Aldridge and Tait and Anor

[2013] FCCA 1422

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALDRIDGE & TAIT & ANOR [2013] FCCA 1422

Catchwords:
CHILD SUPPORT – Long delay in bringing application – Father not spending time with the children – consideration of “special circumstances” – de facto Wife hiding child support assessments from de facto Husband – role of McKenzie friend to support not to advocate.

Legislation:

Child Support (Assessment) Act 1989, ss.111, 112(4), 117(1), (2), (4), (5)

Gilmour & Gilmour (1995) FLC ¶92-591
Gyselman & Gyselman (1991) 103 FLR 156; (1992) FLC ¶92-279
Hides v Hatton (1997) 139 FLR 91, 21 Fam LR 855, FLC ¶92-759
N v M (2005) FMCAfam 484
Watson & Watson (2001) 166 FLR 229; (2001) 28 Fam LR 481; (2002) FLC ¶93-094; [2001] FamCA 1470

Applicant: MR ALDRIDGE

First Respondent: MS TAIT

Second Respondent: MS SCOTT

File Number: CAC 840 of 2008

Judgment of: Judge Neville

Hearing date: 12 July 2013

Date of Last Submission: 12 July 2013

Delivered at: Canberra

Delivered on: 6 September 2013

REPRESENTATION

Counsel for the Applicant: Self Represented

Solicitors for the Applicant: Not applicable

Counsel for the Respondents: No appearance

Solicitors for the Respondents: No appearance

ORDERS

1. The Application filed 26 November 2012 is dismissed.

2. There be no order as to costs.

3. The matter be removed from the docket.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 840 of 2008

MR ALDRIDGE

Applicant

And

MS TAIT

First Respondent

MS SCOTT

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. On 6^th September 2013 I provided oral reasons and pronounced orders dismissing the Application that was filed on 26^th November 2012. The reasons that follow have been revised from the transcript.

2. The Respondent Mothers to the current Application have not engaged with these proceedings.  The First Respondent, who is the party most directly affected by the Application has been served with the Application.  There are, in fact, Affidavits of Service and Acknowledgements of Service on the Court file in relation to both Respondents.  The Applicant is a self-represented litigant.

3. By leave, I granted Ms W permission to appear with Mr Aldridge as a “McKenzie friend” on the basis that the Applicant has some hearing and other difficulties.[1]  He is on a disability pension.  While she did not present his case, both during the hearing and since, Ms W is both forthright and persistent in the prosecution of Mr Aldridge’s case.  She informed the Court that she acts voluntarily on behalf of a number of people in situations similar to Mr Aldridge.  At times Ms W’s advocacy post the hearing has been well beyond the proper ambit of a McKenzie friend from one of support to one of strong advocacy.  I will say no more about this subject, save that Mr Aldridge responded to any questions asked of him in the course of the hearing without any apparent difficulty.

   [1] For the bases upon which a “McKenzie friend” may be appointed, see the Full Court discussion in Watson & Watson (2002) FLC ¶93-094.

4. The nature and ambit of the claim is very modest, seeking as it does remedial orders for over-payment, or alleged wrongful payment, under the Child Support (Assessment) Act 1989 in relation to two of Mr Aldridge’s children with Ms Tait.

Details of the Application

1. Mr Aldridge seeks orders pursuant to s.117 of the Child Support (Assessment) Act 1989 (“the Act”) for a departure order in relation to his children X and Y.  Those children are now aged 17 and 16 years respectively.  There is a third child of the relationship (Z), who was born in 1999, but the Application does not concern her.  He seeks that a new assessment issue for the period November 1996 to 31 December 2000, and that that assessment be declared as “nil”.  He seeks further the return of funds paid under the old assessment, which sum, as set out in his affidavit filed 26 November 2012, is $4,727.00.  Although the amount in issue is not large, as someone who is on a disability pension it is a significant sum for Mr Aldridge.

2. In very general terms, Mr Aldridge says that previous assessments by the Child Support Agency (“the CSA”) for the relevant period were predicated upon the erroneous fact that he and the Respondent were not residing together.  He says that he only learnt of documentation regarding the earlier but now challenged assessment when renovations were done to his house.  He said he had no knowledge of the assessment until the renovations were done, some years after the parties separated. 

