Caffyn & Caffyn
[2021] FedCFamC1F 68
•22 September 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)Caffyn & Caffyn [2021] FedCFamC1F 68
File number(s): SYC 454 of 2021
PAC 3892 of 2015Judgment of: HARPER J Date of judgment: 22 September 2021 Catchwords: FAMILY LAW – CHILD SUPPORT – Application for departure – Where father seeks discharge of a final departure order – Where mother seeks enforcement of a departure order – In circumstances where both parties were self-represented – Where departure order was made by consent – Departure order for equal payment of private school fees expressed to be made under s 117 of the Child Support (Assessment) Act – Where there are two sets of proceedings – Where parties have engaged extensively with the Child Support Agency and their review processes –Where there is an outstanding appeal to the Administrative Appeals Tribunal – Court proceedings regarding child support assessments must be exception not the rule – Where it is not in the parties’ interests for the Court to consider making a departure order – Nature of a departure order for payment of school fees considered – Divisions 4 and 5 of the Child Support (Assessment) Act considered – Whether Court order was a departure order at all – Liability to pay school fees under Court order is separate to liability arising from an administrative assessment by the Child Support Agency – Father’s application dismissed – Order for enforcement made
FAMILY LAW – PARENTING – Application for variation of final parenting orders made by consent – In circumstances where both parties were self-represented – Where no submissions were made in respect of Rice & Asplund – Parenting issue not determined on an interim basis
FAMILY LAW – EVIDENCE – Evidence Act 1995 – Definition of an “Australian court” – Status of the Child Support Agency – Where the mother seeks to admit decisions of the Child Support Agency as evidence – Where the nature of the Child Support Agency is less adversarial – Where the Court may receive evidence of a public document – Definition of a “public document” – Definition of “an Australian proceeding” – Registrar of the Child Support Agency held to meet the definition of an Australian court – Assessments by the Registrar of the Child Support Agency held to meet the definition of a proceeding – Evidence admissible for a limited purpose.
Legislation: Bankruptcy Act 1966 (Cth) s 81
Child Support (Assessment) Act 1989 ss 29, 66D, 79, 98H, 114(3), 116(1), 117, 124, 129, 141(1)
Child Support (Registration and Collection) Act 1988 ss 4, 10, 17, 17A, 18, 18A, 19, 23, 111B, 113, 113A, 117
Corporations Act 2001 (Cth) s 596B
Evidence Act1995 (Cth) ss 157, 91(1),
Family Law Act 1975 (Cth) s 69ZT(1), 69ZM, 80
Federal Circuit and Family Court of Australia Act2021 (Cth) s 37
Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act2021 (Cth) s 55
Family Law Rules 2004 (Cth)
Family Law Repeal Rules 2021, Schedule 1
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 1.05, 1.06, 10.10, 10.11, 11.01, 11.04, 11.07, 20.07(b)
Cases cited: Ainsworth v Burden [2005] NSWCA 174
Babbit & Babbit (2011) 46 Fam LR 77; [2011] FamCAFC 151
Cleaves & Cleaves [2021] FamCA 571
Daniels & Bell [2007] FLC 93-315; [2007] FamCA 152
Daunt v Daunt [2015] VSCA 58
Defrey & Radnor [2021] FamCAFC 67
Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 555; (1997) 150 ALR 397; [1997] FCA 1413
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V (2021) 389 ALR 612; (2021) 159 IPR 58; [2021] FCAFC 77
Galloway & Steele [2021] FamCA 508
Gerard Cassegrain & Co Pty Limited v Cassegrain [2011] NSWSC 1156
Gilmour and Gilmour (1994) 18 FamLR 646; (1995) FLC 92-591; [1994] FamCA 170
Gotch v Gotch [2009] FamCAFC 3
Griffin v Pantzer (2004) 137 FCR 209; (2004) 207 ALR 169; [2004] FCAFC 113
Gyselman & Gyselman (1992) FLC 92-279; [1991] FamCA 93
Harvey v Phillips & Anor (1956) 95 CLR 235; (1956) 30 ALJR 140; (1956) SR (NSW) 223; (1956) 73 WN (NSW) 319
I Limited & Chester and Ors (2010) 44 Fam LR 585; [2010] FLC 93-456; [2010] FamCAFC 251
Jacobova & Stein [2016] FamCA 825
Lesley & Lesley [2015] FamCA 894
Marsden & Winch (2009) 42 Fam LR 1; [2009] FamCAFC 152
Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228; [2017] NSWCA 93
Re HIH Insurance Ltd (in liq) [2015] NSWSC 790
Re Interchase Corporation Ltd (1996) 68 FCR 481
Rice & Asplund (1979) FLC 90-725; 6 Fam LR 570; [1978] FamCA 84
Saberton & Saberton [2013] FamCAFC 89
Sathra & Sathra [2013] FamCAFC 142
Secretary, Commonwealth Attorney General's Department & Bashir [2021] FamCAFC 137
Seymour & Seymour [2011] FamCAFC 97
Suiter & Suiter [2016] FamCAFC 72
Warwick & Cutler [2016] FamCA 934
Yewen & Child Support Registrar (2014) 290 FLR 366; [2014] FCCA 2399
Number of paragraphs: 123 Date of hearing: 21 July 2021 Place: Sydney Solicitor for the Applicant: Mr Caffyn (in person) Solicitor for the Respondent: Ms Caffyn (in person) ORDERS
SYC 454 of 2021
PAC 3892 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR CAFFYN
Applicant
AND: MS CAFFYN
Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
22 SEPTEMBER 2021
THE COURT ORDERS THAT:
1.The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) be dispensed with to the extent necessary to enable the operation of these orders.
2.Pursuant to r 11.07(a), it is declared that the father owes the Respondent Mother (“the mother”) the amount of $28,016, pursuant to Order 18 made on 24 April 2018 in proceedings PAC3892/2015.
3.Pursuant to r 11.07(b), the total amount owing, declared in Order 3, must be paid to the mother.
4.The matter be referred to a Senior Judicial Registrar or Judicial Registrar to determine, pursuant to Part 11.1 of the Rules, the issues of the time by which the father shall make payment of the amount declared to be owing in Order 3, and whether such payment shall be made by instalments.
5.The Application in a Case filed by the mother on 5 May 2021 be otherwise dismissed.
6.In respect of the specific claims for relief made by the father in his Amended Initiating Application filed on 21 June 2021 in proceedings SYC454/2021, specifically final Order 1 in respect of Order 18 dated 24 April 2018 in proceedings PAC3892/2015, and final Order 6:
(a)pursuant to rr 1.06 and 10.10 such claims be determined as separate issues; and
(b)pursuant to r 10.11, such claims be dismissed.
7.The balance of proceedings SYC454/2021 be listed before the appropriate Registrar for further Case Management, in accordance with the Rules and the Central Practice Direction.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Caffyn & Caffyn has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HARPER J
INTRODUCTION
These proceedings came before me in a judicial duty list. Exactly why that happened is not clear.
