Cann and Laidlaw
[2012] FMCAfam 1304
•13 November 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CANN & LAIDLAW | [2012] FMCAfam 1304 |
| CHILD SUPPORT – Application for leave to amend administrative assessment more than 18 months old – where Applicant claims assessments from 2007 to 2009 were incorrect – where Applicant claims overpayment of child support – delay – whether delay in making application explained – whether either party will suffer hardship – where Respondent did not attend Court. |
| Child Support (Assessment) Act 1989 (Cth), ss.98S, 111, 112 Child Support (Registration and Collection) Act 1988 (Cth), s.111C Federal Magistrates Court Rules 2001 r.16.05 |
| Cann & Keel [2012] FMCAfam 1243 |
| Applicant: | MR CANN |
| Respondent: | MS LAIDLAW |
| File Number: | SYC 4682 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
The Applicant is granted leave to proceed ex parte.
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 assessments of child support payable by the Applicant to the Respondent that are older than 18 months.
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 & Laidlaw is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 4682 of 2012
| MR CANN |
Applicant
And
| MS LAIDLAW |
Respondent
REASONS FOR JUDGMENT
Application
This is an 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 prior to the date of the application, namely to 2007.
The Applicant also seeks a stay on the collection of arrears pending the decision of the Child Support Registrar under s.98S. In the interim, the
Applicant sought a stay pending the determination of the Application by the Court.
The Child Support Registrar agreed to forward the Application and affidavit in support to the Respondent.
The Respondent has filed neither a Response nor an affidavit in reply to the Application. However, the Applicant has told the Court that the Respondent spoke to his mother and advised her that she did not wish to participate in the proceedings. The Applicant said that he did not have any direct communication with the Respondent or with the Respondent to his other Application (Cann & Keel[1]).
[1] [2012] FMCAfam 1243
On 9th October 2012 the Court ordered a stay of the collection of arrears of child support pending determination of these proceedings under the provisions of s.111C of the Child Support (Registration and Collection) Act 1988.
Evidence
The Applicant relied on an unsworn affidavit and a financial statement, which was filed on 24th October 2012. 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 deposed 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 of more than 18 months previously without a Court Order.
The Relevant Law
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.
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.
Interestingly, subsection 112(3A) makes it clear that:
(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 under section 118, irrespective of what the applicant applied for under section 111.
Section 98S provides that the Registrar may make determinations:
a)varying the rate of child support payable by the liable parent;
b)varying the child support percentage adjusted income amount, child support income amount or exempted income amount of the liable parent;
c)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)varying the child support income amount or disregarded income amount of the carer entitled to child support concerned;
e)making provision of a kind permitted under the regulations with respect to the calculation of any such amount in relation to the carer entitled child support;
f)directing that one or more of the following provisions is not to apply:
i)section 42;
ii)section 52; or
g)varying a factor ascertained under paragraph 54(1)(b).
Relevantly, the section provides at (3B) and (3C):
(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.
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.
I have had regard to the matters to be considered under subsection (112)(4).
Conclusions
The Respondent has neither attended Court nor filed any Response or affidavit setting out any hardship she may suffer if the Court were to grant leave.
The Applicant has given evidence in which he has given a satisfactory explanation for the delay in making an application, given his mental disorder and periods of incarceration. He has also given evidence showing that he would suffer hardship if leave were not granted.
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.
The Respondent did not attend Court on the hearing, or at any time. If she wishes to apply to vary or set aside any of these Orders she may make an Application to do so under the provisions of Rule 16.05.
I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 28 November 2012
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