Cann and Keel

[2012] FMCAfam 1243

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CANN & KEEL [2012] FMCAfam 1243

CHILD SUPPORT – Application for leave to amend administrative assessment more than 18 months old – where Applicant claims assessments for the period from 2007 to 2009 were incorrect – where Applicant claims overpayment of child support – whether delay in applying explained – whether either party will suffer hardship.

Child Support (Assessment) Act 1989 (Cth), ss.98S, 111, 112
Child Support (Registration and Collection) Act 1989 (Cth) s.111C

Applicant: MR CANN

Respondent: MS KEEL

File Number: SYC 4686 of 2012

Judgment of: Scarlett FM

Hearing date: 13 November 2012

Date of Last Submission: 13 November 2012

Delivered at: Sydney

Delivered on: 13 November 2012

REPRESENTATION

Counsel for the Applicant: The Applicant appeared in person

Solicitors for the Applicant: No solicitor

Counsel for the Respondent: No appearance

Solicitors for the Respondent: No solicitor

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. Pursuant to section 112 of the Child Support (Assessment) Act 1989 leave is granted for the Child Support Registrar to make a determination under section 98S of the Child Support (Assessment) Act in relation to an assessment of child support payable by the Applicant to the Respondent that are older than 18 months.

3. Pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the collection of child support arrears accumulated up to and including the date of this Order payable by the Applicant to the Respondent is stayed pending the Child Support Registrar’s decision pursuant to section 98S in relation to the above assessments.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYC 4686 of 2012

MR CANN

Applicant

And

MS KEEL

Respondent

REASONS FOR JUDGMENT

Application

1. This is a Application for orders that the Child Support Registrar should be given leave under s.98S of the Child Support (Assessment) Act 1989 to make a determination of child support for periods going back more than 18 months, namely to 2007.

2. The Child Support Registrar agreed to forward the Application and affidavit in support to the Respondent.

3. The Respondent has not filed a Response or any affidavit in reply. However, the Applicant told the Court that the Respondent has spoken to his mother and advised her that she did not wish to participate in the proceedings.

4. On 9^th October 2012 the Court ordered a stay of the collection of arrears of child support pending determination of the proceedings under the provisions of s.111C of the Child Support (Registration and Collection) Act 1988.

Evidence

1. The Applicant relied on an unsworn affidavit and a financial statement. He gave oral evidence and swore that the contents of his affidavit were true. His evidence was that due to periods of incarceration and a diagnosed mental disorder he was unable to advise the Child Support Agency of his circumstances. He stated that he had overpaid child support by an amount of over $6,000.00 with arrears of over $6,000.00 due, he claimed, to incorrect assessments. He had contacted the Child Support Agency about the situation but had been informed that the Agency was unable to consider an application to review his child support liability for a period more than 18 months previously without a Court Order.

The Relevant Law

1. Under the provisions of s.111 of the Child Support (Assessment) Act 1989, an application may be made for leave in the following terms:

   (1)A liable parent, or a 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 is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.

   (2)Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:

   (a)     the applicant; and

   (b)     either:

   (i) the liable parent; or

   (ii) the carer entitled to child support.     

2. Section 112 of the Act provides at (1):

   (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 an order under section 118.

3. Subsection 112(4) provides that 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.

4. I have had regard to the matters to be considered under subsection (112)(4).

Conclusions

1. The Respondent has not attended court and has not filed any Response or affidavit setting out any hardship she may suffer if the Court were to grant leave.

2. The Applicant has given evidence in which he has given a satisfactory explanation for the delay in making an application. He has also given evidence showing that he would suffer hardship if leave were not granted.

3. Accordingly, the Application is successful and the leave sought will be granted. The collection of arrears of child support will be stayed until the Child Support Registrar makes a decision under s.98S of the Act.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: 

Date:  13 November 2012