CBH23 v Child Support Registrar
[2024] FedCFamC2G 201
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
CBH23 v Child Support Registrar [2024] FedCFamC2G 201
File number(s): SYG 1302 of 2023 Judgment of: JUDGE STREET Date of judgment: 16 February 2024 Catchwords: ADMINISTRATIVE LAW – CHILD SUPPORT – registrable overseas maintenance liability – meaning of child – relationship not under age of 18 – no estoppel. Legislation: Child Support (Registration and Collection) Act 1988 (Cth)
Family Law Act 1975 (Cth)
Public Governance, Performance and Accountability Act 2013
Cases cited: Commonwealth v Verwayen (1990) 170 CLR 394
Jones v the Child Support Registrar [2007] FCA 1732
Minister of Immigration Affairs v Kurtovic [1990] 21 FCR 193
Tobin & Tobin [2022] FedCFamC1F 220
Division: Division 2 General Federal Law Place: Sydney Number of paragraphs: 16 Date of hearing: 16 February 2024 Counsel for the Applicant: Mr N Ford Solicitor for the Applicant: Watts Mccray Lawyers Counsel for the First Respondent: Mr Z Heger Solicitor for the First Respondent: Sparke Helmore Lawyers Second Respondent: Did not appear ORDERS
SYG 1302 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CBH23
Applicant
AND: CHILD SUPPORT REGISTRAR
First Respondent
CBI23
Second Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
16 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The Notice to Produce dated 15 February 2024 is struck out.
2.The Notice of Appeal is dismissed.
3.The applicant pays the first respondent’s costs on a party-party basis in an amount agreed or assessed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
Note: Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in child support review proceedings.
IT IS NOTED that publication of this judgment under a pseudonym is approved pursuant to s 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These are child support proceedings that were commenced by a notice of appeal filed on 11 August 2023 and raise two grounds of appeal in the amended notice of appeal filed 15 December 2023 as follows:
(a)The power to collect overseas child maintenance rests upon the Child Support (Registration and Collection) Act 1988 (Cth) s18A. Pursuant to Section 18A a liability is a registrable overseas maintenance liability if it is a liability of a parent or stepparent of a child to pay a periodic amount for the maintenance of the child. The specific reference in this section to a “child” precludes Services Australia from having the power to collect or enforce payments for the maintenance of an individual over the age of 18. Therefore, as the debt that the Child Support Registrar is relying upon to enforce is invalid, there is no basis for the issuing of a Departure Prohibition Order.
(b)Services Australia represented to the Applicant that his debt was settled, and that as at 3 February 2022, he had no child support debt. Based upon this representation by Services Australia, an estoppel has arisen precluding the enforcement of any further debt that is said to have arisen prior to that date. The case of Commonwealth v Verwayen (1990) 170 CLR 394 applies and results in the government waiving rights, and an estoppel arises precluding the assertion of a position contrary to a representation made. Therefore, if an estoppel arises, Services Australia has no power to enforce any debt and as such, the basis for a Departure Prohibition Order is null and void.
The background to the proceedings is usefully contained paragraphs [10]-[27] in the submissions of the first respondent set out below:
10. The applicant and second respondent (mother) are the separated parents of [X] (born 2003) (child). The applicant is a resident of [Country B] and the mother resides with the child in Perth, all having previously resided in the United Kingdom.
11. [In] 2009, the Family Division of the High Court of Justice of England and Wales made orders by consent providing, inter alia, for the applicant’s payment of periodical payments to the mother for the benefit of the child until he reached the age of 18 or finished “full-time tertiary education to first degree level, whichever the later” (2009 UK orders).That order for maintenance to continue throughout the child’s tertiary studies, despite being made by consent, is the order which the applicant now seeks to avoid.
12. [In] 2012, the same Court granted the mother permission to remove the child to live with her in Perth and made further orders dealing with the care of the child (2012 UK orders). It would appear that the mother relocated with the child to Perth later that year because [in late] 2012, orders mirroring the 2012 UK orders were made by consent by the Family Court of Western Australia.
