

For the reasons set out above, the application in a case should be dismissed. However, as the Registrar observed, it may be open to the applicant to amend his initiating application to seek a departure order from the court pursuant to s 116 of the Assessment Act. If he was to do so, the applicant would need to address the significant requirements of

s 117 of the Assessment Act before the court was persuaded that it was just, equitable and otherwise proper to make orders of the kind which he seeks.
Not without hesitation, as the applicant is self-represented, he should be afforded an opportunity to further amend his initiating application.

I certify that the preceding seventy-five (75) paragraphs are a true copy of the reasons for judgment of Judge A Kelly

Associate:

Date: 16 June 2020