Butler v Child Support Registrar

Link copied
Case Copied 17 min read

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

  1. 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.

  2. He sought leave…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Butler v Child Support Registrar and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2022] FedCFamC2G 491
Decision Date

CaseChat Overview and Summary

The parties to the case were Butler and the Child Support Registrar. The nature of the dispute was a challenge to a Departure Prohibition Order (DPO) made by the Registrar, which prohibited Butler from leaving Australia. The court hearing this matter was the Federal Circuit Court of Australia. The legal issues the court was required to decide were whether Butler's challenge to the DPO was valid and if the court had jurisdiction to hear the appeal. The court found that Butler's challenge to the DPO was not in the proper form, and the correct procedure would have been to appeal to the Federal Court of Australia or the Federal Circuit Court of Australia under section 72Q of the Child Support (Registration and Collection) Act 1988. The court also found that the Federal Circuit Court did not have jurisdiction to hear the appeal as it should have been made to the Federal Court of Australia.

The court reasoned that the proper procedure for challenging a DPO is to appeal to the Federal Court of Australia or the Federal Circuit Court of Australia under section 72Q of the Act. The court found that Butler had not followed this procedure and instead attempted to challenge the DPO as a respondent to debt recovery proceedings, which was not the correct approach. The court also found that even if Butler's challenge could be characterised as an appeal, the proper course of action would have been to appeal to the Federal Court of Australia, not the Federal Circuit Court of Australia. The court noted that the Federal Circuit Court did not have jurisdiction to hear the appeal, and any appeal should have been made to the Federal Court of Australia. The court dismissed Butler's challenge to the DPO and found that the Registrar's decision was subject to a right of review to the Administrative Appeals Tribunal under section 72T of the Act.

The court did not make any final orders in this matter as it found that Butler's challenge to the DPO was not valid and the court did not have jurisdiction to hear the appeal. The court did, however, provide guidance on the proper procedure for challenging a DPO and the appropriate court to which an appeal should be made. The court also noted that Butler could apply directly to the Registrar for revocation of the DPO under section 72I of the Act, subject to a right of review to the Administrative Appeals Tribunal under section 72T of the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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.”

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.