Brock, R.E. v Deputy Child Support Registrar
[1995] FCA 414
•23 Jun 1995
CATCHWORDS
Administrative Law - acceptance by the Child Support Registrar of an application for administrative assessment of child support - application did not attach proof of paternity satisfying s.29(2) of the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act") - whether decision to accept the application was amenable to judicial review.
Statutory Interpretation - whether the Federal Court should exercise jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) in relation to decisions made under the Child Support Scheme - whether adequate provision for review within the meaning of s.10(2)(b)(ii) of the ADJR Act is provided by the Assessment Act and the Child Support (Registration and Collection) Act 1989 - whether discretion to dismiss the application should be exercised.
F.J. Bloemen Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 360
Colpitts v Australian Telecommunications (1986) 9 FCR 52 at 62-64.
Edelsten v Minister for Health (1993) 32 ALD 730
Deputy Federal Commissioner of Taxation v Richard Walter Pty Ltd [1995] ATC 4,067
Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829
Strictly Stainless Pty Ltd v Deputy Commissioner of Taxation (unreported, 5 November 1993)
Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 90 ALR 280
Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739
Child Support (Assessment) Act 1989 (Cth) - ss.26, 29, 30, 31(1)(d), 99(1), 106, 107 and 108.
Child Support (Registration and Collection) Act 1989 (Cth) - ss.24, 34, 80, 83, 87(1), 88 and 104(1).
Family Law Act 1975 (Cth) - ss.66X, 66ZA
ROGER EDWARD BROCK v DEPUTY CHILD SUPPORT REGISTRAR
No G96 of 1995
Davies J
23 June 1995
Sydney
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G 96 of 1995
)
GENERAL DIVISION )
BETWEEN: ROGER EDWARD BROCK
Applicant
AND: DEPUTY CHILD SUPPORT REGISTRAR
Respondent
Coram:Davies J.
Date: 23 June 1995
Place: Sydney
MINUTES OF ORDER
THE COURT ORDERS:
The application be dismissed with costs.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal
Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) No G 96 of 1995
)
GENERAL DIVISION )
BETWEEN: ROGER EDWARD BROCK
Applicant
AND: DEPUTY CHILD SUPPORT REGISTRAR
Respondent
Coram:Davies J.
Date: 23 June 1995
Place: Sydney
REASONS FOR JUDGMENT
The respondent, the Deputy Child Support Registrar, has moved for an order dismissing the principal application, which seeks orders of review with respect to four decisions.
The first decision is a decision of the respondent to accept an application for the assessment of child support pursuant to s.30 of the Child Support (Assessment) Act 1989 (Cth) ("the Assessment Act"). The second decision is a decision to refuse to remove the registration of the child support assessment pursuant to the Child Support (Registration and Collection) Act 1988 (Cth) ("the Registration Act"). The third decision is a decision to issue an enforcement summons returnable in the Family
Court of Australia for the payment of arrears accrued pursuant to a Child Support Assessment in accordance with s 113 of the Registration Act.
The fourth decision was resolved during the hearing of the motion. The decision concerned the refusal of the respondent to give reasons under s.13 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") for the second decision which I have mentioned. It seems that there was some confusion on the part of the respondent as to which was the decision in respect of which the applicant was seeking to obtain reasons. That appears to have now been clarified and the parties are agreed that reasons should be given with respect to the second decision. That will occur in due course.
The application is out of time insofar as the first decision is concerned. A letter which specified clearly that Miss Wilson's application for an assessment of child support had been accepted and which also specified the child support that Mr Brock was required to pay was received by Mr Brock on or about 6 May 1991. That letter satisfied the terms of s.11(3)(b)(iii) of the ADJR Act. The time for making an application to the Court therefore expired on the 28th day thereafter. The application must be dismissed unless an extension of time is granted.