3. In essence, he claims that Ms Tait improperly obtained child support payments based upon an incorrect factual basis, namely that the parties were not residing together when in fact, at the relevant time for which the assessment issued and for which child support was paid, the parties were living together.

4. Since learning of the assessments, on a number of occasions he has raised objections to them with the CSA.  Those objections were made in July 2002 and again in February 2004.  On those occasions, the CSA refused to accept his objections.

5. Annexure B to his affidavit is a copy of a letter from the CSA (as it then was) dated 15^th July 2002, which confirmed that his objection related to a period in 1998, and under the Act as it then stood there were no objection rights. Accordingly, Mr Aldridge’s objection was determined to be invalid.

6. Annexure C to Mr Aldridge’s affidavit provides a copy of a letter from the CSA dated 26^th February 2004 which notes, among other things, the state of the legislation, as it then stood in relation to his objection in 1998, and the new rights of objection that came into the Act pursuant to amendments in 1999. The CSA also advised the Applicant that his only course, in its view, was to seek redress in the Court under s.110 of the Act.

7. Interestingly, the CSA referred to Ms W’s advocacy on Mr Aldridge’s behalf as long ago as 2004.  Literally and figuratively, she has clearly been on his case, so to speak, for quite some time.

8. Mr Aldridge contacted the CSA again in September 2009 and again in March 2010 setting out the correct factual basis he says would render the earlier assessment inappropriate, if not formally invalid.  Except for some general comments at paragraphs 22 and 23 of his supporting affidavit, which depose to difficulties in locating the whereabouts of Ms Tait, it was not clear why there was such a delay between his objection in 2004 and the later objection in 2009.  The delay is not insignificant.

9. Annexure E to Mr Aldridge’s affidavit is a detailed letter from the CSA, dated 5^th October 2009, which outlines various scenarios under the Act that would not disentitle a person from receiving child support even in circumstances where the parents of a child had reconciled. The CSA’s letter notes some further changes to the Act in July 2008, which qualifies the scenario just outlined.

10. In its letter of October 2009, the CSA also recounted the history of objections and the negative result of them.  Further, the CSA noted that any retrospective change of assessment could only apply to a case “for a period of up to 18 months prior to the date the application is made, or seven years with leave of a court.”  The CSA pointed out that the period in question here is over seven years, and stated “neither CSA nor a court has any legislative power to change the assessment for a period greater than seven years.”

11. In addition to contacting his local Member of Parliament to seek assistance,[2] he also took the matter to the Social Security Appeals Tribunal (“the SSAT”) in February 2012; the SSAT responded to him in April 2012.  A copy of the letter to Mr Aldridge from the SSAT rejecting his application is annexure L to his affidavit.

    [2] The detailed reply from the Minister for Human Services and Social Inclusion (Ms Plibersek MP), dated 22^nd August 2011, is part of annexure J to Mr Aldridge’s affidavit.

12. For completeness, Mr Aldridge provided a copy of the final correspondence from the CSA, dated 15^th February 2012, which is annexure M to his affidavit.  This letter from the CSA provides an overview of his contest over child support, and confirms certain information, including postal addresses for the relevant child support periods in question (and beyond).

The Complaint: Written Submissions

1. As already noted, the substance of Mr Aldridge’s complaint is that during the relevant period that Ms Tait claimed child support, the parties were in fact both residing in (omitted), and at no time throughout the period that child support was claimed (1996 to the end of December 2000) were the parties separated.

2. In very helpful written submissions that were provided pro bono by an experienced family law practitioner on behalf of Mr Aldridge, the following matters were put to the Court.

3. First, the basis for the liability under the Act is that the parties have separated; that was not the case for the relevant period here. Secondly, the reason for the delay in bringing the current application is because Mr Aldridge was unaware of the assessments because the Mother had obtained all notices posted by the CSA and hid them.