Both parties were self-represented. This did not assist in clarifying what applications were listed before me.
In summary, however, the Applicant Father (“the father”) seeks the discharge of a child support departure order made by consent on a final basis in April 2018. This order makes provision for the payment of school fees for the parties’ children. The Respondent Mother (“the mother”), on the other hand, seeks enforcement of this order. The father also seeks orders varying the final parenting orders.
The unfortunate manner in which the applications ended up before me is important. At the hearing, the parties were unable to explain clearly the nature of their applications. Both expressed a sense of grievance and frustration at each other and the processes they were engaged in. The hearing was treated as an interim hearing, without cross-examination, but since the parties were self-represented, it cannot be determined how useful cross-examination might have been. The Court was left in the positon of untangling what applications for relief were appropriate for determination as a referral from a duty list, and furthermore, in the truncated context of an interim hearing.
As I explain in the course of these reasons, the issues were actually quite complicated. It took half a day of court time to understand what the parties were seeking and why. Also, as explained later, there are two sets of proceedings which overlap, and some of the relief sought cannot be dealt with at an interim hearing. Some of the issues, identified for interim hearing and determined in this judgment, may be thought to have been more appropriate for a final hearing with greater preparation. To permit this to happen would require an adjournment and further hearing time. However, I have formed the view that it was more desirable and a better use of Court time to determine some issues separately without any further hearing, which is clearly what the parties wanted, rather than being required to return to Court to further agitate the same matters, possibly with additional evidence. Both parties sought some assistance from the Court in determining the issues which were referred for interim hearing, so as to provide clarity to their situation. I have acceded to this approach, not only because the parties pressed for a determination on child support questions, but also because of general case management considerations and balancing fairness to the parties against the claims of other cases to judicial hearing time.
For the purpose of clarifying the applications before me, it is necessary first to outline some of the procedural history of this matter.
PROCEDURAL HISTORY
As I understand the matter, the applications should be explained as follows.
Parenting proceedings commenced in 2015, which had a file number from the Parramatta registry, proceedings PAC3892/2015. They concerned two children, X born in 2003, and Y born in 2008 (“the children”).
X is about to turn 18 years of age. He is completing his Higher School Certificate this year, attending the private school B School in Suburb D NSW as a boarder. Y is 13 years of age and will be subject to the jurisdiction of the Court for some years hence. She attends C School in Suburb E NSW, which is also a private school.
On 24 April 2018, in proceedings PAC3892/2015, Rees J made orders by consent (“the 24 April orders”) finalising the parties’ parenting dispute. The relevant orders are Orders 2, 3, 4, and 18, which are set out below:
2. That the Mother have sole parental responsibility for X and Y.
3. That the Mother not:
(a) change the schools attended by X or Y or enrol either child in another school without the written consent of the Father (noting that Y is enrolled at C School, Suburb E and at F School, Suburb G); and
(b) remove X from attending B School as a boarder without the father's consent unless X ceases his school education.
4. That the children live with their Mother.
…
18. The Father and the Mother shall each pay one half of the school fees for each of the children and a departure order is consequently made.
On 26 April 2018, Rees J also made the following orders and notations by consent (“the 26 April orders”):
Child Support
9. The Court being satisfied in the special circumstances of this case, that one or more grounds of departure exist pursuant to s.117(2) of the Child Support Act, it is just and equitable and otherwise proper to make Order 18 of the Orders made on 24 April 2018.
NOTED
A. The parties have agreed to enrol the children at private boarding schools and consider that to be in the best interests of such children and consequently Orders were made in relation to the costs of such schooling as part of the Parenting Orders.
B. The parties agree that for the purpose of Child Support assessments and/or calculations, on those nights when the children are in the care of their school they are in the care of neither their mother or their father.
It can be seen that Order 18, by consent, was expressed to be made as a departure order pursuant to the Child Support (Assessment) Act 1989 (“the Assessment Act”), on the basis that, in the special circumstances of the case, the Court was satisfied that one of the grounds for departure set out in s 117(2) of the Assessment Act was made out. Thus, according to its terms, Order 18 was made under Division 4 of Part 7 of the Assessment Act. It can also be seen that Order 18 does not require the father to make payment of school fees to the mother herself. I will return to the significance of these two observations later in these reasons.
Despite the fact that the April orders were made by consent, the mother filed a Notice of Appeal on 22 May 2018. The appeal was heard on 17 July 2018 and failed, leaving the 24 and 26 April orders undisturbed.
It was common ground that between April 2018 and December 2019, the father paid his share of school fees in accordance with Order 18, but then he stopped. The school fees for the children totalled $56,032 for 2020. The mother paid the entirety of the school fees for 2020 herself. The school fees will total $48,118 for 2021.
On 29 January 2021, the father filed an Initiating Application in the Sydney Registry. This application was allocated a new file number, SYC454/2021. He sought identical orders on a final and interim basis as follows:
1. That Order 3 made on the 24th April 2018 be discharged.
2. That Order 18 made on the 24th April 2018 be discharged.
3. The respondent cause to be delivered to the applicant the children's motorised toys at the commencement of any time spent with the children.
4. The respondent cause to notify the applicant of the location of the motorised toys and if the respondent is to sell the motorised toys the applicant is to receive 50% of the proceeds of sale.
5. Urgent hearing of the matter.
On 5 May 2021, the mother filed an Application in a Case in proceedings PAC3892/2015 seeking the following orders:
1.That leave be granted to list this matter urgently
2.Enforcement of Order 18 made by the Honourable Justice Rees on 24 April 2018 (18.The Father and the Mother shall each pay one half of the school fees for each of the children and a departure order is consequently made.)
3.An Order for the Father to pay his share of outstanding private school fees for both children from 1 January 2020 to current, owed to the Mother within 14 days of Orders being made.
4.That pusuant (sic) to Section 124 of the Child Support (Assessment) Act the Child Support Agency from the date of Orders to collect 50% of the childrens (sic) private school fees on behalf of the Mother, in addition to amounts required to be paid pursuant to any administrative asesement (sic).
5.Leave granted to provide updated school fees owing to me and/or the respective school closer to the hearing date.
The claims in Orders 2 and 3 of the mother's application do not seem to be made under any of the relevant provisions of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”), for example, ss 111B, 113 and 113A.
As pointed out already, Order 18 does not oblige the father to make payment to the mother as payee. It does not require periodic or non-periodic payment by either party to the other. Order 18 is in the form of a mandatory injunction and merely renders each party liable to pay 50% of the school fees, presumably to be paid directly to the relevant school. Neither party falls within the definition of a “payee” under s 4 of the Collection Act. Order 18 does not appear, therefore, to fall within the definition of a registrable maintenance liability under s 117 of the Collection Act. Nor does s 79 of the Assessment Act apply to any amount payable under Order 18 for the same reason.