The second decision was notified to Mr Brock's solicitors on 30 August 1994. Accordingly, the application would be out of time but for the fact that Mr Brock has sought reasons for the decision under s.13 of the ADJR Act and the respondent has agreed to supply those reasons. Accordingly, s.11(3)(b)(ii) may apply and the period
may still be running. I do not wish to express a concluded view on the point as arguments to the contrary can be put. However, my experience is that, in practice, it has been accepted that the entitlement to make an application under s.13 of the ADJR Act is not treated as limited by the periods set out in s.11 for the lodgment of an application to the Court and that, accordingly, the making of a request under s.13 of the ADJR Act outside the 28 day period specified in s.11(3)(b)(iii) and compliance with that request has been thought to extend the time otherwise allowable for the lodgment of the application, by reason of the operation of s.11(3)(b)(ii).
The third decision was, in my opinion, not a decision which is reviewable under the ADJR Act. It is sufficient for me to refer to my own decision in Strictly Stainless Pty Ltd v Deputy Commissioner of Taxation (unreported, 5 November 1993) in which I held that lodgment in the Supreme Court of New South Wales of a petition for the winding up of a company was not a "decision" which was reviewable under the ADJR Act. Rather, it was a mere procedural act which initiated a judicial proceeding. I said that it would only be in exceptional circumstances that an injunction would be granted under s.39B of the Judiciary Act 1903 (Cth) to prevent the institution of legal proceedings.
No order is sought in relation to the fourth decision.
Section 26 of the Assessment Act provides:-
"Application may be made to the Registrar for administrative assessment of child support for a child only if the application seeks payment of the child support from a person who is:
(a) a parent of the child; and
(b) a resident of Australia on the day on which the application is made."
Accordingly, the application, which is made to the Registrar, must seek payment of child support from a person who is a parent of the child.
Section 29 of the Assessment Act provides:-
"(1) Subject to subsection (2), in determining whether an application for administrative assessment of child support complies with sections 24, 25 and 26, the Registrar may act on the basis of the application and the documents accompanying the application, and is not required to conduct any inquiries or investigations into the matter.
(2) The Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
(a) that the person is or was a party to a marriage and the child was born to the person, or the other party to the marriage, during the marriage; or
(b) that the person's name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child; or
(c) that, whether before or after the commencement of this Act, an Australian Court or a court of prescribed overseas jurisdiction has found, or could reasonably be inferred to have found, that the person is the father or mother of the child, and the finding has not been altered, set aside or reversed; or
(d) that, whether before or after the commencement of this Act, the person has, under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, executed an instrument acknowledging that he is the father of the child, and the instrument has not been annulled or otherwise set aside; or
(e) that the child has been adopted by the person."
Section 30 of the Assessment Act provides:-
"(1) If the Registrar is satisfied that an application has been properly made for administrative assessment of child support for a child, the Registrar must accept the application.
(2) If the Registrar is not so satisfied, the Registrar may refuse to accept the application."
Section 29(2) uses the words "only if" which suggest that the Registrar may be satisfied that a person is a parent of the child only when he is satisfied as to one of the circumstances set out in paras (a) to (e). I tend to think that this is the proper interpretation of ss.29 and 30 and that the discretion conferred by s.30(2) by the use of the words "may refuse" merely empowers the Registrar not to refuse an application where he is not presently satisfied that any of the paragraphs (a) to (e) of s.29(2) have been satisfied but is seeking further information. For the purposes of the present application, but without deciding the point, I shall assume that that is the correct interpretation of ss.29 and 30.
Section 31(1) of the Assessment Act provides, inter alia:-
"(1) If the Registrar accepts an application for administrative assessment of child support for a child:
...
(b) the person from whom the application sought payment of child support for the child is a liable parent in relation to the child; ...
..."
Thus, if the Registrar accepts an application, then subject to the rights of appeal later provided by the Assessment Act, the person from whom the application sought payment of child support is deemed by the statute to be a liable parent in relation to the child.
