Butler v Child Support Registrar
[2022] FedCFamC2G 491
Federal Circuit and Family Court of Australia
(DIVISION 2)
Butler v Child Support Registrar [2022] FedCFamC2G 491
File number(s): BRG 2 of 2022 Judgment of: JUDGE TONKIN Date of judgment: 23 June 2022 Catchwords: FAMILY LAW – CHILD SUPPORT- Application for leave to bring proceedings – circumstances insufficient to justify grant of leave – application refused
FAMILY LAW – CHILD SUPPORT – Application for revocation of Departure Prohibition Order – application to review previous child support assessments – application dismissed
Legislation: Child Support (Registration and Collection) Act 1988 Cases cited: Dixon v Child Support Registrar [2017] FCCA 1540
Hopkins & Shorley & Anor (SSAT Appeal) [2014] FCCA 158
Hopkins & Walker and Anor [2013] FamCA 616
Hunter & Child Support Registrar [2017] FamCAFC 259
Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186
Langmeil v Grange [2013] FamCAFC 31
Zabeneh & Zabeneh [1986] FamCA 18
Division: Division 2 Family Law Number of paragraphs: 30 Date of last submission/s: 29 March 2022 Date of hearing: In Chambers Place: Brisbane Counsel for the Applicant: Applicant filling written submissions on his own behalf Solicitor for the First Respondent: Mills Oakley ORDERS
BRG 2 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR BUTLER
Applicant
AND: CHILD SUPPORT REGISTRAR
First Respondent
MS HALL
Second Respondent
order made by:
JUDGE TONKIN
DATE OF ORDER:
23 June 2022
THE COURT ORDERS THAT:
1.The application for leave is refused.
2.The application filed on 5 January 2022 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Butler v Child Support Registrar is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE TONKIN
The applicant in this matter filed a Notice of Appeal (Child Support) on 5 January 2022. In the Notice of Appeal he seeks the following orders:
(a)The Prohibition Order made on 24 August 2017 be revoked;
(b)The Part 6A Review assessment for the period 17 July 2008 to 31 December 2009 be revoked;
(c)The Court varied assessments for the periods 1 July 2008 to 31 December 2009 be registered by the Child Support Registrar; and
(d)A finding that the father has made overpayments of $4383.61.
He sought leave to file his application.
In his written submissions he stated “I give notice to the court that the undertakings made on 3 June 2004 and 4 June 2004 are retracted/withdrawn and no longer apply.”
In addition to this current application, the applicant has filed an initiating application (Family Law) on 16 July 2019 and an appeal filed on 23 March 2020.
The second respondent was not heard with respect to the application. The Child Support Registrar sought an order for summary dismissal.
History of proceedings
The applicant and second respondent share two children Ms C born in 1993 (now 29 years old) and Mr D born in 1995 (now 27 years old). The administrative assessment of child support in respect of Ms C ended in 2011 and Mr D in 2013. In his decision Justice Tree in Hopkins & Walker and Anor [2013] FamCA 616 referred to the history of the proceedings and observed in Hopkins (supra) at [9] that the applicant commenced proceedings some time prior to a trial conducted by Jordan J in July and August 2000 (22 years ago). Litigation has continued unabated since that time.
Application for leave
The applicant seeks leave to commence proceedings. In his written submissions the applicant stated that he “retracts or withdraws the undertaken and they no longer apply.” He filed an initiating application in the Family Court on 16 July 2019 seeking to be released from undertakings given in 2004. That application was heard by Justice Baumann on 3 February 2021 and judgment reserved. The applicant did not draw to the attention of this Court the fact that the decision to set aside the 2004 undertakings was currently before Justice Baumann.
On 23 March 2020 the applicant filed a Notice of Appeal (Child Support) seeking leave to appeal a decision of the Administrative Appeals Tribunal. That matter has been adjourned pending judgment in the 2019 proceedings being delivered.
In so far as the applicant’s written submissions at [13] to [23] seek to “withdraw undertakings” given by him in 2004 that application is dismissed on the basis that the application is an abuse of the Court’s process. That matter has been agitated before Baumann J and judgment is pending.
Departure prohibition order
The applicant seeks leave in relation to his application that the Departure Prohibition Order (“DPO”) be revoked. The Child Support Registrar issued a Departure Prohibition Order on 24 August 2017 advising the applicant that he could make an application to have the Order revoked by providing reasons or in the alternative he could lodge an appeal. No evidence was adduced by the applicant that he made any application to the Registrar for revocation of the DPO as he was entitled to do. Nor did the applicant identify any decision made by the Registrar or a Tribunal member that demonstrated a refusal to revoke the DPO nor point to any error or previous decision that would warrant review.