Rather, the mother’s application for Orders 2 and 3 appears to be for enforcement of Order 18 under the applicable court rules, and in the original proceedings. I will determine her application on that basis.
I am unable to understand clearly what Order 4 seeks. It appears to be an order compelling the Child Support Agency (“the Agency”) to collect school fees on behalf of the mother. Even if s 124 of the Assessment Act gave the Court power to make such an order, which I doubt, the Child Support Registrar (“the Registrar”) is not a party to these proceedings, as the mother seems to have recognised. Furthermore, for the reasons given in [18] above, I would not as a matter of discretion make such an order. Order 4 will be dismissed.
The father then filed an Amended Initiating Application on 21 June 2021 in proceedings SYC454/2021. Order 1 of the final relief sought is in the following terms:
1.That Orders 2, 3, 4, and 18 made on the 24th April 2018 be discharged.
The father also seeks final and interim orders for equal shared parental responsibility for the children, and that they live on a week about basis with both parents. He repeats Orders 3 and 4 of his Initiating Application concerning toys, and seeks a new final Order 6 in the following terms:
6.That the Applicant and Respondent do all things and sign documents so as to cause the Child Support Registrar to accept that the children X (sic) and Y are in the care of their school and not in the care of either party when they are at boarding school.
APLICATION TO DISCHARGE PARENTING ORDERS
It can be seen that, in part, the father seeks discharge of the parenting orders made by consent on 24 April 2018 as both interim and final relief. This raises the question of the application of the principles articulated in Rice & Asplund (1979) FLC 90-725. In Defrey & Radnor [2021] FamCAFC 67 at [19] the Full Court said: “In our view, the Rice & Asplund test applies to all applications which seek to revisit parenting orders”. I have recently set out those principles: Galloway & Steele [2021] FamCA 508 at [52] – [72]. It is unnecessary to repeat them here, except to make two observations.
The first is that any hearing concerning a change to parenting orders is a hearing on the merits, whether undertaken as a preliminary hearing or after a more comprehensive hearing. The second is that the father will have to persuade the Court that there has been a change of circumstances sufficient both to outweigh the negative impact of re-litigation on the children, or more accurately Y, because X is about to reach his majority, and to provoke a fresh hearing on parenting questions. This can be dealt with as a preliminary issue, but no appropriate orders have been made for this to happen in proceedings SYC454/2021.
To afford procedural fairness, the parties must be clear that the preliminary dispute may be determinative of the application: Gotch v Gotch [2009] FamCAFC 3 at [13]; Marsden & Winch (2009) 42 Fam LR 1 at [56]. The parties made no submissions about the discharge of Orders 2, 3 and 4 of the 24 April orders.
They must also, of course, be aware they are engaged in a preliminary hearing. As I understood their submissions, neither party thought they were engaged in a preliminary hearing of the Rice & Asplund test. It is not possible or appropriate to deal with the father’s application to discharge Orders 2, 3 and 4 of the 24 April orders as interim relief. Thus, to be clear, this judgment does not deal with the father’s application to vary parenting orders.
APPLICATION TO DISCHARGE DEPARTURE ORDER
I will have to therefore deal with the father’s application to discharge Order 18 and for Order 6, and the mother’s application to enforce Order 18, on the basis that Orders 2, 3 and 4 of the 24 April orders remain undisturbed.
To recap, the father seeks a discharge of Order 18 as final relief in his Amended Initiating Application in proceedings SYC454/2021. The mother seeks enforcement of Order 18, but in proceedings PAC3892/2015.
In the context of the extant Court applications, it is then necessary to record some of the history of the parties’ engagement with the administrative processes of the Agency, and associated review procedures undertaken after April 2018. Deciphering in full the details of exactly what took place is not easy on the basis of the evidence provided.
Evidence relied upon
From what I could gather, the father relied on the following documents
(1)Amended Initiating Application filed 21 June 2021;
(2)Affidavit filed 13 July 2021; and
(3)Amended Financial Statement filed 16 February 2021.
The mother relied on the following documents:
(1)Application in a Case filed 5 May 2021;
(2)Sworn Evidence Annexures in the Affidavit of Ms Caffyn filed 5 May 2021;
(3)Affidavit filed 12 July 2021;
(4)Affidavit filed 21 July 2021;
(5)Financial Statement filed 12 July 2021; and
(6)School Fees Paid by Ms Caffyn to C School and B School.
Neither party provided a Case Outline.
Evidentiary issues
I will read the evidence in each proceeding as evidence in the other proceedings. However, there are a number of evidentiary issues that require specific discussion.
Section 69ZT(1) in Division 12A of the Family Law Act 1975 (Cth) (“the Family Law Act”) provides that numerous parts of the Evidence Act1995 (Cth) (“the Evidence Act”) do not apply to child related proceedings. Section 69ZM provides that proceedings are “child related proceedings” to the extent they are brought under Part VII of the Family Law Act. The father’s claims to vary the final consent parenting orders of April 2018, apart from Order 18, are child related proceedings. If proceedings partly include claims to relief which are not brought under Part VII, that part of the proceedings is not governed by Division 12A and the Evidence Act provisions apply in full, unless the parties consent to Division 12A applying to the whole proceedings. There is no such consent here. The competing claims for enforcement or discharge of Order 18 are not brought under Part VII of the Family Law Act. Consequently, the Evidence Act provisions apply in full.
The mother annexed to her evidence a number of notices of assessment and decisions of the Agency, or more accurately, delegates of the Registrar. These raise some complex issues about their status as evidence. It is necessary for me to express a view about their admissibility and what they actually prove for the purposes of this judgment. As self-represented litigants, the parties of course made no submissions about these questions.
Under the Evidence Act, it seems to me that the Registrar meets paragraph (e) of the definition of an “Australian Court” in the Dictionary to that Act, being “a person or body authorised by an Australian law, or by consent of the parties, to hear, receive and examine evidence”. The Child Support Registrar is established by s 10 of the Collection Act. Section 29 of the Assessment Act empowers the Registrar to make decisions on the basis of documentary material supplied by the parties. Parties can also make submissions orally to the Registrar or delegated decision makers. The Registrar thus appears to be a person authorised by the Assessment Act to hear, receive, and examine evidence.
By comparison, it has been held that the Refugee Review Tribunal falls within the definition of “Australian court”: Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 555 (“Epeabaka”); Gerard Cassegrain & Co Pty Limited v Cassegrain [2011] NSWSC 1156 at [40].
In Epeabaka, Finkelstein J pointed out that the processes of the Refugee Review Tribunal are more inquisitorial than adversarial, and designed to be “fair”. It has been well established that the processes for the assessment of child support by the Registrar are less adversarial, whilst, at the same time, remaining fair: Yewen & Child Support Registrar (2014) 290 FLR 366 (“Yewen”) at [79]; Warwick & Cutler [2016] FamCA 934 (“Warwick”).