13. [In] 2017, the mother applied to the Agency for registration and enforcement of the maintenance liability arising under the 2009 UK orders. [In early] 2017, the application was accepted with effect from the date of application. The initial “registered maintenance liability” was $2,744.70 per month. The applicant made no payments towards the monthly liability, which amounts became debts due to the Commonwealth.
14. On 27 June 2018, a delegate of the Registrar made a DPO preventing the applicant’s departure from Australia under s 72D of the Collection Act (2018 DPO).
15. The applicant (through his then solicitors) entered negotiations with the Agency in late 2021 regarding the child support debt that had accrued to that point. On 30 November 2021, the applicant’s solicitor [Ms C] called an officer of Services Australia (Agency). The officer’s contemporaneous note of that call appears at Annexure 1 of the Affidavit. Relevantly, the officer explained to [Ms C] that:
(a) The case had ended [in] 2021 just before the child turned 18, but the Agency had been advised that the child was enrolled in university and so the case would need to be restarted from [early] 2021 with a new monthly liability of $4,523.49 (historical and ongoing restart liabilities).
(b) The Agency would be backdating 3 years of the consumer price index (CPI) for the registered liability amounts for 2019, 2020 and 2021 (historical CPI liability).
(c) As at that date, the applicant owed $164,986.25 in maintenance and $33,373.86 in late payment penalties (LPP), “which [did] not include” the above liabilities.
(d) If the applicant had the capacity to clear the maintenance debt of $164,986.25, which he owed “prior to us loading on the new monthly liability and CPI” (which, it is submitted, is a reference to the historical and ongoing restart liabilities and historical CPI liability) a submission could be made to a delegate of the Registrar for the remission of the LPP.
(e) The Agency was looking at “finalising the new monthly liability and CPI arrears… perhaps in the next week” (again a reference to the historical and ongoing restart liabilities and historical CPI liability), and if the maintenance debt was cleared and the LPP remitted, the Agency could enter into an acceptable payment arrangement for the “current liability and CPI arrears” (again a reference to the historical and ongoing restart and historical CPI liabilities).
16. [In late] 2021, [Ms C] wrote to the Agency confirming the matters discussed with the officer [in late] 2021. In that correspondence, [Ms C] communicated a proposal on the applicant’s behalf to pay the outstanding maintenance debt on the understanding that the LPP would be remitted and the 2018 DPO revoked. [Ms C] advised that the applicant proposed to address the historical and ongoing restart and historical CPI liabilities separately and “reserve[d] his right in respect of same”.
17. [In late] 2021, an officer of the Agency telephoned [Ms C] to discuss her correspondence from two days prior.9 The record of the call notes that:
(a) [Ms C] indicated that the applicant would pay $82,493.13 on 15 December 2021, and a further, identical amount on 30 January 2022.
(b) She also advised that the “other payments that will accrue will be paid for separately”, and that the applicant wished for the LPP to be remitted and the 2018 DPO revoked.
(c) The officer confirmed that once the 2018 DPO was revoked, letters would be sent “to confirm no debt and DPO revoked”.
18. Also on 10 December 2021, the same officer made a decision under s 63 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act), noting the debt of $199,323.90 and deciding to accept the applicant’s proposal of 8 December 2021 to make two payments of $82,493.13 and for the LPP to be remitted.
19. A Child Support Payer Transaction Statement issued on 29 March 2022 records that the Agency received from the applicant an amount of $82,493.12 on 17 December 2021, and a further $82,493.13 on 31 January 2022. The combined $164,986.25 reflected the applicant’s maintenance debt that had accrued from the commencement of the child support case until the child turned 18 in 2021 (when the case was ended in error), minus the LPP which was remitted in full on 3 February 2022. Having repaid the maintenance debt, the applicant was notified (as [Ms C] had been told on 10 December 2021 would occur) on 3 February 2022 that the 2018 DPO had been revoked on the basis that he “[did] not have a child support liability debt”.
20. For reasons explained further below, the Registrar submits that it was clear that this settlement related to the maintenance debt of $164,986.25 only, and that the resolution of the historical and ongoing restart and historical CPI liabilities was to be addressed separately in the future.
