Butler v Child Support Registrar

[2008] FCA 1131

FEDERAL COURT OF AUSTRALIA

Butler v Child Support Registrar [2008] FCA 1131

Child Support (Assessment) Act 1989 (Cth) Pts 5, 6A
Privacy Act 1988 (Cth) s 14
Judiciary Act 1903 (Cth) s 78B

Hendy v Deputy Child Support Registrar (2001) 164 FLR 236

DAVID WILSON BUTLER v CHILD SUPPORT REGISTRAR

VID 767 of 2008

MARSHALL J
7 NOVEMBER 2008
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 767 of 2008

BETWEEN:	DAVID WILSON BUTLER Applicant
AND:	CHILD SUPPORT REGISTRAR Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	7 NOVEMBER 2008
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The application is dismissed with costs to be taxed in default of agreement.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 767 of 2008

BETWEEN:	DAVID WILSON BUTLER Applicant
AND:	CHILD SUPPORT REGISTRAR Respondent

JUDGE:	MARSHALL J
DATE:	7 NOVEMBER 2008
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. Mr Butler applies for an extension of time within which to file and serve a notice of appeal from a judgment of the Federal Magistrates Court.  An extension of time is required because Mr Butler sought to file his notice of appeal one day later than the time provided by the Rules of Court.

2. The proceeding before the Court below arose as a consequence of a change to Mr Butler’s child support assessment by the respondent Child Support Registrar in 2001. In early 2001, the respondent sought financial information from Mr Butler. On 23 March 2001 the respondent wrote to him setting out a possible change under consideration to the child support assessment payable by Mr Butler. The letter referred to a potential increase in the assessed amount to $7,827 from $260 per year. At the conclusion of the process under Pts 5 and 6A of the Child Support (Assessment) Act 1989 (Cth) (“the Act”), the respondent determined to increase Mr Butler’s child support assessment to $4,940 per year.

3. Mr Butler made several applications to challenge the respondent’s 2001 determination. He did not succeed.  The last of the challenges was the proceeding below in which he sought an order restraining the respondent from invading his privacy. The application included other claims for relief, being:

   ·a refund of child support payments;

   ·a return to his pre 2001 assessment rate;

   ·a return of information held by the respondent about Mr Butler;

   ·damages for pain and suffering caused by illegal action taken by the respondent.

4. Federal Magistrate Riethmuller rejected each claim for relief. His Honour noted the purpose of the Act as being one for the administrative assessment and enforcement of child support. The Federal Magistrate also noted that the Act provides a mathematical formula for assessment purposes and a process for departing from that formula in a case where an inadequate outcome results.

5. Under s 75 of the Act, the respondent is entitled to amend an administrative assessment by making such change as the respondent considers necessary to give effect to the Act. Under s 98K, the respondent is entitled, if special circumstances exist, to depart from the provisions of the Act relating to administrative assessment of child support in relation to a child and make a determination under Pt 6A.

6. Before his Honour, Mr Butler submitted that the respondent was not authorised under s 98K to initiate a change of assessment application, because of the absence of a specific section in the Act requiring that such a process be initiated. The Federal Magistrate rejected that submission. He held that the respondent is entitled to consider the level of child support in specific cases to decide whether or not to start an investigatory process to see whether s 98K may be utilised. His Honour observed that such was one of the purposes for the establishment of the respondent. The Federal Magistrate concluded that the Act authorised the respondent to carry out a change of assessment function commencing a process which may lead to a change of child support assessment.

7. I see no reason to doubt the correctness of his Honour’s view that the respondent is entitled to commence a process leading to a review of an administrative assessment. A central purpose of s 98K is to ensure that special circumstances may be taken into account in making assessments relevant to a child. The very heading of the section, “Registrar may initiate a determination under this Part” shows that Parliament intended that the respondent be empowered to commence the process which may lead to a determination of a new rate of assessment under Pt 6A. Subsequent sections – ss 98L, 98M, 98N, 98P, 98Q, 98R and 98S – all govern the steps which are required to be made or may be made as the process continues. The process may not necessarily lead to a determination as s 98R(a) shows.