Section 157 of the Evidence Act allows this Court to receive evidence of “a public document that is a judgment, act or other process of an Australian Court” if a copy is produced that “purports to be signed by a judge, magistrate, registrar or other proper officer of that court”: s 157(c). A “public document” is defined in the Dictionary to the Act as including a document which “forms part of the records of a person or body holding office or exercising a function under or because of…an Australian law”. The copies of the notices of decision relied upon by the mother have, on their face, electronic signatures of the Registrar’s or their delegates. Although they are not judgments, they seem clearly to be an “act or other process” of the Registrar or other proper officer of the Agency, and form part of the records of the Registrar.
A number of other provisions require comment. Section 91(1) of the Evidence Act limits the use of evidence of a “decision, or of a finding of fact, in an Australian proceeding”. It renders such evidence inadmissible “to prove the existence of a fact that was in issue in that proceeding”. The expression “an Australian or overseas proceeding” is defined in the Dictionary to mean “a proceeding (however described) in an Australian court or a foreign court”.
I have already held the Registrar meets the definition of an Australian court. The question is whether the process of determining an assessment (or change of assessment) by the Registrar or the delegates is “an Australian proceeding”. The term “proceeding” is not defined in the Evidence Act. There is limited judicial commentary which assists in resolving the ambit of the term. For the purposes of interpreting s 4, which sets out the courts and proceedings to which the Evidence Act applies, it has been held that “proceeding” includes, for example, an examination conducted by a Court under s 596B of the Corporations Act 2001 (Cth): Re Interchase Corporation Ltd (1996) 68 FCR 481 at 487 per Kiefel J (as she then was). However, in Griffin v Pantzer (2004) 137 FCR 209 at [205], the Full Court of the Federal Court disagreed with this view in relation to an examination under s 81 of the Bankruptcy Act 1966 (Cth). Allsop CJ (with whom Ryan and Heerey JJ agreed) said at [202]:
It is not easy to see how an examination under s 81 is … a proceeding. It is not between parties. It is not the resolution or agitation of a lis at which evidence is adduced under the rules of evidence. It does not have parties or witnesses properly so-called. It is an interrogation – a fact-finding exercise... The notes or transcript of the “evidence given at the examination” (see s 81(17)) can be used as evidence, but the “evidence” is only the answers on oath to an interrogation by the trustee or creditor.
Allsop CJ also said at [203] that an examination under s 81 could, “for some purposes, or in some legislative contexts, be a proceeding”, but not for the purposes of applying the Evidence Act itself. The NSW Court of Appeal held that a decision by ASIC to disqualify a director from managing corporations for four years was not an “Australian or overseas proceeding”, although without any discussion: Panayi v Deputy Commissioner of Taxation (2017) 319 FLR 228 at [37].
It is well settled, as the Full Court made clear in Secretary, Commonwealth Attorney General's Department & Bashir [2021] FamCAFC 137 (“Bashir”) (below at [75]), that the decision making process of the Registrar under the Assessment Act has the juristic nature of an administrative process. For example, s 66D provides that:
In making an administrative assessment, 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.
Where an application is made under Division 2 of Part 6A of the Assessment Act for a change of assessment, s 98H provides:
(1) In making a decision under this Division in relation to an application, the Registrar:
(a) may act on the basis of:
(i) the application and the documents accompanying it; and
(ii) if action has been taken under section 98G--the reply (if any) to the application and the documents (if any) accompanying it; and
(b) may, but is not required to, conduct any inquiry or investigation into the matter.
There is no doubt that the process of making an administrative decision under the Assessment Act by the Registrar is not a resolution or agitation of a lis at which evidence is adduced under the rules of evidence. The authorities have been at pains to emphasise the difference between the administrative process of the Agency and court proceedings (below at [75]). Agency processes do have parties but not, usually, witnesses and bears some analogy to an interrogation. The rules of evidence do not apply. But as a matter of construction, a resolution of these conflicting considerations does not lead to the obvious or necessary conclusion that the administrative process to reach a decision on the assessment of child support in the Agency is not “a proceeding in an Australian court”.
Some force should be given to bracketed words “however described” in the definition of “a proceeding (however described) in an Australian court or a foreign court” in the Dictionary. The Agency’s administrative process is a proceeding which is subject to review and appeal, although appeals come before a Court only on a point of law. In Daunt v Daunt [2015] VSCA 58 at [59] (“Daunt”), the Full Court of the Victorian Supreme Court held it was an error for a Court, on appeal from the Victorian Civil and Administrative Tribunal, to rely on factual findings made by the Tribunal. Rather, it was for the Court to make the relevant factual findings and “this was not a task that could be abdicated in favour of the determination of some other body. That is the effect of s 91 of the Evidence Act 2008. It reflects the common law.”
It bears repeating here that in the proceedings before me, the wife relies on the notices of decision for the purposes of her claim to enforcement of a Court order, not by any process of appeal. Nonetheless, the comments in Daunt are apt in relation to decisions of the Agency as evidence in this Court. I find, recognising I have not had the benefit of any argument from the parties, that the administrative process is a “proceeding” within s 91 of the Evidence Act. Consequently, the limitation contained in s 91(1) of the Evidence Act (set out above at [40]) applies in these proceedings in this Court, specifically to the copies of the notices of decision relied on by the mother.
However, even if this conclusion is wrong, and s 91 does not apply, this does not mean I can accept and act upon any findings of fact recorded in the notices of decision. In Re HIH Insurance Ltd (in liq) [2015] NSWSC 790 at [58], Brereton J held:
What s 91 is addressing is the formal record of conviction, the formal record of acquittal or the formal judgment or order disposing of a case in a civil case. It is not addressing the reasons for judgment, the findings of fact made by a judge in the course of coming to the final conclusion, nor the remarks on sentence, all of which remain no more than the opinion of the judge.
This view was recently embraced by the Full Court of the Federal Court in Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V (2021) 389 ALR 612 at [110], endorsing also the view of Hunt AJA in Hunt AJA in Ainsworth v Burden [2005] NSWCA 174 at [94] and [109] (“Ainsworth”). The reasons for the decisions of delegates of the Registrar remain, to paraphrase Brereton J, no more than the opinion of the delegates of the Registrar. I accept this view is correct.
In light of these authorities, I do not receive findings of fact recorded in the notices of decision by the delegates of the Registrar, relied upon by the mother, as evidence proving the existence of those facts. Nonetheless, I hold that the evidence of the notices of decision are admissible for the limited purpose of proving that the Agency made the relevant decisions, and to prove the extent of the decision makers’ examination of the parties’ circumstances. As Hunt AJA said in Ainsworth at [109], even if s 91 applies, it does not reject facts which are not in issue. I will take account of the reasons for their decisions to that limited extent and to the extent necessary for the purposes of this judgment, although I express this view tentatively because I have received no argument about these matters.