21. Those liabilities were addressed [in] 2022, when the Agency wrote to the applicant confirming that it had made an error in ending the child support case. The Agency explained that the case had been ended in error [in] 2021, the day before the child turned 18, despite the mother requesting in late 2020 that the case be extended until the child completed his full-time education in December 2024, for which she also provided evidence. The Agency further explained that restarting the case from 2021 created a debt of $48,420.85 (historical restart liability), that updated indexation increases from 1 January 2019 created arrears of $17,198.65 (historical CPI liability), and that the current monthly liability from 1 January 2022 was $4,746.78 (ongoing restart liability). The Agency noted that it had been unsuccessful in its attempts to contact the applicant and invited him to contact the Agency to discuss a suitable payment arrangement.
22. On 31 March 2022, the Agency wrote to the applicant to advise, inter alia, that the mother had requested the collection of arrears from the applicant for the period 1 November 2015 to 28 February 2017 in the amount of $44,166.14 (pre-registration arrears). The Agency requested the applicant contact it by 5 May 2022 and that otherwise it would proceed to register the pre-registration arrears for collection.
23. On 10 and 12 May 2022, the applicant’s new (and current) solicitors wrote to the Agency:
(a) requesting a copy of the “application” to enforce a court order which led to the restarting of the child support case and a copy of the request to collect arrears;
(b)seeking confirmation as to the legal basis for enforcing the order, claiming that s 28A of the Collection Act precluded recovery in the circumstances; and
(c)asserting that the Agency was “stopped” from seeking payment of further arrears in circumstances where the applicant had negotiated in good faith “a complete payment of all arrears outstanding.
24.On 20 May 2022, the Agency responded to the letters of 10 and 12 May 2022. The Agency:
(a) refused to provide a copy of the “arrears statement” and the letter regarding the child’s education on privacy grounds;
(b) stated that decisions in relation to overseas maintenance liabilities are made under ss 4, 18A, 28(1)(d) and 28(1)(e) of the Collection Act, and reg 11 of the Child Support Registration and Collection) Regulations 2018 (Collection Regulations);
(c)referred to contact with [Ms C] on 30 November 2021 to first notify of the errors in ending the child support case and not adjusting the liability for inflation increases and to advise that the case would be restarted from 2021; and
(d) requested the applicant to contact the Agency by 15 June 2022 to discuss the request to collect the pre-registration arrears, otherwise the arrears would be registered.
25. On 23 June 2022, the applicant wrote to the Agency again disputing the Agency’s power to collect the amounts owed. On 3 August 2022, the Agency wrote to the applicant advising him that it had accepted the mother’s application to register the pre-registration arrears that had accrued in the period between 1 November 2015 and 2 March 2017.
26. The applicant objected, under s 80 of the Collection Act, to the decisions made on 28 March 2022 to restart the case, and the decision on 3 August 2022 to register for collection the pre-registration arrears. On 21 December 2022, an objections officer disallowed the objection to the decisions to restart the child support case and to increase arrears for the period prior to the commencement of the child support case. The objections officer found that the registration of the liability in respect of the child was done in accordance with the child support law, as was the decision to collect arrears for the period 1 November 2015 to 28 February 2017.
27. On 25 March 2023, a delegate of the Registrar made the 2023 DPO in respect of the applicant under s 72D of the Collection Act.20
The applicant, in support of the appeal relied upon, relevantly, an affidavit of 14 August 2023, in which the applicant annexed the communication sent on 25 March 2023, attaching the departure prohibition order, also dated 25 March 2023, albeit the order commences on 24 March 2023.
The applicant identified that there is one child of the relationship with the second respondent named X, born in 2003. The applicant referred to the 2009 orders made following the breakdown of his marriage with the second respondent, a copy of which was annexed to his affidavit.