8. Mr Butler also submitted that s 65 of the Act, dealing with how an assessment is to be made, prevents the obtaining of information from outside sources, such as banks, by the respondent. His Honour correctly rejected that submission. Section 65 permits the respondent to act on documents in the possession of the respondent but it specifically does not oblige the undertaking of inquiries or investigations. Nor does it oblige the giving of any information or the production of a document. There is nothing in that section which prohibits the respondent from obtaining information or documents which it requests. The section does not compel it to seek such information or documents but, if the respondent wishes, the respondent is entitled to do so. So much is clear when one reflects on the wording of the section which is:

   In making an administrative assessment, the Registrar may act on the basis of the documents and information in his or her possession, and is not required to conduct any inquiries or investigations into the matter or to require (whether under this Act or otherwise) the giving of any information or the production of any document.

   See now s 66D of the Act, which has replaced s 65.

9. The Federal Magistrate correctly stated the relevant effect of the section by saying at [27] of his reasons for judgment that, “the Registrar is not obliged to force the production of a document”. His Honour found at [34] that information obtained by the respondent about Mr Butler’s finances was obtained for a lawful purpose under the Act and was within principle 1 of the Privacy Principles referred to in s 14 of the Privacy Act 1988 (Cth). Principle 1 permits the collection of personal information for a lawful purpose directed to a function or activity of the collector. This principle is self evidently applicable to the current circumstances and no error can be discerned in his Honour’s approach to this issue.

10. Mr Butler further submitted before the Court below that the determination made by the respondent has no legal effect. He sought to support that submission by reference to amendments to the Act which were not in force at the time of the impugned determination. Mr Butler referred to s 35 of the Act which came into effect on 1 July 2008. That section provides:

    This Part applies in relation to the assessment of child support payable by a parent for a child, subject to:

    (a)any determination made by the Registrar under Part 6A (departure determinations); and

    (b)any order made by a court under Division 4 of Part 7 (departure orders); and

    (c)any provisions of a child support agreement that have effect, for the purposes of this Part, as if they were such an order made by consent.

11. I see no reason why the above provision makes any difference to the validity and effectiveness of the determination made by the respondent under Pt 6A. Parliament should not be assumed to have intended that such a determination be futile. The submission of Mr Butler in this regard lacks any merit. In addition it is directly contrary to a judgment of the Full Court of the Family Court of Australia in Hendy v Deputy Child Support Registrar (2001) 164 FLR 236 at [63] where a Full Court held that under the then s 35, the Registrar had the power to issue an administrative assessment under Pt 5 to give effect to a determination made under Pt 6A.

12. The matters canvassed above were the only issues subject to the judgment below. The proposed grounds of appeal do not raise any further separate legal ground for correction of any alleged error made by his Honour. Ground 1 of the proposed appeal raises the s 98K point. Ground 2 raises the s 35 point. The third ground refers to an alleged error of discretion. No issue of discretion arose; the primary judge applied the legislation to the submissions made to him.

13. The only other issue raised by the last two grounds of the proposed appeal is the possible unconstitutional standing of the Act. Mr Butler has not sought to raise the question of notices issuing to the Attorneys under s 78B of the Judiciary Act 1903 (Cth) in the appeal. In any event his challenge to the constitutional validity of the Act relates to the Act in a form it took after the determination challenged by him was made by the respondent. Like all other proposed grounds of appeal, these grounds lack merit.

14. Normally the Court would be reluctant to refuse to extend the time within which to appeal when the proposed appellant was only one day late.  However, in this matter it would be futile to extend time as the proposed appeal has no prospect of success.

15. The application is dismissed with costs to be taxed in default of agreement.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        19 November 2008

The Applicant appeared in person.
Solicitor for the Respondent:	Australian Government Solicitor
Counsel for the Respondent:	Ms B Tulloch

Date of Hearing:	7 November 2008
Date of Judgment:	7 November 2008