Once the Registrar has accepted an application, there must be an administrative assessment of child support under Part 5 of the Assessment Act. I need not discuss the details of this.
If the Registrar accepts an application under the Assessment Act and makes an administrative assessment of child support, the liability may be registered in accordance with s.24 of the Registration Act. Under s.34 of the Assessment Act and under s.80 of the Registration Act, notice of the acceptance and of the registration must be given to the applicant for child support and the person liable to pay the child support. Under s.83 of the Registration Act, objections may be lodged. These will be considered under s.87(1) of the Registration Act. Section 88 of the Registration Act then provides:-
"(1) Subject to subsection (2), a person aggrieved by a decision under subsection 87(1) on an objection may appeal to a court having jurisdiction under this Act against the decision.
(2) An appeal against a decision under subsection 87(1) on an objection in relation to a registrable maintenance liability, being a decision falling within paragraph (e) of the definition of `appealable refusal decision' in subsection 4(1), may be instituted only by the payee of the liability.
(3) Subsection (1) has effect:
(a) subject to Chapter III of the Constitution; and
(b) notwithstanding section 9 of the Administrative Decisions (Judicial Review) Act 1977."
Provisions for relevant extensions of time are contained in ss.89 and 91 of the Registration Act and in O.31B r10 of the Rules of the Family Court.
Section 99(1) of the Assessment Act and s.104(1) of the Registration Act both provide:-
"Jurisdiction is conferred on the Family Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Act."
Section 106 of the Assessment Act provides:-
"(1) Where the Registrar refuses to accept an application for administrative assessment of child support for a child, the applicant may apply to a court having jurisdiction under this Act for a declaration that the applicant was entitled to administrative assessment of child support for the child payable by the person from whom the application sought payment of child support.
(2) The application must be made within the time prescribed by the Rules of Court or within such further time as is allowed under the Rules of Court.
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are the applicant and the person from whom the application sought payment of child support.
(4) If the court is satisfied:
(a) that the child was, under section 24, a child in relation to whom the application for administrative assessment of child support was entitled to b made; and
(b) that the applicant was, under section 25, a person entitled to make the application for the child; and
(c) that the person from whom the application sought payment of child support was, under section 26, a person from whom payment of child support was entitled to be sought for the child;
the court may grant the declaration.
(5) If the court grants the declaration, the Registrar is to be taken to have accepted the application for administrative assessment of child support for the child."
Section 107 of the Assessment Act provides:-
"(1) Where the Registrar accepts an application for administrative assessment of child support for a child, the person from whom the application sought payment of child support may apply to a court having jurisdiction under this Act for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person.
(2) The application must be made within the time prescribed by the Rules of Court or within such further time as is allowed under the Rules of Court.
(3) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding are the person from whom the application sought payment of child support and the applicant for administrative assessment of child support.
(4) If the court is satisfied:
(a) that the child was not, under section 24, a child in relation to whom the application for administrative assessment of child support was entitled to b made; and
(b) that the applicant was not, under section 25, a person entitled to make the application for the child; and
(c) that the person from whom the application sought payment of child support was not, under section 26, a person from whom payment of child support was entitled to be sought for the child;
the court may grant the declaration.
(5) If the court grants the declaration, the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar."
Section 108 of the Assessment Act provides:-
"When a decision of a court under this Division becomes final, the Registrar must immediately take such action as is necessary to give effect to the decision."
It follows from these provisions that a court having jurisdiction - and for our purposes the relevant court is the Family Court of Australia - has full power on the review of a refusal by the Registrar to accept an application or on a review of a decision by the Registrar to accept an application, to deal with the merits of the matter and to determine whether or not the person against whom the application was made is the parent of the child.