4. The Applicant wrote to the CSA in July 2002, disputing the assessment. However due to a technicality – it was submitted that there was no provision in the Act as it then applied – the CSA rejected the objection.

5. The Applicant also submitted that Ms Tait’s whereabouts were in dispute for a significant period of time, which resulted in further delay in making the application. He did not pursue the matter until September 2009. The CSA replied in October 2009 saying that it could not determine whether two people did or did not separate for a period of time during the relationship. Further, the submissions fairly state that changes to the Act in the 2008 amendments could not assist the Applicant.

6. The Applicant submitted that even though the application is made more than seven years after the period of assessment, according to rules of procedural fairness leave should be granted to allow the application to proceed, and in turn, for the submissions put to the Court, it should succeed.

7. The Applicant also submitted that the Court has power to grant leave to amend an assessment that is more than 18 months old pursuant to s.112(4) of the Act. Other than this submission, there is no formal order sought in the Application to this effect.

8. The Applicant further submitted that he was never provided by the CSA with written notice of rights of appeal and variation by departure orders.  He also said that because of his financial hardship, his appeal should be allowed.

Consideration & Resolution

1. First, the procedural requirements to deal with a departure application have been set out clearly in decisions that are of long standing.  It is sufficient to note the following from the Full Court judgment in Hides v Hatton.[3]  Thus, the Full Court (Barblett DCJ, Finn & Chisholm JJ) said (at FLR pp.97 – 98):

   [3] Hides v Hatton (1997) 139 FLR 91, 21 Fam LR 855, FLC ¶92-759. See also the earlier Full Court decisions in Gyselman & Gyselman (1991) 103 FLR 156, (1992) FLC ¶92-279, and Gilmour & Gilmour (1995) FLC ¶92-591.

   … as was made clear by the Full Court in In the Marriage of Gyselman (1991) 103 FLR 156, it is a highly structured discretion with the court being required to adhere to the following strict three-step process and to consider (at 157):

   1. Whether one or more grounds of departure in s 117(2) is established.  If so:

   (2) Whether it is “just and equitable” within the meaning of s 117(4) to make a particular order.

   (3) Whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order.

   It was also made clear in Gyselman that when the court is considering whether it is just and equitable within the meaning of s 117(4) to make a particular order, the court is required to undertake the task of considering the matters set out in paragraphs (a) to (g) of that sub-section, and in this regard the Full Court said as follows (at 181):

   However, some of the matters listed in subs (4) may overlap with matters already considered under subs (2) and some of the paragraphs in subs (4) may be more significant in one case than they would be in another or of little relevance in a particular case. It is an essential part of the s 117 exercise to carry out the obligation under subs (4). However, that does not mean that it is necessary in each case to slavishly go through each of the paragraphs. The extent to which it is necessary to do so will depend upon the facts and conduct of the individual case and the analysis already performed under subs (2).

   The Full Court also made it clear in its decision in Gyselman that similar considerations apply to the court's determination as to whether it is “otherwise proper” within the meaning of s 117(5) to make a particular order (see p 79,080), and furthermore and very relevantly for present purposes the Full Court emphasised the importance of trial judges providing adequate reasons for judgment in order to ensure a proper exercise of the discretion under s 117: see at 184.

2. Later in the same case, the Full Court said (at FLR p.101):

   We would accept that in determining whether under s 117(4) it is just and equitable to the parties and child concerned to make a particular order, or under s 117(5) otherwise proper to make that order, the court can have regard to the impact on the payer or the payee of the making of a departure order setting liability for a past period and thus immediately creating the burden of arrears for the payer or of a credit for the payee (the court being able under s 117(9) to have regard to matters beyond those specified in ss 117(4) and (5)). These may also be matters which could be addressed under s 117(2)(c) when considering whether a ground for departure exists in a particular case.

3. And a little later still, the Full Court said (at FLR p.101) (emphasis in original):

   It should be clear from what we have said in discussing both the issues of the range of departure applications which were before the trial judge and also the retrospective operation of departure orders, that the task of a trial judge in making a departure order from an assessment for a past child support year, has, or at least can have, a dual dimension. By this we mean that not only must the judge apply the three stage process under s 117(2), (4) and (5) in relation to the circumstances of the parties as they existed in the child support year in question, but also in relation to the present circumstances of the parties (if at all relevant).