The applicant affidavit relevantly provided in paragraphs [4]-[19] as follows (albeit paragraphs 8 and 10 were admitted as submission only):
4.Following the breakdown of my marriage with [CBI23], consent orders were made in 2009 in the United Kingdom (“the 2009 orders”) in relation to financial matters between us. Annexed hereto and marked with the letter “[CBI23]-1” are the 2009 orders.
5.Clause 2(ii) of the 2009 orders required me to pay “periodical payments” to [CBI23] “for the benefit of [X]… until he shall turn 18 or finish full-time tertiary education to first degree level, whichever the later.” From the time the 2009 orders were made, I paid the court ordered periodical payments to [CBI23] for [X]’s benefit.
6.[CBI23] and [X] relocated to Perth, Australia in 2012 and an order was made by the UK High Court of Justice in respect of such relocation, with a “mirror” order made by the Family Court of Western Australia. Annexed hereto and marked with the letter “[CBH23]-2” are copies of such Order (UK 2012 and Western Australia August 2012). Following this move, I continue to make direct payments to [CBI23] for the benefit of [X] in accordance with the 2009 Orders. This arrangement continued up until 2015, when there was a breakdown in communication. At around this time I ceased to be able to spend time with [X] as a result of the actions of [CBI23], notwithstanding the court orders in place.
7.In order about 2017 [CBI23] initiating contact with the agency who registered the 2009 orders for collection, as an overseas maintenance liability, as and from 2 March 2017 and subsequently pursued child support payments from me. Annexed hereto and marked with the letter “[CBH23]-3” are copies of letter from the Agency dated 14 March 2017 and 24 March 2017.
8.In late 2021, and following negotiations, an amount that I would pay was agreed upon between the Agency and me to settle all arrears of the child support to that date, in circumstances where, by that time, [X] had turned 18 [in] 2021. I paid the amount agreed in two tranches, on 17 December 2021 and 28 January 2022. After making these payments, I received a statement from the Agency, dated 19 February 2022 indicating that as a result of the payments made, the balance of my Child Support Account was $0.00 and a statement from the Agency dated 29 March 2022 confirming the two payments, the remission of all penalties and interest and the zero balance. I also received a letter dated 3 February 2022 advising that the Departure Prohibition Order previously in place, had been revoked. Annexed hereto and marked with the letter "[CBH23]-4" are copies of the letter dated 3 February 2022 and statements dated 19 February 2022 and 29 March 2022, which both confirm payments I made had the effect of completing my obligations in relation to the payment of child support.
9.[In early] 2022, I wrote to [CBI23] seeking to discuss [X]'s tertiary education and offering to support him in pursuing a University degree. Annexed hereto and marked with the letter "[CBH23]-5" is a copy of my letter. I have not received a response to this letter nor any confirmation from [CBI23] or from [X] of his enrolment or otherwise in full-time tertiary education to first degree level.
10.Following the payments made to settle all outstanding child support liabilities, I received a letter from the Agency dated 28 March 2022 advising they had "made an error" ending my liability [in] 2021, the day before [X]'s 18th birthday and would be extending my liability until [X] finishes his first tertiary degree. I was not provided with evidence apparently received by the Agency, and referred to in the letter, as to [X] being enrolled in full time tertiary study. I was provided with the statements referred to above showing the nil balance on my account when my case was ended [in] 2021 but with the addition of:
a.An amount owing for the period between 01 February 2022- 28 February 2022, following the restarting of my case; and
b.arrears of $65,842.80 for an asserted period from 1 January 2019 - 31 January 2022 and to comprise payments asserted to be due from the time the case had been ended until 31 January 2022 ($48,420.j85) but also a sum of $17,198.65 described as arising because "we updated the CPI increases from 1 January 2019 until the current 2022 CPI increase."
notwithstanding the settlement of all outstanding child support due, via the two payments referred to above, and the advice of my account having a nil balance. Annexed hereto and marked with the letter "[CBH23]-6" is the letter from the Agency dated 28 March 2022.
