Border & Male

[2007] FamCA 147

FAMILY COURT OF AUSTRALIA

BORDER & MALE [2007] FamCA 147

CHILD SUPPORT – APPLICATION FOR LEAVE TO APPEAL decision of Federal Magistrate – Father contended that the effect of a declaration under Part 6A of the Child Support (Assessment) Act 1989 (Cth) was advisory only and gave the Registrar no power to seek the collection of monies payable – Father had previously failed in review of Registrar’s decision and been denied leave to appeal to Full Court – Father received letter from Child Support Agency warning of potential enforcement action but no such proceedings had yet been commenced – It had previously been determined that there were no grounds to set the assessment aside – The application was several years out of date and no attempt was made to seek leave to bring the application out of time – No rational basis for claiming that the assessment is somehow beyond power – The court ought not make declaratory orders in a vacuum – Application doomed to failure – Application for leave to appeal dismissed.

COSTS – Appeal against costs order – Court exercising power under the Child Support (Assessment) Act 1989 (Cth) has the power to order costs in the event proceedings are dismissed – Section 100 of the Child Support (Assessment) Act deems the proceedings to be brought under the Family Law Act 1975 and s117 of that Act applies – The Federal Magistrate concluded there were reasons to make a costs order – Whilst the mother could have sent a note saying she was not wanting to be part of the hearing, the Federal Magistrate concluded it was appropriate the mother be there – Appeal dismissed.

Child Support (Assessment) Act 1989 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)

Luton v Lessels (2002) 210 CLR 333
Bassingthwaite v Leane (1993) FLC 92-410

APPLICANT: MR BORDER

RESPONDENT: MS MALE

FILE NUMBER: MLM 345 of 2004

APPEAL NUMBER: SA 62 of 2006

DATE DELIVERED: 20 February 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Kay J

HEARING DATE: 20 February 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 18 September 2006

LOWER COURT MNC: [2006] FMCAfam 212

REPRESENTATION

COUNSEL FOR THE APPLICANT: In person

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT: Ms P.J. Treyvaud

SOLICITOR FOR THE RESPONDENT: MacGregor Solicitors

Orders

1. The application filed 11 October 2006 seeking leave to appeal the orders made by Hughes FM on 18 October 2006 is dismissed.

2. The applicant pay $3000 towards the respondent's costs of the application.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 62 of 2006
File Number:

MR BORDER

Applicant

And

MS MALE
Respondent

REASONS FOR JUDGMENT 

1. This is an application by the father of the child J born December 1994, seeking leave to appeal against orders made by Hughes FM on 18 September 2006 dismissing an application filed by the father on 28 November 2005 and ordering the father to pay the mother's costs in the sum of $2762.

Background

1. Prior to May 2001 the applicant was administratively assessed to pay child support in accordance with the formula set out in the Child Support (Assessment) Act 1989 (Cth). In May 2001, the Registrar amended the assessment pursuant to the provisions of Part 6A of the Child Support (Assessment) Act 1989 (Cth).

2. The father was aggrieved by the new assessment that called upon him to pay an increased amount of child support for a rather modest period and brought proceedings that came on before Watt J. He sought to set aside the amended assessment and challenged the effect of the assessment, arguing that the effect of a Part 6A declaration was to be advisory only and did not empower the Registrar to actually seek to collect any moneys dealt with by the change of assessment. Watt J concluded, contrary to the argument advanced by the applicant, that there was no basis for declaring the assessment a nullity or otherwise setting it aside, and the application was dismissed.

3. The applicant then sought leave to appeal. That application was dealt with by the Full Court on 28 January 2003, and leave to appeal was refused. The attempt to declare the Registrar's Part 6A assessment either null and void or to set it aside failed.

4. The father then brought an application to depart from or somehow review the decision made by the Child Support Registrar. He brought an application on 11 May 2004 under s 118 of the Child Support (Assessment) Act 1989 (Cth).  That application was heard and determined by Reithmuller FM on 3 September 2004 when the application was dismissed and the father was ordered to pay $4639 in costs. 

5. Apparently the father determined that he was not willing to comply with the assessment and his obligation to make payments under it, notwithstanding the failure of his litigation to date. When he received a letter from the Child Support Registrar dated 30 September 2005 reminding him that he owed by then $7594.68 in arrears of child support payments and a further $2271.24 in penalties and warning him that an enforcement summons would issue without further notice but inviting him to make contact to discuss the matter, his response was to bring an application in the Federal Magistrates Court at Melbourne. The relief he sought was that the assessment which resulted from the Part 6A determination be set aside and the assessment(s) in force at the time be confirmed.

6. This had a remarkably similarity to the application that was argued before Watt J. It was the application that was dealt with by Hughes FM in the judgment that she delivered on 18 September 2006.

7. After setting out the history of the proceedings to date, she then endeavoured,    as best that is was capable of being interpreted, to try to understand what it was that the applicant was arguing about.  She said that the applicant was very concerned that comments made by Kirby J in Luton v Lessels (2002) 210 CLR 333; (2002) HCA 13 had clearly demonstrated that there was no capacity for the Child Support Agency to enforce its orders and that in those circumstances it would be appropriate to declare the administrative assessment made by the Agency as somehow a nullity or set it aside.

8. This matter had been already dealt with by Watt J, by the Full Court and by Riethmuller FM; that is, the misinterpretation by the applicant of what he perceived was the effect of the portion of the judgment by Kirby J in Luton v Lessels (2002) 210 CLR 333 at 376. Hughes FM pointed out that in any event, at the stage when the proceedings were before her there was in fact no application for enforcement; there was merely a letter foreshadowing an application inviting the court to enforce the order by an independent exercise of judicial power. She said:

   I reject entirely the applicant's submission that the Child Support Registrar has no power to enforce the debt comprising of the arrears of child support and the associated penalties.