The grounds asserted by the applicant in his written submissions at [24] to [31] for revocation of the DPO include: “since August 2021 I have ever (sic) been unemployed or on casual work with limited income.” Further he asserted
It is not my responsibility or role to do the CSA’s (Registrar’s) job for them. I am not paid to have to know the relevant Acts. That is what the CSA are paid for.
It is their responsibility to know the Acts use the correct method of assessment for the circumstances that exist at that time and to get it correct the first time.
It is not their right to manipulate abuse and bastardise the Acts by cheery (sic) picking which section of the Acts they want to use to reach the decision they want to make.
None of those grounds raise a proper basis for review.
Relevant legislation
Section 72I of the Child Support (Registration and Collection) Act 1988 provides as follows:
Revocation and variation of departure prohibition orders
(1) The Registrar must revoke a departure prohibition order in respect of a person if:
(a) the person no longer has a child support liability or carer liability; or
(b) the person has a child support liability or carer liability, but arrangements satisfactory to the Registrar have been made for the liability to be wholly discharged; or
(c) the person has a child support liability or carer liability, but the Registrar is satisfied that the liability is completely irrecoverable.
(2) However, if the Registrar considers that the person may later become subject to a child support liability or carer liability in respect of, or arising out of, matters that have occurred, the Registrar must not revoke a departure prohibition order under
subsection (1) unless the Registrar is satisfied:(a) that the liability will be wholly discharged; or
(b) that arrangements satisfactory to the Registrar will be made for the liability to be wholly discharged; or
(c) that the liability will be completely irrecoverable.
(3) The Registrar may also, at the Registrar's discretion, revoke or vary a departure prohibition order in respect of a person if the Registrar considers it desirable to do so.
(4) The Registrar may revoke or vary a departure prohibition order under
subsection (1) or (3):(a) on application by the person in the approved form; or
(b) on the Registrar's own motion.
Section 72T of the Child Support (Registration and Collection) Act 1988 provides as follows:
Applications for review of certain decisions
(1) Applications may be made to the Administrative Appeals Tribunal for review of a decision of the Registrar under section 72I, 72L or 72M.
(2) In this section:
"decision" has the same meaning as in the Administrative Appeals Tribunal Act 1975.
Section 72Q of Child Support (Registration and Collection) Act 1988 provides as follows:
Appeals to courts against making of departure prohibition orders
(1) A person aggrieved by the making of a departure prohibition order may appeal to the Federal Court of Australia or the Federal Circuit and Family Court of Australia (Division 2) against the making of the order.
(2) This section has effect:
(a) subject to Chapter III of the Constitution; and
(b) despite anything contained in section 9 of the Administrative Decisions (Judicial Review) Act 1977 .
The decision in Hunter & Child Support Registrar [2017] FamCAFC 259 (30 November 2017) is instructive when an applicant seeks an order to revoke a Departure Prohibition Order. The Full Court said:
“[126] It is clear that the means of challenge to the making of a DPO is by an appeal to the Federal Court of Australia or the Federal Circuit Court of Australia. If such an appeal is made to the Federal Circuit Court, and an appeal is sought to be made from the judgment of that court, then the appeal lies to the Federal Court of Australia, and not to this Court. The appellate jurisdiction of the Federal Court of Australia as expressed in s 24 of the Federal Court of Australia Act 1976 (Cth) includes, in subsection (e):
(e) Appeals from judgments of the Federal Circuit Court exercising jurisdiction under s 72Q of the Child Support (Registration and Collection) Act 1988.
[127] It is patently clear that the sole means provided by the statute to Mr Hunter to challenge the DPO on appeal was via an appeal pursuant to s 72Q(1) of the Collection Act. It is equally clear, given the administrative character of the subject matter of such an appeal, that in turn appeals from either a Federal Circuit Court judgment or a single judge of the Federal Court (as the case may be) on such an appeal is exclusively within the appellate jurisdiction of the Federal Court of Australia.
[128] However, following its making, Mr Hunter never sought to challenge the DPO made by the Registrar on 20 February 2015 via a properly constituted appeal pursuant to s 72Q(1). What Mr Hunter sought to do in the proceedings below was to attempt, it would seem impermissibly, to incorporate in his response to the Registrar’s debt recovery proceedings challenges directed to the making of the DPO but not in the form of properly constituted appeal.
[129] It would seem that the primary judge was correct to dismiss what was a misconceived and impermissible attempt by Mr Hunter to mount challenges to the DPO, not via an appeal pursuant to s 72Q(1), but as a respondent to debt recovery proceedings pursuant to s 113 of the Collection Act. We find no merit in Grounds 12 and 13 which are directed to the DPO. We note that even if, contrary to our view, Mr Hunter’s response in the debt recovery proceedings, to the extent it was directed to the DPO, could be characterised as an appeal, then as counsel for the respondent contended, correctly in our view, Mr Hunter’s attempt to appeal that decision to this Court is misconceived.
