Balshaw and Balshaw and Anor

[2016] FCCA 1176

FEDERAL CIRCUIT COURT OF AUSTRALIA

BALSHAW & BALSHAW & ANOR [2016] FCCA 1176

Catchwords:
CHILD SUPPORT – Departure from assessments – application for leave under Child Support (Assessment) Act 1989 (Cth), s.112 – whether the Court may grant leave to the Child Support Registrar – whether assessment is “in force” – where terminating events have occurred – where both applicant and respondent seek leave under s.112 – where respondent seeks leave for a period in excess of 7 years – where applicant and respondent both consent to the grant of leave – whether consent of the parties should outweigh all other considerations – where applicant and respondent both seek in the alternative an order to be made by the Court under Child Support (Assessment) Act 1989 (Cth), s.118 – where application cannot be made under Child Support (Assessment) Act 1989 (Cth), s.98B – where departure determination cannot be made under s.98S – Child Support Registrar cannot make a departure determination under s.98S unless an application has been made under s.98B – administrative assessment of child support is not in force once a child support terminating event has occurred.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.12, 31, 77, 98B, 98C, 98S, 111, 112, 118, 142, 151B

Cases cited:

Dwyer v McGuire (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-240
Hendy v Deputy Child Support Registrar (2001) 27 Fam LR 641; [2001] FamCA 632
Klement & Glynn [2010] FamCA 40
McColl & McColl [2013] FCCA 736

Applicant: MR BALSHAW

First Respondent: MS BALSHAW

Second Respondent: CHILD SUPPORT REGISTRAR

File Number: SYC 6997 of 2014

Judgment of: Judge Scarlett

Hearing date: 7 December 2015

Date of Last Submission: 7 December 2015

Delivered at: Sydney

Delivered on: 17 May 2016

REPRESENTATION

Solicitor for the Applicant: Mr McCulloch

Solicitors for the Applicant: Legal Aid NSW

Solicitor for the First Respondent: Ms Morey

Solicitors for the First Respondent:	South West Sydney Legal Centre (now Coleman Greig Lawyers)
Counsel for the Second Respondent:	Mr Kaplan
Solicitors for the Second Respondent:	Australian Government Solicitor

ORDERS

1. The Application for leave to be granted to the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the periods 27 February 2009 to 30 November 2009 and 1 December 2009 to 28 February 2011 contained in the Initiating Application filed on 5 November 2014 is dismissed.

2. The Application for leave to be granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the period 10 May 2006 and 15 November 2013 contained in the Response filed on 9 February 2015 is dismissed as incompetent.

3. The Application for Orders under section 112 of the said Act for leave to be granted for the Court to make a determination under section 118 of the said Act contained in the Initiating Application filed on 5 November 2014 is transferred to the docket of Judge Henderson to be listed for mention on a date to be fixed for the purpose of setting a final hearing date.

4. The Application of Orders under section 112 of the said Act for leave to be granted for the Court to make a Determination under section 118 of the said Act contained in the Response filed on 9 February 2015 is transferred to the docket of Judge Henderson to be listed for mention on a date to be fixed for the purpose of setting a final hearing date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 6997 of 2014

MR BALSHAW

Applicant

And

MS BALSHAW

First Respondent

CHILD SUPPORT REGISTRAR

Second Respondent

REASONS FOR JUDGMENT

Application

1. This is a decision about a preliminary issue arising from an Application by the Applicant and a cross-claim made by the Respondent in her Response for leave to be granted to the Child Support Registrar under the provisions of s.112 of the Child Support (Assessment) Act 1989 (Cth) to permit the Registrar to make determinations under s.98S of the Act in respect of periods of time from 10^th May 2006 to 15^th November 2013.

2. Both the Applicant and the Respondent seek leave in the alternative under s.112 of the Child Support (Assessment) Act 1989 for the Court to make a determination under the provisions of s.118 of the Act.

3. I am satisfied that the contention of the Child Support Registrar that there is no power in this case for the Court to grant leave to permit the Registrar to make determinations under s.98S of the Act is correct.

4. Accordingly, those parts of the Application and the Response will be dismissed. The application in the Response will also be dismissed as incompetent as it seeks leave for a determination to be made more than seven years prior to the date when the Response was filed. Subsection 112(7) of the Act only gives power to the Court to make an order granting leave if the period specified is more than 7 years earlier than the day on which the Application, or in this case the Response, was filed.

5. The Response seeks leave for a determination to be made going back to 10^th May 2006, whereas the Response was filed on 9^th February 2015. Clearly, the commencement date is more than 7 years prior to the date the Response was filed.

Orders Sought

1. The Applicant filed an Initiating Application on 5^th November 2014 seeking, inter alia, this Order:

   1. That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave be granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the periods:

   a.  from 27 February 2009 to 30 November 2009; and

   b.  from 1 December 2009 to 28 February 2011.

2. The Application also sought orders in the alternative granting leave under s.112 of the Act for leave to be granted for the Court to make a determination under s.118 of the Act that should be a departure from the administrative assessment of child support for the parties’ two, now adult, children.

3. The Respondent, in a Response filed on 9^th February 2015, sought, inter alia, this order:

   2. That pursuant to section 112 of the Child Support (Assessment) Act 1989, leave be granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the period from the start of the child support case on 10 May 2006 until the end of the child support case on 15 November 2013.

4. The Child Support Registrar opposed the grant of leave for the Registrar to make a determination under s. 98S on the basis that a child support terminating event had occurred in respect of each of the parties’ two children and so the assessments were no longer in force.

