Boyle and Federal Magistrates Court of Australia

[2007] AATA 1572

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1572

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S 200700040

GENERAL ADMINISTRATIVE DIVISION		)
Re		DONALD IRVINE BOYLE

Applicant

And FEDERAL MAGISTRATES COURT OF AUSTRALIA

Respondent

DECISION

Tribunal Senior Member R W Dunne

Date23 July 2007

PlaceAdelaide

Decision The decision under review is set aside and in substitution it is decided that the filing fee payable by the applicant should be waived.

..............................................

R W DUNNE
  (Senior Member)

CATCHWORDS

FEDERAL MAGISTRATES COURT OF AUSTRALIA – respondent refused to waive filing fee – would payment of filing fee cause financial hardship – decision set aside

Federal Magistrates Regulations 2000 regs 4, 9(1) and (2), 13(2)

Re Conomy and Family Court of Australia [2000] AATA 536

REASONS FOR DECISION

23 July 2007   Senior Member R W Dunne   

1. This matter relates to an application made by the applicant (Donald Boyle) on 15 February 2007 for approval for the court filing fee payable under reg 4 of the Federal Magistrates Regulations 2000 (“Regulations”) to be waived on the basis of financial hardship. By notice dated 16 February 2007, the respondent refused the waiver application on the ground that the applicant had adequate income to meet the fee, after his reasonable day-to-day living expenses and liabilities had been taken into account, so as not to cause financial hardship.

2.      On 16 February 2007, a Deputy Registrar of the Family Court decided that the applicant was not entitled to waiver because, having regard to his fortnightly income and fortnightly expenses, he had an after-tax fortnightly income of $1,067.00,  which was $267.00 in excess of the maximum allowable.

3. On 22 February 2007 the applicant applied to this Tribunal, pursuant to reg 13(2) of the Regulations, for review of the respondent’s refusal decision.

4. At the hearing, the applicant appeared without representation. The respondent did not appear, but elected to rely on documents it had lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, which the Tribunal received into evidence as Exhibit A1.

5.      The Tribunal also received into evidence the applicant’s statement in support of his claims (Exhibit A2).

issues for the tribunal

6.      The issues for the Tribunal are:

(a) whether, having regard to the income, day-to-day living expenses, liabilities and assets of the applicant, payment of the court filing fee should be waived under reg 9(1) of the Regulations; and

(b) whether, under reg 9(2) of the Regulations, payment of the court filing fee would cause financial hardship to the applicant.

regulations

7. The following provisions of the Regulations are relevant to this matter:

“4        Fees

Schedule 1 sets out the fees payable, subject to these Regulations, for the filing of a document or an action of:

(a)      the Federal Magistrates Court; or

(b)      an officer of the Federal Magistrates Court; or

(c)      another person acting on behalf of the Federal Magistrates Court.

Note   Fees are subject to increase under regulation 14.

…

9        Waiver of fees

(1)A Registrar or an authorised officer, having regard to the income, day-to-day living expenses, liabilities and assets of a person liable to pay a fee, may waive payment of the fee.

(2)A Registrar or an authorised officer must not waive payment of a fee unless, in his or her opinion, payment of the fee would cause financial hardship to the person liable to pay it.

…

13       Review by Administrative Appeals Tribunal

…

(2)Application may be made to the Administrative Appeals Tribunal for review of the decision.

…”

background

8.      The applicant separated from his wife on 8 November 1994.  He had been discharged from hospital and did not return to the family home.  There had been no break-down of the marriage and he still maintained a close relationship with his wife.  They lived apart but continued to support one another and maintain a marriage-like relationship.  However, with the passing of time, that relationship had weakened.  The applicant formed another relationship and, when he told his wife about it on 22 November 2003, their marriage relationship came to an end.  The applicant said that he had procrastinated in applying for a divorce, but in early 2007, he determined to do so.  In the process, he applied for waiver of the court filing fee on the basis of financial hardship.  The Tribunal referred the applicant to his application for waiver and the attachments accompanying it (Exhibit A1, T3 and T4).  He confirmed the figures for income, assets, liabilities and expenses contained in the application.  He reiterated that he had resigned from the Commonwealth Public Service in November 2004 and, with his resignation payout, had bought his current home (subject to a mortgage) and a new car.  Since then, the remainder of his payout had been expended on small home improvements and miscellaneous expenses.  Nevertheless, he continued to receive a Commonwealth pension, which enabled him to obtain and service his home loan.