[130] Moreover, at all material times, it remained open to Mr Hunter to apply directly to the Registrar for revocation of the DPO pursuant to s 72I of the Collection Act. The Registrar’s decision is subject to a right of review to the Administrative Appeals Tribunal under s 72T of the Collection Act.”
The application for leave to revoke the Departure Prohibition Order is misconceived. Leave is refused and the application dismissed.
With respect to the remaining matters the Child Support Registrar seeks an order that those matters be summarily dismissed. He contends that the applicant seeks to re-litigate those matters.
In Hopkins & Walker and Anor [2013] FamCA 616 (1 May 2013) Tree J considered the applicant’s application for leave to bring proceedings and an application to amend to seek leave for a departure order. That application was refused the Court determining that the application had no reasonable prospects of success.
His Honour observed at [1]:
[1] Before me are a number of matters requiring determination. Firstly there is an Amended Initiating Application filed by the applicant on 21 September 2012 in which he seeks a variety of orders which might best be described as declarations in relation to the conduct of the respondent Ms Walker (“the mother”) in relation to earlier orders of this Court. Also in that application he seeks an order revoking all previous reviews conducted by the Child Support Agency (“CSA”) under Part 6A of the Child Support Assessment Act 1989 (“the Act”) and an order that the CSA be restrained from collection and enforcement of any CSA debt…
Following a review of the history of the proceedings and an analysis of the undertakings given by the applicant in 2004 Tree J said in Hopkins (supra) as follows:
[39] By “minutes of order sort (sic)” filed 31 January 2013, the father identified 18 orders that he asked this Court to make. It is unnecessary to set them out here. Many of them are remarkable. For instance, by proposed order 13, he sought an order that the mother pay his costs of the 2004 trial before Warnick J. He seeks a variety of findings including “that the mother has no willingness to promote and encourage a relationship between the children and their father now or in the past.” He also seeks findings that the mother has abused the court process, has knowingly perjured herself, and seeks a finding that she does not suffer from post - traumatic stress disorder.
[40] Equally remarkably, he seeks orders in relation to child support, including most remarkably that “the CSA court orders made in 2005 be revoked, varied or permanently stayed.”
[41] Virtually all, if not entirely all, of these orders have no prospect of being made. In a very real sense, the applicant father seeks to re-litigate issues which have been determined for many years, including the 2004 trial before Warnick J. The orders sought smack of harassment and an attempt to undermine and perhaps even intimidate the mother. There is nothing in them which could possibly warrant their commencement. Moreover, I cannot identify any aspect of them which would be of any benefit to either of the parties’ children – indeed to the contrary, my view is that any further litigation between these parties is contrary to the children’s interests. It therefore follows that there should not be a grant of leave to commence either the Amended Initiating Application filed 21 September 2012, or the Application seeking that the mother be punished for contempt filed 19 June 2012.”
In Hopkins & Walker and Anor [2013] FamCA 616 (1 May 2013) Tree J having properly considered the application refused leave and dismissed the application the Court determining that the application had no reasonable prospects of success.
With respect to the grounds relied on by the applicant that leave should be granted in his written submissions the applicant at [32] to [127] argued that “the assessment method” presumably under the child support legislation was “incorrect and inappropriate.” He argued that the child support legislation itself was flawed. He complained that the Registrar gave the Court false and misleading information. No new information was advanced to enable the Court to consider whether the Part 6A assessment for the period 1 June 2008 to 31 December 2009 should “be revoked.” In any event if that be an application for a departure from a child support assessment section 111 (1) of the Child Support (Assessment) Act 1989 provides that a liable parent may apply to a court having jurisdiction under the Act for leave for (a) the Registrar to make a determination under section 98S or the court to make an order under section 118 in respect of a day in a child support period being a day that is more than 18 months and less than 7 years earlier than the day on which the application under this section was made. The period sought to be reviewed is a period some 12 years ago.
In Hunter Valley Developments Pty Ltd & Ors v The Hon Barry Cohen, Minister for Home Affairs and Environment [1984] FCA 186, (1984) 3 FCR 344; 58 ALR 305; 7 ALD 315 Wilcox J when dealing with an application for leave to extend time discussed the applicable principles at pp.11 – 14 as follows:
(a) Prima facie, proceedings commenced outside the prescribed period will not be entertained. An extension of time will be granted, however, if it is proper to do so.
(b) It is relevant whether the appellant rested on his rights or took action to make the decision-maker aware that the decision was being contested.
(c) Any prejudice to the Respondent that would be caused by granting an extension of time is relevant.
(d) The merits of the appeal are relevant.
(e) Fairness of granting the extension of time as between the applicant and other persons in a like position is relevant and further that it must be fair and equitable in the circumstances.
