Caldwell and Thwaites

[2013] FCCA 2174

FEDERAL CIRCUIT COURT OF AUSTRALIA

CALDWELL & THWAITES [2013] FCCA 2174

Catchwords:
CHILD SUPPORT – Determination – Application for leave – where applicant applies for leave for a determination under Child support (Assessment) Act 1989 (Cth), s.98S – leave granted for Child Support Registrar to make a determination for a period less than seven years earlier than the date of application.

Legislation:

Child Support (Assessment) Act 1989 (Cth), ss.98S, 111, 112

Applicant: MR CALDWELL

Respondent: MS THWAITES

File Number: SYC 5647 of 2013

Judgment of: Judge Scarlett

Hearing date: 10 December 2013

Date of Last Submission: 10 December 2013

Delivered at: Sydney

Delivered on: 10 December 2013

REPRESENTATION

The Applicant: In person

The Respondent: No appearance

ORDERS

1. The Applicant is granted leave under the provisions of section 112 of the Child Support (Assessment) Act 1989 to apply to the Child Support Registrar for a determination under section 98S of the Child Support (Assessment) Act 1989 in relation to the period from 19 June 2007 to 3 September 2007.

IT IS NOTED that publication of this judgment under the pseudonym Caldwell & Thwaites is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 5647 of 2013

MR CALDWELL

Applicant

And

MS THWAITES

Respondent

REASONS FOR JUDGMENT

Application

1. This is an application by the father of two teenaged children for leave under s.112 of the Child Support (Assessment) Act 1989 (Cth) for leave to apply to the Child Support Registrar for a determination under s.98S of the Act in relation to the period 19^th June to 3^rd September 2007.

2. Although sealed copies of the Application and supporting documents have been served on the Respondent mother, she has not attended Court.

Background

1. The relevant facts are set out in the affidavit of the Applicant affirmed on 17^th June 2013.

2. The parties commenced a relationship in 1992. There are two children of the relationship, born on (omitted) 1996 and (omitted) 1999. The children are now living with the Applicant.

3. The parties separated in January 2006. The children remained living with the Respondent.

4. The Applicant commenced working for a company called (omitted) early in 2006. On 12^th January 2007 the Respondent applied to the Child Support Agency for a change of assessment, based on the Applicant’s income. On 16^th April 2007 the Agency set the Applicant’s income for the period 1^st October 2006 to 31^st December 2007 at $46,000.00.

5. The Applicant’s employment with (omitted) was terminated on 19^th June 2007. He deposed in his affidavit that after he lost his job, he was still suffering from depression, which had been previously diagnosed, and “could not cope with managing change or paperwork”.[1] It was not until 3^rd April 2009 that he lodged an application for a change of assessment.

   [1] Affidavit of Mr Caldwell 17 June 2013 at paragraph [27]

6. On 18^th May 2009 a delegate of the Child Support Registrar issued a Notice of decision decreasing the annual rate of child support payable by the Applicant to $333.00 for the period 4^th September to 31^st December 2007. The delegate stated:

   In consideration of the fact that Mr Caldwell has been unemployed and suffering from a mental health problem, I am satisfied that it is just and equitable to reduce the annual rate of child support to $333 for the period from 4 September 2007 to 31 December 2007 to reflect the fact that he was clearly unfit for work.

   This decision will have the effect of wiping of some of the arrears Mr Caldwell has accumulated, although he will still be left with a considerable amount of outstanding arrears. He will need to make an application to the Court for an order to have the earlier period from 19 June 2007 to 3 September 2007 taken into account under the change of assessment process.[2]

   [2] Ibid Annexure “E” page 4

7. Notwithstanding this decision, which was made on 18^th May 2009, the Applicant did not commence proceedings in this Court to seek the necessary leave until he filed his Application on 26^th September 2013. He explained this delay by stating that in 2009 he sought treatment from an alcohol counsellor and a psychologist to deal with his drinking and with his anxiety attacks and depression. He and the Respondent entered into consent orders on 3^rd August 2009 whereby the children would live with the Respondent and spend every second weekend with him.

8. The parties’ elder child commenced living with the Applicant from the middle of August 2010. The younger child remained living with the Respondent.

9. The Applicant deposed that he remained chronically depressed; however, in January 2012 he was diagnosed with “low score bi-polar” and was prescribed anti-psychotic medication rather than anti-depressant medication.

10. The Applicant obtained full time work in August 2012 and remains in employment.

11. He commenced parenting proceedings in this Court on 27^th November 2012, seeking orders that the children should live with him. Interim orders were made on 2^nd May 2013 providing that the children should live with him. A final order was made in September that the children would reside with him.