Procedural history with the Child Support Agency
It appears that on 11 October 2016, an initial assessment was made by the Agency for child support to be paid by the father. On 18 October 2018, the father filed a review of this first assessment. A decision on the review was given on 22 January 2019. This assessed the father’s adjusted taxable income at $77,048. The father then applied to the Administrative Appeals Tribunal (“the AAT”) to review the decision of 22 January 2019. On 30 October 2019, the AAT upheld the decision to assess the father’s income for the period 22 June 2018 to 31 December 2020 at $77,048. The father appealed to the Federal Circuit Court (as it then was), but discontinued the appeal. On 13 January 2020, the father sought a review by the AAT of his assessed income, claiming it was lower than the Agency found. It is not clear what happened to this review.
On 2 March 2020, the father filed a further application in the AAT seeking a review of the care percentage decision which allocated 100% care of both children to the mother. On 27 May 2020, the AAT altered the care percentage to attribute 89% care to the mother and 11% to the father, effective retrospectively from 29 April 2019.
On 8 May 2020, following a Change of Assessment review filed by the father, the Agency declined to make any change to the father’s assessment. No objection was lodged by either parent to this decision.
On 25 September 2020, the mother applied to the Agency to change the child support assessment. There are ten reasons for a change of assessment, contained within s 117(2) of the Assessment Act. The mother relied on Reason 3: “the costs of maintaining a child are significantly affected by high costs of caring for, educating or training the child in the way both parents intended”, and Reason 8A: “the child support assessment is unfair because of a parent’s income, earning capacity, property or financial resources”. The father made a cross application, also relying on Reason 8A.
At the time these review applications were made, the existing child support assessments required the father to pay annual child support as follows:
1.$12,900 for the period 1 October 2020 to 31 December 2020, calculated using an adjusted taxable income of $77,048 for the father and $79,000 for the mother;
2.$443 for the period 1 January 2021 to 31 December 2021, calculated using an adjustable taxable income of $7,152 for the father and $90,030 for the mother.
The decision on this review was delivered on 28 January 2021. The decision maker adjusted the father’s taxable income to $70,000, and for the period 1 January 2021 to 31 December 2021, increased his annual rate of child support to $35,151, or $2,929 per month. This was an increase of $24,059 per annum.
I emphasise that this increase of $24,059 per annum reflected the father’s liability for the children’s school fees for 2021.
Several other points should be emphasised about this decision.
The first is that it is clear from the decision that the parties provided, once again, extensive evidence about their financial circumstances, and the decision maker was satisfied the father’s financial resources were considerably higher than he claimed. She determined his income to be “around $70,000”. The decision maker decided that the existing child support assessment was unfair, that is, too low, because the father had greater financial resources than previously assessed.
The second is that the decision maker also paid close attention to the 24 April and 26 April orders, and specifically Order 18 requiring equal contributions to the payment of the children’s school fees. She received evidence of the cost of privately educating the children. The decision maker took account of the father’s application to this Court to discharge Orders 3 and 18 of 24 April 2018, and of the fact that from November 2019, the father had told the mother through email correspondence that he could no longer afford private school fees and that the mother should move the children to public schools.
The third is that the decision maker took account of the fact that Order 18 does not require the father to pay half the private school fees to the mother herself. Although it requires each parent to meet 50% of the school fees, there is no requirement for the father to pay his share to the mother, and for the mother to then subsequently pay the school.
The fourth is that the decision maker was satisfied that each parent had the capacity to pay half the private school fees.
The fifth is that the decision maker noted that the father had delayed in making any application to set aside any of the court orders of April 2018, and the mother had delayed in making any change of assessment application in respect of school fees after the father said he could not pay in November 2019.
Finally, the sixth point is that the decision maker held that the father had a right to rely on the administrative assessment made prior to her decision. The decision maker cautioned that a retrospective decision would increase the father’s liability for arrears, thus placing him in financial hardship whilst resulting in an overpayment to the mother.
The father lodged an objection to this decision on 17 February 2021. A decision on the objection was delivered on 4 June 2021. The father’s adjusted taxable income was reduced to $54,081. However, the annual rate of the father’s child support obligation for 2021 remained unchanged at $24,059 per annum. Again, the decision maker was provided with extensive evidence about the parties’ financial circumstances. The father claimed a monthly increase in child support payable by him from $1,000 to $3,050 was “ridiculous”. However, the decision maker was satisfied that he had the financial capacity to pay private school fees, and his decision was otherwise just and equitable.
It can be seen that the parties have been fully engaged with the Agency processes and review procedures for a number of years, including the months shortly before their applications were referred to a judicial duty list in this Court. Their financial circumstances have been considered in detail by the Agency twice between January and June 2021. It can also be seen that the father is now subject to a child support assessment by the Agency for the remainder of 2021, which requires him to pay an amount which takes account of his liability for school fees for 2021, under Order 18. However, the Agency made no assessment which included a figure which took account of the arrears in school fees for 2020, which the mother has paid in full herself.
Father’s application for discharge
It is logical to deal with the father’s application regarding Order 18 first. If successful, there may be no Order 18 for the mother to enforce. In order to impose some procedural regularity on the competing applications, I will treat this application as an application for a separate determination under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, which commenced on 1 September 2021 (“the new Rules”). This will enable to father to appeal if he so chooses.
It is unclear from what date the father contends the order should be discharged. Even if discharged, this would not relieve him of the need to remedy past non-compliance, unless a discharge is ordered from the date when non-compliance began. I infer that he seeks discharge from the date he ceased complying with Order 18 in 2019.
Applicable law
Since the decision in Gilmour and Gilmour (1994) 18 FamLR 646 (“Gilmour”), it has been clear this Court has jurisdiction to vary or discharge a departure order. This may be done under s 129 of the Assessment Act, with regard to non-periodic child support departure orders made under the provisions of Division 5 of Part 7, or s 141(1)(j), with regard to periodic child support departure orders made under Division 4 of Part 7. However, much like s 80 of the Family Law Act, s 141 is not an independent source of power. It only confers on the Court a range of powers available when exercising jurisdiction under the substantive provisions of the Assessment Act.
A fundamental difficulty with Order 18 is that although it is expressed as a “departure order” made under s 117 in Division 4 of Part 7 of the Assessment Act, an order made under either Division 4 or 5 of the Assessment Act is made between a “carer entitled to child support” and a “liable parent”, the latter to make payment to the former. As already pointed out, under Order 18 neither parent is the “liable parent” required to make a payment to the other. This raises the question of whether Order 18 is a departure order at all made under the Assessment Act. However, since the parties are self-represented and need finality, I will first apply the law as if Order 18 is truly a departure order according to its terms, then express a view on the assumption that Order 18 is not a departure order.
