ALPRESS & FEENEY

[2014] FCCA 521

FEDERAL CIRCUIT COURT OF AUSTRALIA

ALPRESS & FEENEY [2014] FCCA 521

Catchwords:
CHILD SUPPORT – Determination – application for leave – where applicant applies for leave for a determination under Child Support (Assessment) Act 1989 (Cth) s.98S or s.116 – application in respect of child support periods over 18 months and less than 7 years from the date of the Application.

DELAY – Whether unwarrantable delay – whether explanation for delay in bringing application – no satisfactory explanation for delay.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.98B, 98S, 111, 112, 116, 118

Cases cited:
Re Commonwealth of Australia; Ex parte Marks (2000) 177 ALR 491
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

Applicant: MS ALPRESS

Respondent: MR FEENEY

File Number: SYC 2305 of 2013

Judgment of: Judge Scarlett

Hearing date: 10 December 2013

Date of Last Submission: 10 December 2013

Delivered at: Sydney

Delivered on: 11 March 2014

REPRESENTATION

The Applicant: In person

The Respondent: In person

ORDERS

1. The Application for leave filed on 15 July 2013 is dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 2305 of 2013

MS ALPRESS

Applicant

And

MR FEENEY

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the mother of three children for leave under s.112 of the Child Support (Assessment) Act 1989 (Cth) for the Child Support Registrar to make a determination under s.98S of the Act, or by the Court under s.116, in relation to child support periods that are over 18 months and less than 7 years earlier than the date of the Application.

2. In my view, the Application should specify s.118 of the Act rather than s.116, but nothing turns on that point.

Orders Sought

1. Apart from leave under s.112, the Applicant seeks Orders in respect of five child support periods from 24 July 2006 to 21 October 2010. The Applicant seeks Orders:

   That there be departure from administrative assessments of child support as follows:

   (a)that from 24 July 2006 to 30 June 2007 setting the respondent’s adjusted taxable income at $127,000 per annum.

   (b)that from 1 July 2007 (to) 30 June 2008 setting the respondent’s adjusted taxable income at $127,000 per annum.

   (c)that from 1 July 2008 to 30 June 2009 setting the respondent’s adjusted taxable income at $127,000 per annum.

   (d)that from 1 July 2009 to 30 June 2010 setting the respondent’s adjusted taxable income at $127,000 per annum.

   (e)that from 1 July 2010 to 21 October 2010 setting the respondent’s adjusted taxable income at $127,000 per annum.

   [OR IN SUCH OTHER AMOUNTS AS THE COURT DETERMINES IN THE SPECIAL CIRCUMSTANCES OF THE CASE]

2. The Application is supported by an affidavit of the Applicant sworn on 11^th July 2013.

3. The Respondent filed a Response on 7^th August 2013, seeking that the Application should be dismissed with costs.     

Evidence

1. The Applicant relied on her affidavit of 11^th July 2013. She was cross-examined by the Respondent.

2. In her affidavit, the Applicant deposed that she had applied for leave in accordance with s.111 of the Child Support (Assessment) Act 1989 to amend child support assessments more than 18 months old and less than 7 years earlier than the date of filing her Application.

3. The Applicant provided a table in her affidavit showing the Respondent’s taxable income for child support periods from 24^th July 2006 through 30^th June 2013. For the periods from 24^th July to 21^st October 2010, the Respondent’s adjusted taxable income was shown as ranging from $0, for the period 7^th March 2007 to 23^rd October 2007, to $32,819.00 for the period from 1^st February to 21^st October 2010. However, the table shows that the adjusted taxable income for the Respondent for the period 22^nd October 2010 to 30^th June 2013 was considerably higher, being $127,000.00 for the periods from 22^nd October 2010 to 30^th November 2011[1] and $100,000.00 for the periods from (presumably) 1^st December 2011[2] to 30^th June 2013.

   [1] Although the table gives the date “31/11/11”

   [2] The table gives the date “0/12/11”

4. The Applicant explains the difference between the figures for the periods at paragraph [8] of her affidavit:

   The administrative assessments of child support payable by the Respondent payer Mr Feeney from 24 July 2006 to 21 October 2010 were based on income tax returns having been filed, with no consideration to the access of funds by Mr Feeney through his company, (omitted) Pty Ltd previously known as (omitted) Pty Ltd.[3]

   [3] Affidavit of Ms Alpress 11.7.2013 at paragraph[ 8]

5. However, the Child Support Registrar made a Registrar Initiated Change of Assessment on 23^rd December 2010, increasing the Respondent’s adjusted taxable income to $64,414.00 for the period from 22^nd October 2010.