In Dixon v Child Support Registrar [2017] FCCA 1540 at [14] Judge Cassidy said:
[14] In Hamden v Secretary, Department of Human Services [2013] FCA 3 Besanko J considered what is necessary to be successful in an application for an extension of time and to file an application for review under the ADJR Act:
[35] The factors the Court takes into consideration in deciding whether to extend the time limit under s 11 of the ADJR Act are well established. Relevant to this case I think they are as follows:
1. The length of the delay;
2. The explanation for the delay;
3. The prejudice to the applicant if an extension of time is not granted;
4. The prejudice to the respondent and any third parties if an extension of time is granted;
5. The nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and
6. The merits of the substantive application.
[15] At paragraph 36 of that decision the Judge records:
[36] This Court has said in the context of the time limit under the Federal Court Rules 1979 (Cth) O 52 r 15(2)) that something very persuasive will be required to justify a grant of an extension of time after, for example, a year: Jess v Scott (1986) 12 FCR 187 at 195. McHugh J made a similar observation in the context of the High Court’s jurisdiction to issue prerogative writs: Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474 [16]. It is proper to take into account the merits of an applicant’s substantive application in considering whether to extend time, and the Court will not grant an extension of time where an applicant has no arguable case for relief: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at 474 [17]; WAJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 150 at [18] per Moore J.
The affidavits relied on by the applicant filed on 15 July 2019, 5 January 2022 and 21 January 2022 are devoid of any circumstance that would demonstrate any foundation upon which the Court would conclude that the application has reasonable prospects of success.
In Dixon v Child Support Registrar [2017] FCCA 1540 at [20] to [22] and [32] to 34 Cassidy J heard an application for judicial review and found that “almost every decision made by the Child Support Registrar or his offices dating back to 1995 including seeking review of child support assessments for the periods from 1 July 2004 to 13 November 2013 and the issue of the second respondent’s purported debt was appealed.” Her Honour refused to grant leave and found the merits of the substantive application lacking in merit. [24]
Conclusion
I am satisfied that the application to review previous child support assessments inter alia appears to be an abuse of process given that it seeks to re-litigate previous matters to serve a collateral purpose of perpetuating litigation. As noted by Tree J at [41] some 5 years ago “the orders sought smack of harassment and an attempt to undermine and perhaps even intimidate the mother.”
Judge Coates in Hopkins & Shorley & Anor (SSAT Appeal) [2014] FCCA 158 (17 February 2014) dealt with an appeal by the applicant against a decision of the SSAT dismissing his application. His Honour considered the criteria for making an application for leave and in the applicant’s case whether the undertaking given was relevant to leave being granted. He said:
[11] An undertaking is a formal promise to the court in relation to acting or refraining to act in a particular manner and pursuant to r.16.06 of the Federal Circuit Court Rules 2001, undertakings have the same force and effect as an order of the Court.
[12] The binding nature of the appellant’s undertakings can be understood because the Federal Circuit Court of Australia exercises concurrent jurisdiction in this matter with the Family Court of Australia. There would be no utility in the undertakings given by the appellant to the Family Court of Australia otherwise, as he could just go forum shopping to defeat his promise.
[13] …
[14] There must be some contextual background before the court or within the court’s knowledge as to why the undertakings were required, see S & M Motor Repairs Pty Ltd v Caltex Oil (Australia) Pty Ltd [1988] 12 NSWLR 358.
He ultimately dismissed the applicant’s appeal.
In Langmeil v Grange [2013] FamCAFC 31 the Full Court determined that leave would not be granted unless an applicant satisfied the Court that his application had reasonable prospects of success. Further in Zabeneh & Zabeneh [1986] FamCA 18 a matter where an order was made against the husband restraining him from bringing further applications without leave of the Court the Full Court said at [35]:
[35] The reason why a party is restrained from instituting proceedings in a case like this, is to prevent multifarious overlapping applications between the parties, which amount in essence to a harassment of the other party, and an abuse of the process of the Court, and which involve enormous expense for both the parties and the legal aid office. But, when one comes to consider whether leave should be granted to institute proceedings, particularly in family law matters, one has at some point to consider, after a certain lapse of time, whether it is reasonable to reconsider the issues.
For leave to be granted the applicant is required to establish that his application has reasonable prospects of success. In doing so the Court would need to consider the history of the proceedings and the basis upon which undertakings (which currently exist) were given. I reiterate that the decision regarding whether the undertakings given should be set aside was agitated before Justice Baumann and judgment reserved. The applicant would need to establish all relevant facts upon which he relied in support of his application, whether the grant of leave would be just to all parties and/or whether either party would suffer hardship if leave were granted, the merits of the application and whether the applicant is bringing the application bona fide or whether the application represents an abuse of process. None of those matters have been addressed by the applicant. I am satisfied the applicant has failed to establish any reasonable prospects of success. Leave is refused and the application dismissed.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Tonkin. Associate:
Dated: 23 June 2022
12
0