The Full Court in Gilmour, following Gyselman & Gyselman (1992) FLC 92-279 (“Gyselman”), held that in determining an application to vary or discharge a departure order, the court must apply the three stage process required under s 117 of the Assessment Act. That is, the court must satisfy itself that:
1. One or more grounds for departure in s 117(2) is established;
2. It is “just and equitable” within the meaning of s 117(4) to make a particular order; and
3. It is “otherwise proper” within the meaning of s 117(5) to make a particular order.
However, it makes a material difference whether Order 18 was made under Division 4 or Division 5 of Part 7 of the Assessment Act.
As already noted, Order 9 of the 26 April orders specifies that Order 18 is a departure order made by reference to the grounds set out in s 117(2). The three step procedure set out in Gyselman applies to such an order. Section 117 falls in Part 7 Division 4 of the Assessment Act. A departure order made under Division 4 must satisfy ss 116 and 117. One of the grounds in s 117(2) must be established, but before jurisdiction under s 117 is enlivened, s 116(1)(b)(ii) must be fully satisfied.
This requires the Court to be satisfied it is in the interests of both parties for the Court to “consider” making a departure order. Only then does the Court have jurisdiction to make an order under s 117: Seymour & Seymour [2011] FamCAFC 97 (“Seymour”) at [84]; Saberton& Saberton [2013] FamCAFC 89 (“Saberton”) at [12]. In Gilmour, the Full Court made clear that where the discharge or variation of a departure made under Division 4 is sought, s 116 must be satisfied.
It is well settled that court proceedings regarding child support assessments should be the exception rather than the rule, because the Assessment Act establishes a detailed administrative framework to deal with child support applications. Therefore, the circumstances in which departure applications are to be heard by the Court are limited, given the desirability of such issues being determined in a manner characterised as being less adversarial, whilst, at the same time, remaining fair: Yewen at [79]; Warwick at [59]; Babbit & Babbit (2011) 46 Fam LR 77 at [134]; Lesley & Lesley [2015] FamCA 894 at [62]; Cleaves & Cleaves [2021] FamCA 571 at [12] – [14] and authorities cited there. The Assessment Act creates a process for administrative determination with rights of review, “including ultimately, judicial determination if the AAT is said to have erred in law”: Bashir at [48]. As already pointed out, both parties have already extensively engaged with the procedures to change or review the applicable child support assessments. It should be clear that there is no appeal from a decision of the AAT before me.
As detailed earlier in these reasons, both parties have engaged extensively with the administrative processes of the Agency and the review procedures, which have resulted in several recent careful conclusions about their financial resources and capacity to pay child support. In light of this, I am not satisfied it is in the interests of both parties for the Court to consider making a departure order discharging Order 18, if it was made under s 117. It is clear the Agency has considered the parties’ circumstances in great detail. I can see no good reason why this Court should consider doing so as well. Section 116(1)(b)(ii), a precondition before s 117 is enlivened, is not satisfied.
If Order 18 was made under Division 4 of Part 7, this conclusion would be sufficient reason for this Court to refuse the father’s claim to discharge it. However, a difficulty arises because there is Full Court and first instance authority which holds that a departure order for payment of private school fees is made under the provisions of Division 5, not Division 4, of Part 7, in particular ss 124 and 125 of the Assessment Act: Sathra & Sathra [2013] FamCAFC 142 (“Sathra”) at [76] and [77]; Jacobova & Stein [2016] FamCA 825 at [200].
Although in its terms, Order 18 as read in conjunction with Order 9 of the 26 April orders was clearly made under s 117, the decision in Sathra raises the question of whether the jurisdictional basis for Order 18 was, in truth, s 124, which falls in Division 5, not Division 4.
There is also Full Court authority that holds that s 129 of the Assessment Act is the correct provision under which to seek to vary or discharge a departure order for non-periodic child support made under Division 5: Suiter & Suiter [2016] FamCAFC 72 at [14] and [15]. Section 129(1) gives the Court power to discharge, suspend the operation of, or vary a non-periodic departure order made under s 124.
I note that neither party made any submissions about any of these questions. Since both were self-represented, this is not surprising. However, since these questions go, at least in part, to jurisdiction, I consider it necessary to express a view as to whether Order 18 should be discharged under s 129.
The powers granted by s 129 to vary suspend or discharge a departure order are discretionary. Before exercising the discretionary power in s 129(1), s 129(2) requires the Court to be satisfied it would be “just and equitable” as regards the children and the parents, and “otherwise proper” to make the order. These expressions in s 129(2) are given further definition by ss 129(5) and (6).
Section 129(5) provides that:
In determining whether it would be just and equitable as regards the child, the carer entitled to child support and a liable parent to make an order under subsection (1), the court must have regard to the matters mentioned in subsections 117(4), (6), (7), (7A) and (8).
Section 129(6) provides that:
In determining whether it would be otherwise proper to make an order under subsection (1), the court must have regard to the matters mentioned in subsection 117(5).
In Sathra at [76], the Full Court pointed out that to a considerable extent, the factors which must be considered under ss 121, 123 and 124 of the Assessment Act overlap with the objects of Part 7 of Division 5 and s 117. That is, the Court must consider whether it would be just and equitable as regards a child, the carer entitled to child support (the mother) and the liable parent (the father) to make an order having regard to the matters mentioned in ss 117(4), (6), (7), (7A) and (8): Sathra at [77]. The Court must also determine that it would be “otherwise proper” to make an order under s 129(1), by reference to the matters in s 117(5), noting that neither child or parent is entitled to an income tested pension. Many of those findings would logically incorporate findings made under Part 7 Division 4. An application to discharge arrears is an application for a retrospective departure order so that the assessment equates to the amounts paid: Sathra at [81].
As I understand his arguments and evidence, the father seeks a discharge of Order 18 because of a change of circumstances in the form of diminished financial capacity. It is the father's contention that when he consented to the 24 and 26 April orders, he did not expect an additional child support assessment by the Agency, particularly because Notation B specifically addressed the fact that neither parent was taken to have care of the children when they were in the care of the school. The father told me that the Agency will not take any notice of Notations A and B, and that some common sense needs to be applied to the situation. He claims he has no capacity to pay the administrative assessment as well as school fees. As already noted, he has engaged in the review process and told me that he is presently before the AAT seeking a review of the existing administrative assessment made in June 2021.
The central difficulty in the position taken by the father is that despite accepting in submissions that he could pay either the children’s school fees or the administrative assessment but not both, he has nonetheless ceased paying both. His position would have more credibility if he had continued paying the school fees, while exhausting the steps to challenge the administrative assessment which he finds intolerable.