6. The Applicant successfully objected to that decision as a decision was made increasing the Respondent’s adjusted taxable income to $127,176.00 for the period from 22^nd October 2010 to 31^st October 2013.

7. The Respondent appealed against that decision to the Social Security Appeals Tribunal. On 20^th December 2011, in a decision despatched on 23^rd December 2011, the Tribunal set aside the decision under review and substituted a decision in which:

   a)For the period 22^nd October 2010 to 31^st November 2011, the Respondent’s adjusted taxable income was set at $127,000.00 per annum;

   b)From 1^st December 2011 to 31^st October 2013, the Respondent’s adjusted taxable income was set at $100,000.00 per annum; and

   c)From 22^nd October 2010 to 31^st October 2013 the Applicant’s adjusted taxable income was set at $25,183.00 per annum.

8. In her affidavit, the Applicant stated that the Social Security Appeals Tribunal had found that:

   a)from 22^nd October 2010 to 31^st November 2011 the Respondent had income of at least $127,000.00 from self-employment in a business; and

   b)from 1^st December 2011 the Respondent was employed in his brother’s company, (omitted) Pty Ltd, at a salary of over $100,000.00 per annum.

9. The Applicant annexed to her affidavit a copy of a Company Summary from ASIC showing that the Respondent’s company, (omitted) Pty Ltd (formerly (omitted) Pty Ltd) was registered on 11^th August 1997. 

10. The Applicant claims that the Respondent owns property, including a house and a house boat valued at $200,000.00.

11. The Applicant also deposes that she does not believe that the Respondent will suffer hardship if leave were to be granted, but she believes that she will suffer hardship if leave is not granted to her.

12. In her oral evidence, the Applicant explained her delay in bringing the application by saying that it was not until the decision of the Social Security Appeals Tribunal that the child support was being assessed on the Respondent’s true income. She had not thought it was necessary to bring an application previously.

13. The Respondent’s affidavit only stated that there were currently proceedings before the Court filed by the Australian Government Solicitor.

14. In his oral evidence, the Respondent said that he and his current partner had seven children between them. They have debts which are being paid from his wages, including an amount owing to the Australian Taxation Office.

The Law to be applied

1. Section 98S of the Child Support (Assessment) Act 1989 permits the Child Support Registrar to make determinations:

   a)varying the rate of child support payable by a liable parent;

   b)varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;

   c)making provision with respect to the calculation of any such amount in relation to the liable parent;

   d)varying the child support income amount or disregarded income amount of the carer entitled to child support;

   e)making provision with respect to the calculation of any such amount in relation to the carer entitled to child support; or

   f)directing that one or more of the provisions of s.42 or s.52 of the Act do not apply.

2. However, the Registrar may only make a determination in respect of a day in a child support period more than 18 months earlier than the day on which the application for determination is made under s.98B if a court has granted leave under s.112 for the determination to be made (s.98S(3B)).

3. If a court does grant leave under s.112, the Registrar may only make a determination in respect of a day in a child support period if the day is within the period specified by the court, under s.112(6).

4. Section 111(1) entitles parties to apply for amendment of an administrative assessment that is more than 18 months old, being an application for leave for:

   a)the Registrar to make a determination under s.98S; or

   b)the court to make a determination under s.118.

5. Subsection 112(1) empowers a court to grant leave for the Registrar to make a determination under s.98S or the court to make an order under s.118.

6. The Court may grant leave for an order to be made under s.118 if the court is satisfied that it would be in the best interests of the parties to consider whether, at the same time as it hears the application under s.111, an order should be made under s.118 (s.112(2)). Otherwise, the court may grant leave for the Registrar to make a determination under s.98S (s.112(3)).

7. When a court is considering whether to grant leave under subsection (1), subsection (4) provides that it must have regard to:

   a)any responsibility, and reason, for the delay in making an application under s.98B or s.116;

   b)the hardship to the applicant if leave is not granted; and

   c)the hardship to the respondent if leave is granted.