The relevant sections of the Child Support (Assessment) Act 1989

1. Section 98S of the Child Support (Assessment) Act 1989 provides in subsection (1) that:

   The determinations that the Registrar may make under this Part are as follows:

   (a)a determination varying the rate of child support payable by the liable parent concerned;

   (b)a determination varying the child support percentage, adjusted income amount, child support income amount or exempted income amount of the liable parent;

   (c)a determination making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the liable parent;

   (d)a determination varying the child support income amount or disregarded income amount of the carer entitled to child support concerned;

   (e)a determination making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the carer entitled to child support;

   (f)a determination directing that one or more of the following provisions is not to apply:

   (i)          section 42 (Cap on child support if child support income amount exceeds 2.5 times yearly equivalent or EAWE amount);

   (ii)     section 52 (Cap on combined child support liabilities of 2 liable parents);

   (g)a determination varying a factor ascertained under paragraph 54(1)(b).

2. However, there is a time limit placed on the Registrar’s power to make any of the above determinations:

   (3B)The Registrar may only make a determination under this Part in respect of a day in a child support period, being a day that is more than 18 months earlier than:

   (a)the day on which the application for the determination is made under section 98B; or

   (b)the day on which the Registrar notifies the relevant parties under subsection 98M(1);

   if a court has granted leave under section 112 for the determination to be made.

   (3C)If a court has granted leave under section 112, the Registrar may only make a determination under this Part in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.

3. Subsection 111(1) of the Act entitles parties to apply for amendment of an administrative assessment that is more than 18 months old. It provides:

   (1)Parent or carer applications  A liable parent or carer entitled to child support, (the applicant) may apply to a court having jurisdiction under this Act for leave for:

   (a)     the Registrar to make a determination under section 98S; or

   (b)     the court to make an order under section 118;

   in respect of a day in a child support period, being a day that it more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.

4. Section 112 empowers the Court to grant leave and sets out matters to be considered:

   (1)If an application is made to a court under section 111, the court may grant leave for:

   (a)the Registrar to make a determination under section 98S; or

   (b)     the court to make a determination under section 118.

   (2)The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.

   (3)Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.

   (3A)To avoid doubt, the court may grant leave for the Registrar to make a determination under section 98S, or for the court to make an order section 118, irrespective of what the applicant applied for under section 111.

   (4)Matters to be considered    In considering whether to grant leave under subsection (1), the court must have regard to:

   (a)     any responsibility, and reason, for the delay in:

   (i)          making an application under section 98B or 116; or

   (ii)     making a determination under section 98S;

   as the case requires; and

   (b)the hardship to the applicant (other than the Registrar) if leave is not granted; and

   (c)the hardship to the other party or parties (other than the Registrar) if leave is granted.

   (5)     The court may have regard to any other relevant matter.

   (6)Orders granting leave to specify period  An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.

   (7)     The period specified in subsection (6):

   (a)must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and

   (b)     is not limited by the terms of that application.

   (8)No requirement to make determination or order The granting of leave under subsection (1) does not imply that:

   (a)the Registrar is required to make a determination under section 98S; or

   (b)the court is required to make an order under section 118.

5. If the Court does decide to make an order under section 118 of the Act, subsection 118(1) gives the Court the same powers as the Registrar is given to make a determination under s.98S(1).

Conclusions   

1. In my view, the Applicant has provided an adequate explanation of the delay in bringing the application before the Court. He describes in some detail in his affidavit, and he gave oral evidence, about his difficulty with what was diagnosed as depression but was eventually diagnosed as bi-polar affective disorder. It was this, and his reaction to losing his job, that prevented him from applying to the Child Support Registrar in a timely manner.

2. The Applicant seeks leave to approach the Child Support Registrar for a determination that, if successful, would have the effect of significantly reducing his child support liability for a period of nearly three months in 2007. The real effect of this determination would be to reduce the amount of arrears he is required to pay, along with associated late payment penalties. I am satisfied that there would be hardship to the Applicant if the leave were not to be granted.

3. There is no evidence before the Court to show that the Respondent would suffer hardship if the leave sought were to be granted. She has not filed a Response or any affidavit or financial statement, nor has she attended court. It is hard to see why a reduction of arrears of child support would constitute any real hardship to the Respondent, noting that both children now live with the Applicant.

4. The period in respect of which the Applicant seeks leave is the period from 19^th June 2007 to 3^rd September 2007. That period is more than 18 months earlier than the date of filing of the Application, which was 26^th September 2013, but less than seven years earlier.

5. The Court has the jurisdiction to grant the leave sought and I am satisfied that leave should be granted to the Applicant to apply to the Child Support Registrar for a determination under section 98S of the Child Support (Assessment) Act 1989 for the period 19^th June 2007 to 3^rd September 2007.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Date:  13 December 2013