11.Then, on 31 March 2022, I received further correspondence from the Agency advising that they had received an arrears statement from [CBI23] in the amount of $44,166.14 for the period between 1 November 2015 to 28 February 2017 (being for a period prior to the registration of the 2009 orders as an overseas maintenance liability) and seeking to discuss this statement with me before finalizing the registration of it. Annexed hereto and marked with the letter "[CBH23]-7" is a letter from the Agency dated 31 March 2022.
12.Following receipt of the letter from the Agency dated 28 March 2022, my lawyers wrote to the Agency on 10 May 2022 in response to such letter. This letter requested the evidence the Agency relied upon in coming to their finding that I was liable for payments since [X] turned 18, as well as any evidence relating to [X]'s enrolment in tertiary degree. Annexed hereto and marked with the letter "[CBH23]-8" is a letter from my lawyers to the Agency dated 10 May 2022.
13.On 12 May 2022, my lawyers wrote to the Agency in response to their letter dated 31 March 2022 requesting the arrears statement referred to as having been provided by [CBI23], be provided to me and making a claim of estoppel following the payment by me of all outstanding child support liabilities and the agreed nil balance in respect of my child support account. Annexed hereto and marked with the letter "[CBH23]-9" is a letter from my lawyers to the Agency dated 12 May 2022.
14.By letter dated 20 May 2022, the Agency refused to provide the evidence I had requested, via the two above-mentioned letters from my lawyers, being the basis upon which it was alleged I owed further child support, namely proof of [X]'s enrolment in full time tertiary education and the arrears statement asserted to have been provided by [CBI23]. Annexed hereto and marked with the letter “[CBH23]-10” is a letter form the Agency to me dated 20 May 2022.
15.On 23 June 2022, my lawyers sent a letter to the Agency stating that I exercised my objection rights on the basis that:
a.The Agency does not have the power to collect "adult child maintenance" being maintenance in respect of a child over the age of 18 relying on s 18A of the Child Support (Registration and Collection) Act 1988.
b.The Agency does not have the power to collect arrears arising from a registrable overseas maintenance liability relying on s 28 of the Child Support (Registration and Collection) Act 1988.
Annexed hereto and marked with the letter “[CBH23]-11” is the objection letter from my lawyers to the Agency dated 23 June 2022, setting out in full my objection.
16.On 27 June 2022, the Agency advised my objection was rejected on the basis that the objection was made on my behalf by my lawyers who do not hold objection rights, even though they were acting on my behalf and on my instructions. I remedied this situation by resending my objection, in my name this time, to the Agency, on 12 August 2022.
17.During this period, and notwithstanding my objection was also in respect to these alleged arrears, I received a letter from the Agency informing me that the arrears applied for by [CBI23], to which I was in the process of objecting, had been accepted, meaning the Agency deemed that I now owed the further $44,166.14 which [CBI23] claimed.
18.On 21 December 2022, the Agency rejected all aspects of my objection. Annexed hereto and marked with the letter "[CBH23]-12" is the letter from the Agency disallowing my objection.
19.On 25 March 2023, the Agency issued a Departure Prohibition Order under section 72D of the Child Support (Registration and Collection) Act 1988 on the basis that I have a child support debt. Annexed hereto and marked with the letter "[CBH23]-13" is the letter from the Agency dated 25 March 2023.
The applicant’s counsel, Mr Ford, acknowledge that this is an appeal in the original jurisdiction of Court under section 72Q of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”) and identified the relief that might be available under section 72S of the Act.
Mr Ford accepted the observations made by the learned Emmett J in Jones v the Child Support Registrar [2007] FCA 1732 at [5] – [6]. The applicant in the present case needed to demonstrate an absence of one of the requirements in section 72D(1) of the Collection Act which, relevantly, is as follows:
72D Registrar may make departure prohibition orders
(1) The Registrar may make an order (a departure prohibition order) prohibiting a person from departing from Australia for a foreign country if:
(a) the person has a child support liability or carer liability; and
(b) the person has not made arrangements satisfactory to the Registrar for the liability to be wholly discharged; and
(c) the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i) child support debts arising from a registrable maintenance liability under section 17; or
(ii) a child support debt arising from a registrable maintenance liability under section 17A; or
(iii) one or more child support debts arising from a registrable overseas maintenance liability under subsection 18A(1), paragraph 18A(3)(a) or subsection 18A(4) (insofar as subsection 18A(4) relates to subsection 18A(1) or paragraph 18A(3)(a)); or
(iv) a carer liability; and
(d) the Registrar believes on reasonable grounds that it is desirable to make the order for the purpose of ensuring that the person does not depart from Australia for a foreign country without:
(i) wholly discharging the child support liability or carer liability; or
(ii) making arrangements satisfactory to the Registrar for the child support liability or carer liability to be wholly discharged.