9. She then made reference to s 113 of the Child Support (Registration and Collection) Act 1989 (Cth) as providing the basis upon which the Registrar could enforce the debts due to it under the provisions of what was described loosely by the Federal Magistrate as the “Child Support Scheme”.  The description of the child support scheme is a loose term for describing the two major pieces of legislation that provide for the assessment of child support in Australia and for its enforcement, they being the Child Support (Assessment) Act and the Child Support (Registration and Collection) Act.

10. Hughes FM then turned to deal with an argument that was run by the applicant in his oral submissions to her, that because the amounts now being claimed by the Agency were different from the amounts in the original assessment - that is, by the accumulation of arrears - somehow they amounted to a fresh liability which would enable him to challenge it under s 110 of the Child Support (Assessment) Act.  She rejected that argument "as nonsense". 

11. She then turned to the issue of costs and determined that it was appropriate that the mother, who had been summonsed to the court although she indicated she did not want to partake in the proceedings, was entitled to some costs in the proceedings and made an order accordingly.

12. I have been provided by the applicant, who appears in person, with a written submission and proposed grounds of appeal.  I have invited him to address me on each of the grounds of appeal to determine whether or not there is an error of principle or a substantive injustice demonstrated by the way that the Federal Magistrate dealt with the matter. 

13. This is, as I have indicated, an application for leave to appeal, such leave being required by operation of the provisions of s 102 of the Child Support (Assessment) Act. 

14. The tests for leave to appeal are well settled. They require there to be an error of principle or substantive injustice demonstrated, although in child support cases the Full Court has indicated in Bassingthwaite v Leane (1993) FLC 92-410 and subsequent cases that a less restrictive approach may be necessary where the order sought to be appealed involves substantive rights or liabilities. However, that being said, even on a less restrictive approach I still need to be persuaded that there is some error in the manner that the Federal Magistrate dealt with the application, which in my view suffered from a number of terminal fatalities before it was even issued, the first of which was of course that the Court had no power to make declaratory orders in a vacuum.

15. It may be that in defence of an enforcement application brought by the Child Support Registrar an argument might be mounted challenging the validity of the assessment. However, simply on the strength of a letter threatening the potential of enforcement does not in my view grant a basis for asking for the assessment to be set aside. That is the first fatality. Secondly, the matter had already been decided by Watt J that there was no basis under s 110 of the Child Support (Assessment) Act to set this assessment aside. Thirdly, if there was an application validly under s 110, the rules of the Federal Magistrates Court, which I think are reflected in the rules of the Family Court, require that application to be brought within 28 days of the assessment. This application was being brought some four or five years out of date and no endeavour was made to seek leave to bring the application out of time.

16. Finally, on the face of it there does not appear to be any rationally advanced argument to support the proposition that the assessment that has issued has any features of irregularity about it or is in any way beyond any power. As I have indicated, this application was always doomed to failure.  There is nothing that is put to me about the manner in which the Federal Magistrate dealt with it that would indicate it would be appropriate for me to entertain an application for leave to appeal. 

17. On the costs issue there is some academic discussion as to whether leave to appeal is necessary in relation to a costs order. The argument in respect of the costs order is that somehow s 100 of the Child Support (Assessment) Act does not import with it powers of the court in child support proceedings to make a costs order. Section 100 of the Child Support (Assessment) Act, under which this application was allegedly brought, provides - insofar as it is relevant:

    (1)      The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a)) as if:

    (a) the proceedings were proceedings under Part VII of that Act; and

    (b)the proceedings were proceedings instituted under Part VII of that Act; and

    (c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and

    (d)a decree made in the proceedings were a decree made under Part VII of that Act; and

    (e)matters arising in the proceedings were matters arising under Part VII of that Act; and

    (f)        any other necessary changes were made.

    (2)      Without limiting subsection (1), Division 13A of Part VII (Consequences of failure to comply with orders, and other obligations, that affect children), Part XIII (Enforcement of decrees), and Part XIIIB (Contempt of court), of the Family Law Act 1975 apply to any decree made by a court under this Act as if the decree were a decree made by a court under Part VII of that Act.

    (3)      Where any difficulty arises in the application of subsection (1) or (2) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.

18. The Family Law Act 1975 (Cth) then provides in s 117 that in proceedings under the Family Law Act, the court may make orders for costs.  These child support proceedings, having been deemed to be proceedings under the Family Law Act, incorporate effectively the provisions of s 117 into the Child Support Assessment court based process. It is beyond argument to suggest that there is no power in the court exercising jurisdiction under the Child Support (Assessment) Act to make a costs order in the event that the proceedings are dismissed. 

19. The Federal Magistrate concluded that there were reasons for making an order, and whilst those reasons may not have been universally shared by other judicial officers, the task of demonstrating error against exercise of discretion in costs orders is a difficult road.  Nothing that was advanced in argument to me would suggest that it was an inappropriate exercise of power by the Federal Magistrate to make a costs order in these proceedings, although the mother who withdrew from the proceedings very early along could have perhaps achieved the same end by writing a letter to the court saying she was opposed to the application but did not want to be heard on it.  However, that was not the course that was adopted and the Federal Magistrate thought it was appropriate she be there and protected.

20. For these reasons I propose to dismiss the application for leave to appeal  filed on 28 November.

I certify that the preceding twenty one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kay

Associate: 

Date:  6 March 2007