Conclusions

1. The Applicant seeks leave for determinations to be made in respect of child support periods commencing as far back as 24^th July 2006. The Application was filed on 15^th July 2013, so all the child support periods are more than 18 months and less than 7 years earlier than the date of the Application.

2. The Applicant states that she will suffer hardship if leave is not granted, because she has been denied a proper rate of child support and has had to make significant sacrifices over the past seven years to make up for the lack of support provided by the Respondent.[4]

   [4] Affidavit of Ms Alpress 11.7.2013 at paragraph [23]

3. If that is the case, then the Applicant has established hardship under s.112(4)(b).

4. The Applicant expresses doubt that the Respondent would suffer hardship if leave were to be granted because he has earnings as an employee and continues to have access to the company funds of (omitted) Pty Ltd, which she believes continues to trade and receives income from (omitted) Pty Ltd.[5]

   [5] Affidavit of Ms Alpress 11.7.2013 at [19]

5. The Respondent claims that he would suffer hardship, as he and his new partner have the care of seven children between them. He is currently making regular payments to the Australian Taxation Office.

6. It is not in issue that the Respondent is in arrears of child support to the extent of approximately $32,000.00.[6]

   [6] Ibid at [21]

7. The facts would suggest that the Respondent would be likely to suffer hardship if his previous child support assessments were redetermined and increased. This would lead to an increase in the arrears of child support he currently owes.

Delay

1. In my view, one of the hurdles the Applicant has to overcome is the delay in bringing the Application. It was not until the Registrar made a change of assessment on 23^rd December 2010, that the Applicant objected to the decision and a further decision was made by the Registrar. That decision led to the Respondent’s appeal to the Social Security Appeals Tribunal.

2. The Tribunal decision was despatched on 23^rd December 2011, but the Applicant did not commence proceedings in this Court until 15^th July 2013, some nineteen months later. The Applicant told the Court that there was a decision made by the SSAT and she did not think at the time it was necessary to make an application.

3. It is noted that the Social Security Appeals Tribunal stated at paragraph [34] of its decision:

   It is appropriate that the change to assessment commence on 22 October 2010, the date on which the Registrar formally initiated the change of assessment. Ms Alpress has long suspected that Mr Feeney has a greater capacity to pay child support but did not initiate a change of assessment application. No compelling reason was advanced by Ms Alpress as to why the change of assessment should be backdated further.[7]

   [7] Affidavit of Ms Alpress 11.7.2013 Annexure “D”

4. In my view, the Applicant has not established any reasonable explanation for her delay in bringing her application. It is noteworthy that the child support periods for which she seeks leave go from 24^th July 2006 to 21^st October 2010, being a period from 7 years through to two years and nine months prior to the date upon which she commenced proceedings.

5. Subsection 112(4) provides that in considering whether to grant leave, the Court must have regard to any responsibility and any reason, for the delay in making an application.

6. It is clear that the responsibility for the delay lies with the Applicant. The reason for the delay in bringing this Application for nineteen months after the date of the SSAT decision has been, at best, poorly explained.

7. Notwithstanding the fact that the Applicant may well have had a suspicion that the Respondent had a greater capacity to pay child support, she did not take any steps to bring about a reconsideration of the assessments until 16^th October 2011, when she lodged an objection to the change of assessment initiated by the Registrar. There is no evidence that she objected and sought a review of any of the decisions by the (then) Child Support Agency prior to that date.

8. It has long been established that unwarrantable delay justifies the withholding of relief (see The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd[8] at 400). A delay of more than a year should ordinarily lead to relief being refused in the exercise of the court’s discretion (see Re Commonwealth of Australia; Ex parte Marks[9] per McHugh J at 495-496).

   [8] (1949) 78 CLR 389

   [9] (2000) 177 ALR 491

9. The Applicant’s unwarrantable delay in bringing an application for leave under section 111of the Child Support (Assessment) Act 1989 for determinations of child support periods up to almost seven years earlier, including a delay of nineteen months in bringing an application after the decision of the Social Security Appeals Tribunal had been despatched, has not been satisfactorily explained. It is a reason why the Court, in exercising its discretion under s.112(4) of the Act, should decline to grant leave to the Applicant for leave for:

   a)the Registrar to make a determination under section 98S; or

   b)the Court to make an order under section 118.

10. The Application will be dismissed.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  11 March 2014