The argument, in essence, in relation to the amended notice of appeal in ground 1, relevantly, turns upon section 18A of the Collection Act, which is as follows:
18A Liability in relation to registrable overseas maintenance liabilities
(1) A liability is a registrable overseas maintenance liability if it is:
(a) a liability of a parent or step‑parent of a child to pay a periodic amount for the maintenance of the child; and
(b) an overseas maintenance liability.
(2) A liability is a registrable overseas maintenance liability if it is:
(a) a liability of a party to a marriage to pay a periodic amount for the maintenance of the other party to the marriage; and
(b) an overseas maintenance liability.
(3) A liability is a registrable overseas maintenance liability if it is:
(a) an agency reimbursement liability; or
(b) a penalty, within the meaning of a provision that is prescribed by the regulations, of an international treaty that is so prescribed, that is payable under the law of a foreign country that is a party to the treaty.
(4) A liability is a registrable overseas maintenance liability if it is an amount that is in arrears under a liability mentioned in subsection (1) or (2) or paragraph (3)(a).
(5) This section is subject to section 19.
Mr Ford provided detailed written and oral submissions, effectively, advancing a construction that the reference in section 18A to “child” should be given a meaning similar to that of “child” found in the Family Law Act 1975 (Cth) and requires someone to be under the age of 18.
Section 18A is part of the provisions found in the Collection Act under Part III – Registration of maintenance liabilities. Relevantly, section 4 has a definition of “terminating event”, relevantly, as follows:
terminating event, in relation to an enforceable maintenance liability, means:
(a) the death of the payer unless, under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, the liability is to continue after the death of the payer;
(b) the death of the person to whose maintenance the liability relates;
(c) in a case where the liability relates to the maintenance of a child—the happening of any of the following events:
(i) the child attaining 18 years of age unless:
(A) under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, the liability is to continue after the child attains that age; or
(B) section 151D of the Assessment Act applies in relation to the child;
Note: Section 151D of the Assessment Act modifies the normal rules about terminating events in relation to certain children who turn 18 during a year in which the child is in full‑time secondary education.
(ii) the adoption or marriage of the child unless, under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, the liability is to continue after the adoption or marriage of the child;
(ca) in a case where section 151D of the Assessment Act applies to the child because of an application made under section 151B of that Act—the last day of the secondary school year (within the meaning of that Act) to which the application relates; or
Note: Section 151B of the Assessment Act provides for a person to apply to continue an administrative assessment or child support agreement under that Act in force after a child’s 18th birthday. If the application is granted, section 151D of that Act modifies the normal rules about terminating events.
(cb) if the liability is of a kind mentioned in section 18A and one only of the payer and payee is a resident of Australia—the payer or payee ceases to be a resident of Australia; or
(cc) if the liability is of a kind mentioned in section 18A and both the payer and the payee are residents of Australia—both cease to be residents of Australia; or
(cd) if the liability is of a kind mentioned in section 18A and either the payer or the payee is a resident of a reciprocating jurisdiction—the payer or the payee (as the case may be) ceases to be a resident of the reciprocating jurisdiction and does not, immediately after so ceasing, become a resident of another reciprocating jurisdiction or of Australia; or
(ce) if the liability is of a kind mentioned in section 18A and either the payer or the payee is a resident of a reciprocating jurisdiction—the reciprocating jurisdiction is declared in regulations made for the purposes of section 30A to be an excepted reciprocating jurisdiction in which enforcement of a liability would be inconsistent with the international maintenance arrangement with the jurisdiction; or
(d) in a case where the liability relates to the maintenance of a party to a marriage—the re‑marriage of the person unless, under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, the liability is to continue after the re‑marriage of the person; or
(daa) in a case where the liability relates to the maintenance of a party to a de facto relationship—the marriage of the person unless, under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, the liability is to continue after the marriage of the person; or
(e) any other event the happening of which operates, under the terms and conditions of the relevant court order or maintenance agreement or otherwise by force of law, to end the liability;
but does not include:
(f) the making by, or registration in, a court of an order; or
(g) the registration in, or approval by, a court of a maintenance agreement.