9.      The applicant’s evidence was that his income and expenses were roughly the same, so that he presently had little financial leeway.  He was an approved Homestay “family” by the Centre for Applied Linguistics at the University of South Australia, which meant that from time to time he would provide family accommodation for an overseas student.  Under this arrangement, he received a fee of $380 a fortnight but, with outgoings and expenses, he received a net amount of about $25-$30 per week.  He said that he did not have a Homestay student at the moment.  He was studying law (full-time) at the University of Adelaide and possessed an unfulfilled desire to complete his studies, become admitted and look forward to potential income.  Apart from his home loan, he had a personal loan with a credit union, which currently stood at about $3,300.00 and had been used for home improvements.  The loan had been obtained in mid-2005 and would be repaid in 2009.  He said that, financially, it was not possible for him to extend the loan and, when it was repaid in 2009, it would be necessary for him to obtain a further loan to enable him to undertake a legal practice course, once he completed his degree.  He said his current annual income was $38,000.00.  However, he had a HECS debt and would be receiving additional income this year from work associated with the Commonwealth Census, and would have to pay increased tax deductions to pay or reduce the amount of his HECS debt.

contentions of applicant

10.     It was the applicant’s contention that it was unreasonable for a citizen to have to borrow to seek a divorce.  He referred the Tribunal to the “Guidelines for Waiver of Court Fees” published by the Family Law Courts (Exhibit A1, T11) (“Waiver Guidelines”) and to the “Guidelines for Registrars” in determining applications for waiver of court fees on the basis of financial hardship (Exhibit A1, T6) (“Registrars’ Guidelines”).  He argued that, although he did not satisfy the Income Test in the Waiver Guidelines, he would suffer financial hardship if he was required to pay the filing fee.  He pointed to the fact that, in comparing his fortnightly income, he would have little (if any) left over to meet the cost of the court filing fee.  In these circumstances, he submitted that the Tribunal should waive payment of the fee.

consideration

11. Regulation 4 of the Regulations provides for the payment of filing fees in respect of certain proceedings. Regulation 9(1) provides that a Registrar may waive payment of a filing fee. Under reg 9(2), a Registrar must not waive payment of a filing fee unless payment of the fee would cause financial hardship to the person liable to pay it. Regulation 13(2) then provides that, where a Registrar refuses to waive a filing fee payment, review may be sought of that decision to this Tribunal. It is to be noted that similar provisions to those mentioned are contained in regs 11(1)(a), 11(7)(e) and 16A(1) of the Family Law Regulations 1984 (“FL Regulations”).

12. It is apparent from the documents before the Tribunal (in particular, the application for waiver of court fees itself at Exhibit A1, T3, page 9) that the application was sought by the applicant under reg 11(7)(e) of the FL Regulations. However, in his reasons for decision, Registrar McMahon properly considered the application for waiver under reg 9 of the Regulations.

13.     It is clear that the decision under review was made having regard to both the Waiver Guidelines and the Registrars’ Guidelines published by the Family Court and made available to potential applicants.  The Waiver Guidelines record that the Courts, in consultation with other agencies, have drawn up a three-part test to assist in assessing whether a fee should be waived.  If an applicant meets all three parts of the test, a waiver will usually be granted.  However, if all three parts of the test are not met, an applicant may still be eligible for waiver, based on financial hardship.  Within the body of the Waiver Guidelines are certain tables, which purport to test or determine an applicant’s eligibility for waiver of filing fees.  One of the tables relates to the Income Test and shows the maximum after-tax income that an applicant may receive each fortnight in order to satisfy the test.  For an applicant with no dependants, the maximum after-tax income allowable each fortnight is $800.00.

14. The relevance of consideration of an applicant’s income, day-to-day living expenses and liabilities and assets has its genesis in reg 9(1) of the Regulations and reg 11(7)(e) of the FL Regulations. However, the force of the Waiver Guidelines must not be ignored. As was said by Senior Member J Handley in Re Conomy and Family Court of Australia [2000] AATA 536 (at paragraphs 15-16), when dealing with the reg 11(7)(e) of the FL Regulations :

“15.  … I have assumed that the guidelines have been published by the respondent to ensure consistency of decision making. Such an approach is to be applauded so long as it does not cause adherence to a regime which disregards individual circumstances and causes the absence or interference with a properly exercised discretion required by a ‘registrar’ under Regulation 11(7)(e).

16. The ‘guidelines’ are not the Regulations of the Family Court and they have no force of law. In administrative decision making, the publication by departments and agencies of guidelines, policy manuals and other documents, designed to assist decision makers and promote consistency of decision making are useful tools but the rights of individual citizens and the lawful obligations of decision makers to those citizens should not be overlooked or ignored.”

15.     The applicant gave evidence that his only significant asset was his home (valued at $260,000.00), which was subject to a mortgage of $133,075.00.  He had other liabilities totalling $26,045.00.  As was outlined in paragraph 9 of these reasons, his fortnightly day-to-day living expenses was roughly equal to his fortnightly income.

16.     Although comment has already been made by the Tribunal on the force of the Waiver Guidelines (including the Registrars’ Guidelines) the Tribunal observes the following examples in the Registrars’ Guidelines that may warrant a waiver (paragraph 3.13), namely:

·where fortnightly expenses and liabilities exceed fortnightly income; and

·where the applicant is unable to proceed with an application if waiver is not granted.

17.     Having regard to his income, day-to-day living expenses, liabilities and assets, the Tribunal is satisfied that payment of the filing fee would cause the applicant financial hardship and should be waived. 

decision

18.     The decision under review is set aside and in substitution it is decided that the filing fee payable by the applicant should be waived.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne

Signed:         .....................................................................................
  Associate

Date of Hearing  29 May 2007
Date of Decision  23 July 2007
Advocate for the Applicant       In person
Counsel for the Respondent     N/A           
Solicitor for the Respondent     N/A