Nicholas Edward James Wilson was born on 20 January 1991 at St Leonards Royal North Shore Hospital. His mother, Margaret Isobel Wilson, was recorded on his birth certificate but the certificate did not indicate who was the father. The applicant, Mr R.E. Brock, disputes that he is the father of the child. He also says that there has been no finding of paternity made against him, and that the Registrar had no basis for making the assessment of child support that has now been registered.
On 16 January 1991, shortly before Nicholas Wilson was born, Margaret Wilson commenced proceedings for child maintenance in the Family Court of Australia. The application sought orders in respect of maintenance payments for Nicholas Wilson and Margaret Wilson. The application also sought an order for the payment of medical expenses in relation to the birth of the child. It did not, however, indicate the precise ground upon which that order was sought. The day after the child was born, Mr Brock filed an affidavit in reply and sought an order that a parentage testing procedure be carried out in relation to himself, Margaret Wilson and Nicholas Wilson. One of the procedures for parentage testing is DNA typing as prescribed by Regulation 21B of the Family Law Regulations.
On 25 March 1991 the proceedings came before a Deputy Registrar of the Family Court and the Court made orders to the effect that Mr Brock pay to Margaret Wilson:
(a) $4,000 within 7 days and an additional sum of $400 per week from 1 April 1991 to 3 May 1991; and
(b) medical expenses in respect of the birth that were not covered by Medicare or private insurance cover.
Section 66X of the Family Law Act 1975 (Cth) provides that:
"The father of a child who is not married to the mother of the child is, subject to this Division, liable to make a proper contribution towards:
(a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child;
(b) the mother's reasonable medical expenses in relation to the pregnancy and birth;
..."
Section 66ZA of the Family Law Act provides that:
"Where in proceedings under this Division in relation to the birth of a child:
(a) the court is of the opinion that the applicant is in immediate need of financial assistance; but
(b) it is not practicable in the circumstances to determine immediately what order (if any) should be made (whether because the applicant has not yet given birth to the child or otherwise);
the court may order the payment, pending the disposal of the proceedings, of such periodic or other amount as the court considers appropriate."
Although the orders made do not, on their face, indicate they were made under s.66ZA, I assume that the orders made were interlocutory only and did not purport to determine the parentage of the child.
On 15 March 1991, Genetic Technologies Corporation Pty Ltd wrote to Miss Wilson's solicitors in respect of "a Lifeprint DNA test" that had been conducted to determine the likelihood of Mr Brock's paternity of Nicholas Wilson. The report concluded that there was a 99.998% chance that Mr Brock was the father of the child.
On 16 April 1991, Miss Wilson lodged her application with the Child Support Agency and in it she named Mr Brock as the father of the child. She attached a copy of the results of the DNA test to the application as proof of her answer to question 16 of the application as to whether "the person from whom you want child support payments is the parent of these children". The form of application, on its front page, requested that there be attached to the application proof that the person from whom
child support payment was sought was the parent of the child. The form stated that proof may be by presented by any of the following means:-
"The child's birth certificate showing the name of this parent
OR
A statutory declaration by the father that he is the father of the child
...
OR
An adoption certificate which shows that the person adopted the child
OR
A document from a Court which proves that the person is the parent of the child"
In her answer to Question 16, as to the attached proof of paternity, Miss Wilson referred to "Results of D & A Testing".
It will be noted that the four matters set out on the front of the form of application conform with paragraphs (b) to (e) of s.29(2) of the Assessment Act. However, Miss Wilson's application did not satisfy any of those paragraphs.
Because Miss Wilson's application did not satisfy any of the paragraphs set out in s.29(2) of the Assessment Act, or did not do so on the face of the application, I accept that Mr Brock has a prima facie case that the Registrar ought not to have accepted the application and that, if an application under the ADJR Act was the appropriate remedy for rectifying the position, there would be a reasonable case that this Court would be likely to make an order setting aside the acceptance of the application. Moreover, if an application under the ADJR Act were the appropriate remedy, it would in my opinion be proper at this stage, notwithstanding the long lapse of time, to grant any extension of time that may be necessary to allow the matter to
be resolved. Mr Brock and Miss Wilson have been in dispute for a long time and it is proper that the issue between them be resolved by a Court.