5. The Registrar offered no view on the parties’ alternative applications for leave to be granted under s.112 for the Court to make a determination under s.118 of the Act.

Background

1. The child support assessments were made in respect of the parties’ two children, X, who was born on (omitted) 1994 and Y, who was born on (omitted) 1995.

2. There have been terminating events under the provisions of s.12 of the Child Support (Assessment) Act in respect of both children.

3. X attained the age of 18 years on (omitted) 2012. This was a terminating event with respect to him.

4. The assessment in respect of the parties’ daughter Y was extended on 13^th September 2013. On that date, the Registrar accepted under s.151C of the Act and application under s.151B for the assessment in relation to Y to continue in force until she completed secondary school on 15^th November 2013.

5. That date has duly passed and this, too, is a terminating event.

Submissions

1. All three parties filed written submissions and their lawyers made oral submissions at the hearing on 7^th December 2015.

2. Mr McCulloch, solicitor, for the Applicant Father, submitted that his client disagreed with the Registrar’s interpretation of s.98B of the Act, which had recently changed. The Registrar’s former practice of accepting applications for departure after the occurrence of a terminating event had been reversed.

3. It was submitted that the revised policy was based on a flawed interpretation of the Act, in that the Act does not set out the circumstances in which an administrative assessment is “in force” and does not state that an assessment ceases to be “in force” once a terminating event occurs.

4. Mr McCulloch referred the Court to the decision of Dawe J in Klement v Glynn[1], a decision relied on by the Registrar. He referred to paragraph [31] of the decision, where her Honour said:

   The significant fact however is that section 98B specifically required that the carer may request a departure from an administrative assessment of child support…at any time when an administrative assessment is in force.

   [1] [2010] FamCA 40

5. It was submitted that her Honour ultimately did not make a decision as to whether relevant administrative assessments remained in force.

6. Mr McCulloch also relied on the decisions of Dwyer v McGuire[2] and Hendy v Deputy Child Support Registrar[3].

   [2] (1993) 114 FLR 325; 17 Fam LR 42; FLC 92-240

   [3] (2001) 27 Fam LR 641; [2001] FamCA 632

7. The thrust of the Applicant’s submission, in my view, is that the correct application of s.98B(1) is that an administrative assessment is in force so long as there is a child support liability in existence, even if that liability is payable in respect of a past period, and irrespective as to whether the liability has been paid or a terminating event has occurred.

8. The First Respondent concurred with the Applicant’s submissions, noting that the Applicant and the Respondent and had consented to the granting of leave and:

   The mother’s primary submission is that the consent of the parties for the granting of such leave should outweigh all other considerations of the court in determining whether leave ought to be granted.[4]

   [4] Submissions on Behalf of the First Respondent Mother at paragraph [24]

9. In my view, with respect, that submission is misconceived, because parties cannot, by consent, give the Court a jurisdiction that it does not otherwise have.

10. The Child Support Registrar maintained the position that once a terminating event has occurred, a child support assessment is no longer in force.

Conclusions

1. In my view, the Registrar is correct and the submissions in a document entitled Second Respondent’s Note succinctly summarises the position.

2. The Registrar cannot make a departure determination under s.98S of the Child Support (Assessment) Act unless a liable parent or a carer entitled to child support has made an application under s.98B (see s.98C).

3. A liable parent or a carer entitled to child support cannot make a departure application under s.98B unless, at the time of application, there is an administrative assessment in force in relation to the child.

4. An administrative assessment of child support is not in force in relation to a child once a child support terminating event has happened. Liability to pay child support is the critical feature of an administrative assessment and this liability ends upon the occurrence of a child support terminating event (s.31(2) of the Act).

5. Neither the Applicant father nor the First Respondent mother can now make an application to the Registrar under s.98B. This means that the Registrar cannot make a departure determination under s.98S, as the Registrar cannot reach the state of satisfaction required by s.98C(1)(a), which provides that:

   (1)  Subject to this Part, if:

   (a)an application is made to the Registrar under section 98B;

6. The fact that an application cannot be made to the Registrar under s.98B is a highly relevant factor for the Court to consider under s. 112(5), which provides:

   The court may have regard to any other relevant matter.

7. The inability of the Applicant and the First Respondent to make an application under s.98B and the Registrar’s consequent inability to make a determination under s.98S leads me to the view that the Court cannot be satisfied that the Registrar has the power I this case to make a determination under s.98S of the Act. Subsection 112(1) provides relevantly, at s.112(1)(a):

   If an application is made to a court under section 111, the court may grant leave for:

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

8. In my view, a grant of leave to the Registrar to make a determination under s.98S would be futile if the Registrar does not have the power to make a determination, which is clearly the case here.

9. It follows that the Application and the Response must be dismissed insofar as they seek leave to the Registrar to make a determination under s.98S. The Respondent seeks leave for a determination for a period going back to 10^th May 2006, which is earlier than seven years prior to the date the Response was filed, on 9^th February 2015. As there is no jurisdiction to make an order for that period, that application is incompetent and must be dismissed.

The Future Progress of the Application

1. What is left to the parties is to pursue their applications for leave under s.112 for the Court to make a determination under s.118 of the Act. Those applications may well require evidence from the parties and further submissions at a final hearing.

2. As there are no dates for final hearings left in my docket, the substantive Application will be transferred to the docket of Judge Henderson, the Case Management Judge as this Registry, with a view to fixing a date for a final hearing.     

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

Date: 17 May 2016