4. For my part, the following matters are critical having regard to the terms of s.117 of the Act and the instruction of the Full Court regarding the process and the considerations to which the Court must attend in applications of the kind before the Court:

   a)As already noted, the Applicant submitted that it was a “technicality” that there was no relevant provision in the Act for the period 1996 to 2000 that would enable his current Application to succeed. Such an omission under the Act, in my view, is significant, and much more than a mere “technicality”.

   b)Under s.111 of the Act, the Court is empowered to hear an application for amendment of an administrative assessment that is more than 18 months old, but it cannot be more than 7 years old.

   c)The Court is required to consider a range of matters set out in s.112 of the Act as to whether to grant leave to amend an administrative assessment that is more than 18 months old. Those considerations include the reason and responsibility for the delay in bringing the application, the impact (or hardship) on both the Applicant if leave is not granted; and the hardship to the other party if leave is granted. The Court may have regard to any other relevant matter.

   d)The Court must also have proper regard to the range of matters that are set out in s.117 of the Act, most relevantly in current circumstances, the Court must have regard to the reasons for the delay in bringing the application, hardship to the Applicant if leave is not granted, hardship to the other party if leave is granted, and “any other relevant matter.” Even after considering s.117(2), the Court must also have regard to ss.117(4) and (5), as to whether any proposed departure is both “just and equitable” and “otherwise proper.”

5. In Gyselman, at FLR p.164, the Full Court said of “special circumstances” in relation to s.117(2):

   While it is not possible to define with precision the meaning of that term, as a generality it is intended to emphasise that the facts of the case must establish something which is special or out of the ordinary.  That is, the intention of the legislature is that the court will not interfere with the administrative formula result in the ordinary run of cases.

6. In my view, and accepting the account of events by Mr Aldridge, the hiding of CSA assessments takes the matter out of “the ordinary run of cases.” But that is not the end of the matter because the Court must attend to the terms of s.117 and the processes there outlined. In particular, having regard to ss.117(2), (4) and (5), the following matters are critical.

7. In the course of the hearing, Mr Aldridge confirmed that he was not seeing his children. However, he also said that he sought always to place their interests as a priority. There is some curiosity in this. On the one hand, Mr Aldridge seeks to recover child support payments that are now more than a decade old (and long beyond the period specified under the Act), and has prosecuted this course (with the consistent support, it would seem, of Ms W); on the other hand, there is no evidence that he has prosecuted at all actually spending time with his children. There may be very good reasons for this. The only information given by Mr Aldridge in the course of the hearing (not under oath) was that his children no longer wished to see him. Formally, the Court draws no inference from the disjuncture between not spending time with the children and the funds sought to be recovered to which I have referred. However, it is a matter to which I should properly have some regard.

8. My further concern is that if I was to make the orders sought by the Applicant, there is a likely risk that it could impact not only upon the other party (his former partner) but most relevantly, upon his children.  I would be concerned, above all else, that it may impact negatively upon his children, which, according to his oral submissions, he would not wish to happen.

9. Next, accepting at its highest Mr Aldridge’s reasons for the delay in bringing the Application, it is now approximately 12 years or so since the end of the assessment period about which he complains.  Even allowing for the very unusual circumstances he explains in his material, that period is such a long time ago that I do not see how the Court could grant his application.

10. Finally, although there are many cases that could be cited in relation to the risk of prejudice to the other party, it is sufficient to note that in the case of N v M (2005) FMCAfam 484, an application to extend time after a period of three years was not granted because of the risk of prejudice to the Respondent. I have already mentioned that here we are looking at a time period in excess of 12 years.

11. While I understand all of the matters that Mr Aldridge raises, in all of the circumstances, I do not think it would be just and equitable, or “otherwise proper” for the orders sought by the Applicant to be made. 

12. Accordingly, the Application must be dismissed.  I make no order as to costs.

I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Judge Neville

Date:  28 September 2013