However, s.31 of the Assessment Act provides that, if the Registrar accepts an application, then "(b) the person from whom the applications sought payment of child support for the child is a liable parent in relation to the child". The proper course for Mr Brock to have taken at the time, therefore, and the course for which the Assessment Act made provision, was to appeal under s.107 of the Assessment Act to the Family Court. Because Mr Brock did not take advantage of this course, difficulties have since arisen. Mr Brock has continued to dispute his liability but has opposed every action taken to determine it. The present application seeks an order restraining an alleged decision of the Registrar that payment of arrears be enforced by issuing an enforcement summons returnable in the Family Court. Earlier, Miss Wilson, who had not been able to appeal under s.106 of the Assessment Act as her application had been accepted, had sought a declaration from the Family Court that Mr Brock was the father of her son. That declaration was opposed by Mr Brock and, on 27 November 1992, after reserving his judgment, Coleman J held that the Family Court did not have jurisdiction to grant a bare declaration of paternity. He therefore refused the relief sought.
The Assessment Act and the Registration Act have gone a long way to express the intent of Parliament that, subject to review by the Family Court, the decision of the Registrar in accepting or refusing to accept an application for child support shall be final and binding. That appears from the express terms of s.31(1)(b). The Family
Court, under ss.106 and 107, has jurisdiction to deal with all matters of paternity and all other relevant matters as may be raised in relation to the refusal to accept or the acceptance of an application for administrative assessment of child support liability. Section 88 of the Registration Act confers jurisdiction on the Family Court to review a decision made in relation to the refusal to rectify an entry in the register. Section 88(3) extends the authority of the Family Court insofar as possible by specifically providing that the conferral of jurisdiction is made notwithstanding s.9 of the ADJR Act. The effect of this section is not only to confirm the power of the Family Court to deal with the merits of paternity and so on, but also to encompass within its jurisdiction the more limited areas which would otherwise be dealt with by a court exercising judicial review powers.
Parliament could not more clearly have expressed its intention that, in a case such as the present, the issues between Miss Wilson and Mr Brock should be resolved by the Family Court, the Court on which the Assessment Act and the Registration Act confer jurisdiction and the Court which is given an amplitude of powers to deal with the merits of the case.
The matter has some similarities with the provisions respecting reviews and appeals which appear in the Income Tax Assessment Act 1936 (Cth). Section 31(1)(b) of the Assessment Act does not use the word "conclusive" which appears in s.177(1) of the Income Tax Assessment Act. Nevertheless, s.31 operates to give a statutory effect to the decision of the Registrar in accepting the application. It is for this reason that s.32, which provides for the withdrawal of an application, limits its
provisions to the circumstance where the Registrar has not accepted or has refused to accept the application. As Mason & Wilson JJ said in F.J. Bloemen Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 360 at 376:-
"It does not necessarily follow from what we have said that the Act excludes the general jurisdiction of the Supreme Court. Section 177(1) specifically operates by compelling a court, for example the Supreme Court, in the exercise of its jurisdiction to treat a notice of assessment on its production as conclusive evidence that the assessment has been duly made and thereby foreclosing that issue. In theory s.177 leaves the Supreme Court with jurisdiction to decide whether an assessment has been duly made in a case in which an appropriate document is not produced.
However, the rights of review given to the taxpayer by Pt V are comprehensive. Quite evidently it was contemplated that the Commissioner would in every case take advantage of s.177(1) and foreclose the exercise of jurisdiction to decide whether an assessment has been duly made. The general tenor of the statutory provisions suggests that a taxpayer wishing to challenge a notice of assessment served upon him will be effectively confined to the Pt V procedures."