That provision in section 4 as to “terminating event” clearly anticipates the potential enforcement of orders in circumstances where the child has, in fact, attained the age of 18 years.
On its proper construction, in the context of the Collection Act and the language used, the reference to “child” in section 18A concerns a relationship between the relevant parent and step-parent. It does not require the status of being a “child under 18”. The construction advanced by the applicant would effectively mean that the overseas maintenance liabilities, notwithstanding the intention to facilitate the enforcement of the same where a child has turned 18 become unenforceable and cannot give rise to a relevant debt the subject of the Collection Act. That construction doesn’t advance the object and purpose of the Collection Act.
The construction advanced by the first respondent accords with the text and language found in section 18A as requiring no more than the relevant relationship, lately parent or step-parent. The Court was taken to other provisions and arguments in support of the construction advanced by Mr Ford. The Court doesn’t find the decision in Tobin & Tobin [2022] FedCFamC1F 220 to be of assistance in determining the construction issue in the present case. The court does regard section 98A of the Collection Act as supporting the construction advanced by the first respondent which the court has accepted in these circumstances. The court finds that ground 1 of the amended notice of appeal is not made out.
The second argument advanced by the applicant effectively assumes that the conduct that was engaged in is capable of giving rise to an estoppel notwithstanding that it was administrative action and that there was a statutory duty to pursue recovery under s11 of the Public Governance, Performance and Accountability Act 2013 (NSW). The case of Commonwealth v Verwayen (1990) 170 CLR 394 in relation to a statute of limitation is a very different proposition from saying that an estoppel can arise to prevent administrative action. The court accepts that the principles were correctly identified by the learned Gummow J as identified by the first respondent in Minister of Immigration Affairs v Kurtovic [1990] 21 FCR 193 at [208]. Whilst the Court understands the disappointment of the applicant in having identified the proposition that he had discharged his child support debt liabilities, the first respondent is not the subject of a doctrine of estoppel to prevent discharge of its statutory duties in the exercise of administrative action. Even if the Court were to adopt a wider legal theory in relation to administrative action and found a representation that he had no child support debt, there was no relevant reliance to his detriment because all he did was discharge outstanding liabilities which were already existing.
In these circumstances, even if a representation could be extracted that he was not to be held liable for any existing child support debt that might, in fact, exist, no relevant reliance has occurred that would warrant giving rise to the proposition that the first respondent is the subject of an estoppel preventing the raising of other child support debt, as occurred in the present case. Ground 2 in the amended notice of appeal is not made out. Accordingly, the Court has made the above orders.
The Court also notes that a notice to produce was called upon at the commencement of the hearing. The notice to produce was served out of time being 15 February 2024. Counsel for the applicant sought to support that paragraphs 1 and 2 may be relevant to meeting criteria in respect of the nature of the overseas order. The grounds of the amended notice of appeal do not raise any issues of the kind the subject of paragraphs 1 and 2 and the Court accepts the applicant’s submission that paragraph 3 on its face is far too broad and not appropriate. The Court is satisfied that the notice to produce should be set aside. The Court is not persuaded that the material sought is relevant to the two questions advanced in the amended notice of appeal. The Court otherwise find the categories of information sought are a fishing exercise to raise arguments outside of the scope of the amended notice of appeal. For these reasons the notice to produce was dismissed.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the published oral reasons for Judgment of Judge Street. Associate:
Dated: 8 March 2024
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