This is particularly so because it appears that until January 2021, the father’s assessments for child support were $12,900 for October 2020 to December 2020, then $443 for January 2021 to December 2021. These are not obviously onerous amounts. The evidence of the change of assessment decisions in 2021, described at some length above at [51] – [56], [65] and [66], shows that the Agency has closely considered the evidence of both parties’ financial positions and is satisfied the father can pay his share of the 2021 school fees.
Moreover, it is self-evident, according to the father’s own stated position, that if he ultimately succeeds in overturning the administrative assessment through review procedures, he should also have been paying school fees in accordance with Order 18 throughout 2020. But since December 2019, he has chosen to pay nothing towards the children’s school fees. This is not justified, even on his own argument. The administrative assessments were, and are, a separate source of liability. It is not of itself a reason to stop paying school fees in accordance with Order 18, which is also a separate source of liability. Order 18 must be complied with unless it is discharged.
I also take account of the fact that X will finish school this year, 2021. The father’s liability for half of the school fees will become much lower after 2021, although Y will continue in secondary school for several more years.
It is important to emphasise also that s 129(7) provides that “Subsections (5), (5A) and (6) do not limit the matters to which the court may have regard”. I interpret this provision to mean that, apart from the mandatory matters stipulated in ss 129(5) and (6), the Court may take into account other relevant matters in determining whether it is just, equitable, and otherwise proper to discharge a departure order for non-periodic child support.
Pursuant to s 129(7), I also have regard to the nature of Order 18 as a final order made by consent. Generally, final orders of this Court cannot be set aside except in limited circumstances or on appeal. Discharge of final consent orders raises the question of the underlying agreement. It is well settled that final consent orders which embody an agreement may be set aside on any recognised basis to set aside a contract such as “illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like” but if the agreement stands, so does the order: Harvey v Phillips & Anor (1956) 95 CLR 235 at 243-44; I Limited & Chester and Ors [2010] FamCAFC 251; [2010] FLC 93-456; (2010) 44 Fam LR 585 at [165] – [169].
Here, the evidence is clear that the 24 and 26 April orders were based upon agreement between the parties. There is no contention made by the father that the agreement could be impugned on any of the bases referred to in Harvey v Phillips. There was nothing improper or inadequate in Order 18 at the time it was made.
Pursuant to s 129(7), I also have regard to the considerable and detailed consideration the Agency has given to the question of child support, set out above at [51] – [66]. Quite apart from any considerations under Division 4 of Part 7, and irrespective of any findings of fact made by the delegates of the Registrar, I see no reason why this Court should involve itself in considering the discharge of Order 18 under s 129. Court proceedings should be the exception rather than the rule, and the Agency has itself given close consideration to the impact of Order 18 and the payment of school fees in setting the father’s child support liability for 2021. As already pointed out, the evidence showed that the Agency, for the purposes of numerous applications for changes of assessment and reviews, has undertaken detailed consideration of the parties’ financial circumstances.
On the father’s evidence, I am unable to conclude that he is presently being unjustly treated in some way by the Agency or the AAT. I see no reason why I should embark on a process which may risk reaching a view about the father’s financial position that is different from the Agency or the AAT, or to interfere in some way with their findings or processes. This is not on the basis any estoppel, for example, that might be said to exist between the parties by reason of the Agency’s decisions on 28 January or 4 June 2021, but as a matter of discretion (cf Daniels & Bell [2007] FLC 93-315 at [75]), and in light of the conclusion reached above at [50]. The father, in truth, invites this Court to make factual findings and orders inconsistent with the decisions of the Agency because he is not satisfied with the outcomes from the Agency. It is undesirable for this Court to accept such an invitation where the Agency has given wide-ranging consideration to the parties’ financial position. In my view, the father should continue to follow and exhaust the review procedures which he has already invoked, rather than asking this Court to bypass those procedures for the purpose of coming to a different view.
To the extent possible on the evidence provided, I have given consideration to all the matters referred to in ss 117(4), (5), (6), (7), (7A), and (8) of the Assessment Act. I refer to the factual findings above at [51] – [56], [65] and [66]. I also refer to the affidavit evidence of the parties. Taking account of the duties of the parties to maintain the children, the needs of the children, including the manner of their education, the income, property and financial resources of the parties, and hardship to the mother and the father, together with the matters referred to at [74] above, I am not satisfied it would be just and equitable or otherwise proper to discharge Order 18. This conclusion means the discretion in s 129(1) is not enlivened.
Even if this conclusion is wrong, as a matter of discretion, for the same reasons, I am not persuaded that the Court should exercise any power under s 129 to discharge Order 18.
Therefore, whether Order 18 is properly understood as a departure order made under s 117 or under s 124 of the Assessment Act, I am not persuaded it should be discharged on the father’s application under the provisions of the Assessment Act.
I return then to the question of any other jurisdictional basis of Order 18. In circumstances in which the father seeks its discharge, and if it is not a departure order made pursuant to the provisions of the Assessment Act, I must express a view as to whether it was made within jurisdiction before determining the question of discharge. Again, and understandably, no submissions were made on this question.
Section 114(3) is in the following terms:
A court exercising jurisdiction under this Act in proceedings other than proceedings to which subsection (1) applies may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), in any case in which it appears to the court to be just or convenient to do so and either unconditionally or upon such terms and conditions as the court considers appropriate.
Despite the absence of any argument, in the circumstances, I am satisfied that Order 18 can be correctly characterised as a final mandatory injunction made under s 114(3), on the basis of the parties agreement and consent, quite apart from the Assessment Act. Order 18 is therefore a final order of the Court which was not disturbed on appeal. There is no evidence that the agreement upon which Order 18 was based should be impugned for any reason. Therefore, it stands, as the High Court held in Harvey v Phillips (above at [91]). Understood in that way, I am not satisfied the Court has power within its jurisdiction to discharge Order 18 as a final order.
Accordingly, the father’s application to discharge Order 18 should be dismissed.
Finally, it is necessary to mention Order 6 sought by the father. I refer to the considerations set out at [93] and [94] above. These also apply to Order 6 sought by the father. Order 6 is formulated as a mandatory injunction. Order 6 is also expressed in imprecise terms which would make it difficult to enforce. I am not persuaded such an order should be made for these reasons.
Mother’s application for enforcement
I turn then to the mother’s application to enforce Order 18.
On 1 September 2021 the Federal Circuit and Family Court of Australia Act2021 (Cth) (“the new Act”) commenced. Section 37 of Part 5, Schedule 5 of the Federal Circuit and Family Court of Australia (Consequential Amendments and Transitional Provisions) Act2021 (Cth) provides that Division 4, Part 5 of Chapter 3 (Case management) of the new Act “applies in relation to a proceeding commenced before, on or after the commencement day,” which was 1 September 2021. The reference to “Part 5 of Chapter 3” appears to be an error. Part 5 contains only s 55, which deals with appeals to the High Court, not practice and procedure. I will assume that the legislature intended to refer to Part 6 of Chapter 3.