In more recent years, there have been cases where taxpayers have sought to rely upon judicial review in order to challenge taxation assessments. Because of the terms of s.177(1) of the Income Tax Assessment Act, it was held by the Full Court of the High Court of Australia in Deputy Federal Commissioner of Taxation v Richard Walter Pty Ltd [1995] 95 ATC 4,067 that the judicial review jurisdiction of this Court was not precluded by s.177(1) but that the challenge made in that case must fail or the review be refused.
Mr Brock has come to this Court presumably because he wishes to avoid the possibility of a finding of paternity, the ascertainment of paternity being a matter to which the Family Court would turn its attention if an appeal were lodged under s.107 of the Assessment Act or under s.88 of the Registration Act. Mr Brock seeks to put the case that the facts before the Registrar did not show that any of paras (a) to (e)
of s.29(2) of the Assessment Act was satisfied and that, accordingly, in accepting Miss Wilson's application, the Registrar acted ultra vires and his decision was void ab initio.
However, s.10(2)(b) of the ADJR Act provides:-
"Notwithstanding sub-section (1)-
...
(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason -
(i) that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or
(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.
Section 10(3) provides:
"In this section, `review' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order.
In my opinion, adequate provision is made by the Assessment Act and by the Registration Act under which the applicant is entitled to seek a review by the Court of the decisions of the Registrar. That review will encompass review on the merits as well as review on the ground of error of law sought to be litigated in this Court and is review in the sense contemplated by s.10(2)(b)(ii). See Colpitts v Australian Telecommunications (1986) 9 FCR 52 at 62-64. In Edelsten v Minister for Health (1993) 32 ALD 730, Northrop J said at 733-4:-
"The word `adequate' is a word in everyday use. It has well defined meanings and essentially means sufficient or suitable ... In this context, the adequate provision is to be read as adequate in the sense of suitable or sufficient provision for review."
Review by the Family Court is not only an available remedy but it is the appropriate remedy. In essence, the dispute between Miss Wilson and Mr Brock comes down to that of the paternity of Miss Wilson's child. The Family Court can determine that issue and has the power to set aside the Registrar's acceptance of the application and the assessment of child support which flowed therefrom. In my opinion, the Federal Court should not exercise its jurisdiction under the ADJR Act when Parliament has made it clear that appeals from decisions of the Registrar should be heard by the Family Court. Although the provisions of the Assessment Act and of the Registration Act do not exclude the jurisdiction of the Federal Court, this Court should exercise that jurisdiction in relation to matters arising under the Assessment Act and the Registration Act only in a most exceptional case. Analogous views were expressed in Swan Portland Cement Ltd v Comptroller-General of Customs (1989) 90 ALR 280 at 287; Du Pont (Australia) v Comptroller-General of Customs (1993) 30 ALD 829; Edelsten v Minister for Health cited above; Yarmirr v Australian Telecommunications Corporation (1990) 96 ALR 739 at 750.
Counsel did not suggest that there was any time limit which would preclude the Family Court from now dealing with the matter should Mr Brock seek to appeal to the Family Court against the decisions of the Registrar. The Family Court, like the Federal Court, has a general discretion to extend the time for the lodgment of applications to it. Having regard to the importance of the matter as between Miss Wilson and Mr Brock and to the fact that this Court in its discretion does not exercise its jurisdiction, I would expect that the Family Court would extend time, though that of course is a matter for the discretion of the Judge who comes to deal with the application.
For these reasons, I shall dismiss the application to this Court with costs.
I certify that this and the 16 preceding pages
are a true copy of the reasons for judgment herein of
the Honourable Justice Davies.
Associate:
Date: 23 June 1995
Counsel for the applicant: G. Roberts
Solicitors for the applicant: Gadens Ridgeway
Counsel for the respondent: G.T. Johnson
Solicitor for the respondent: Australian Government Solicitor
Date of hearing: 24 April 1995
Date of judgment: 23 June 1995
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