The Family Law Rules 2004 (Cth) have also been repealed (Family Law Repeal Rules 2021, Schedule 1). The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) commenced also on 1 September 2021 (“the new rules”). These apply to proceedings not finally determined before the repeal of the Family Law Rules 2004 (FCFCOA Practice Direction – TRANSITIONAL ARRANGEMENTS, Clause 2.1).
I will proceed on the basis that the new Rules now apply to the mother’s enforcement application.
Enforcement of orders under the new Rules falls in Part 11.1. Division 11.1.1 contains general rules for enforcement of financial orders and obligations. Rule 11.01(1)(a) provides that the Court may enforce under Part 11.1 “an obligation to pay money”. Rule 11.01(2) specifies a range of obligations as obligations “to pay money”. These include “an order made under the Act, the Assessment Act or the Registration Act” (r 11.01(2)(a)(i)), “a liability to pay arrears accrued under an order or agreement” (r 11.01(2)(b)), and a “child support liability” (r 11.01(2)(d)).
A “child support liability” is defined in r 1.05 to mean:
an amount owing under the Assessment Act or the Registration Act (including under a child support assessment or registered child support agreement) that may be registered for collection by the Child Support Agency.
As already made clear, I doubt Order 18 was made under the Assessment Act, despite its terms and Order 9 of 26 April 2018. But in any event, I am not satisfied it could be registered for collection by the Agency. Order 18 is not a “registrable maintenance liability” under the Collection Act because it does not create any liability for payment by one parent to the other: see ss 4, 17, 17A, 18, 18A, 19, and 23 of the Collection Act. Neither parent is the “payer” or the “payee”. I am not satisfied Order 18 is a “child support liability” within the new Rules.
But whether or not Order 18 was made under the Assessment Act, it is a Court order which I have found was made within jurisdiction, and is an obligation to pay money within r 11.01(1)(a). It has created an obligation for the father to make payments of half the children’s school fees, but to the relevant school, not the mother.
The question then is whether the mother may enforce this obligation to pay money. Rule 11.04 provides:
The following persons may enforce an obligation:
(a) if the obligation arises under an order (other than an order referred to in paragraph (c))—a party;
(b) if the obligation arises under an order to pay money for the benefit of a party or child:
(i) the party or child; or
(ii) a person entitled, under the Family Law Act or Family Law Regulations, to enforce the obligation for the party or child;
(c) if the obligation is a fine or an order that a bond be forfeited—the Marshal or another officer of the court;
(d) if the obligation is a child support liability—a person entitled to do so under the Registration Act or the Assessment Act.
The mother is a party to Order 18. Order 18 is also an order to pay money for the benefit of the children. Accordingly, r 11.04 permits the mother to apply to enforce the father’s obligation to pay half of the 2020 school fees. The specific question is what form such enforcement may take.
Rule 11.05 provides that the Court may enforce an obligation to pay money by orders such as seizure and sale of property, attachment of earnings, sequestration of property, or appointment of a receiver. The mother seeks no orders of that nature.
Rule 11.07 gives the Court general powers of enforcement, including making a declaration of “the total amount owing under an obligation” (r 11.07(a)) or stating that
“the total amount owing must be paid in full or by instalments and when the amount must be paid” (r 11.07(b)), or making an order “in aid of the enforcement of an obligation” (r 11.07(e)). This appears to be the order sought by the mother, in the sense that she seeks payment to her of an amount equivalent to the amount the father should have paid for the 2020 school fees. In respect of 2021, it is not clear exactly what the mother wants, except in general terms for the father to pay half the school fees. It is not clear whether this means payment to the respective schools directly or in some other fashion.
Both parties are bound by Order 18. It is a Court order. The mother has complied, but the father has not. As pointed out, there is no dispute that the father has not complied with Order 18 since December 2019. I am satisfied that the Court has power to make orders on the application of the mother, as a party to Order 18, for the father to make a payment which satisfies his obligation for compliance with Order 18.
However, this should be limited to the arrears of the father’s share of the school fees for 2020. As already pointed out, the mother has a child support assessment for 2021 which includes the father’s liability for one half of the 2021 school fees. Collection of this amount, if unpaid, should be left with the Agency. I am not persuaded there is any reason why the mother should have an enforcement order from this Court which covers the same liability.
There is a question whether the terms of Order 18 extend to create an obligation for the father to pay to the mother his share of the 2020 school fees as a liability accrued as arrears. The amount paid by the mother for 2020 school fees in excess of her 50% share are not arrears directly owed to her by the father in accordance with Order 18. As already stated, compliance with Order 18, prima facie, should be satisfied by each parent making payment direct to the children’s schools.
However, as also pointed out, the Court has power to make an order pursuant to r 11.07(e) “in aid of the enforcement of an obligation”. An order requiring the father to pay his share of 2020 school fees to the mother by way of reimbursement, where she has paid his share herself, is, in my view, such an order, being in aid of enforcing the father’s primary obligation to pay half the 2020 school fees.
The mother quantifies the father’s share of school fees for 2020, which she has paid herself, at $28,016. I take account of the fact that the Agency, on both 28 January and 4 June 2021, declined to make an assessment which took account of these arrears for 2020, partly on the basis that Order 18 did not provide for payment to the mother, and partly because to do so would cause the father financial hardship. These may have been good reasons for not including arrears in an administrative assessment. But the findings of fact which support that view are not facts in evidence before me, and I express no view about the correctness of the conclusion. Those decisions are not the subject of proper direct review by this Court.
The father has been aware of his liability under Order 18 since it was made. As already pointed out, according to his own argument the father should have continued paying his share of school fees.
The clear intent of Order 18 was for both parents to pay private school fees. The mother has sole parental responsibility for the children and the benefit of a “live with” order, although I accept there is a contest about the realities of this in light of X’s attendance at boarding school. She is responsible for deciding matters relating to the children’s education, and, by Order 2 of the 24 April orders, is prohibited from changing the children’s schools without the consent of the father. However, there is no reciprocal order permitting the father to decide unilaterally to change the children’s schools.
The remaining question relates to the mechanics of the order for enforcement. Under r 11.07, the Court may make a wide range of orders, including declaring the total amount owing and stating when the amount should be paid either in full or by instalments. The power to make orders under Part 11.1 of the new Rules has been delegated to Senior Judicial Registrars and Judicial Registrars. The father made no submissions about the terms of payment of any arrears. He may not have been aware that the rules permitted him to submit he should be allowed to pay by instalments, for example.
I will declare that the father owes $28,016 under Order 18 as arrears for school fees for 2020, and order the father to pay to the mother that amount, being half the amount she has already paid for 2020. The mother’s application for enforcement of Order 18 will be referred to a Senior Judicial Registrar or Judicial Registrar to determine the timing of the father’s payment, and whether he wishes to make any application to pay by instalments.
I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 22 September 2021
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