Child Support Registrar & Higgins and Anor
[2016] FamCAFC 2
•22 January 2016
FAMILY COURT OF AUSTRALIA
| CHILD SUPPORT REGISTRAR & HIGGINS AND ANOR | [2016] FamCAFC 2 |
| FAMILY LAW – APPEAL – CHILD SUPPORT – Application for leave to appeal – Application for extension of time – Application to adduce further evidence – Where the Child Support Registrar appeals orders of the Federal Circuit Court discharging the father’s obligation to pay Child Support arrears – Where the mother and child live in New Zealand – Where the Child Support obligation derives from a New Zealand assessment – Where the relevant New Zealand agency paid the mother amounts owing pursuant to the father’s Child Support liability and sought reimbursement – Where the father’s New Zealand child support liability is an “agency reimbursement liability” within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) – Where the orders were based on fundamental errors and misconceptions and made without power – Where leave to appeal granted – Where application for extension of time and application to adduce further evidence granted – Appeal allowed – All orders made by his Honour on 31 January 2013, 21 May 2013 and 29 September 2014 set aside. |
| Child Support (Assessment) Act 1989 (Cth) Child Support (Registration and Collection) Act 1988 (Cth) Family Law Act 1975 (Cth) Family Law Regulations 1984 (Cth) |
Agreement between the Government of Australia and the Government of New Zealand on Child and Spousal Maintenance (signed in Canberra, 12 April 2000)
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 |
Repatriation Commission v Nation (1995) 57 FCR 25
Rutherford and Rutherford (1991) FLC 92-255
Strauss v Strauss (1998) FLC 92-797
| APPELLANT: | Child Support Registrar |
| FIRSTRESPONDENT: | Mr Higgins |
| SECOND RESPONDENT: | Ms Turner |
| FILE NUMBER: | MLC | 8649 | of | 2012 |
| APPEAL NUMBER: | SOA | 75 | of | 2014 |
| SOA | 41 | of | 2015 |
| DATE DELIVERED: | 22 January 2016 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Ainslie-Wallace & Murphy JJ |
| HEARING DATE: | 13 July 2015 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT ORDER DATE: | 31 January 2013 21 May 2013 |
| LOWER COURT JUDGMENT DATE: | 29 September 2014 |
| LOWER COURT MNC: | [2014] FCCA 2635 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Wood |
| SOLICITOR FOR THE APPELLANT: | Australian Government Solicitor |
| THE FIRST RESPONDENT: | In person |
| THE SECOND RESPONDENT: | No appearance |
Orders
The Application in an Appeal SOA 41 of 2015 for an extension of time filed by the Child Support Registrar on 22 June 2015 be granted.
The Application in an Appeal SOA 75 of 2014 to adduce further evidence filed by the Child Support Registrar on 26 June 2015 be granted.
Leave to Appeal is granted in respect of each of Appeal SOA 75 of 2014 and SOA 41 of 2015.
Appeal SOA 75 of 2014 be allowed
Appeal SOA 41 of 2015 be allowed.
The orders of Judge Burchardt made on 31 January 2013, 21 May 2013 and 29 September 2014 be all set aside.
Each party shall bear their own costs of and incidental to each appeal.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Child Support Registrar & Higgins and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 75 of 2014 and SOA 41 of 2015
File Number: MLC 8649 of 2012
| Child Support Registrar |
Appellant
And
| Mr Higgins |
First Respondent
And
Ms Turner
Second Respondent
REASONS FOR JUDGMENT
In 2000 an agreement was signed between Australia and New Zealand which sought to address the “serious practical and legal difficulties” in the “enforcement abroad of maintenance decisions”. Measures within the agreement are designed to “facilitate recognition and enforcement of decisions” and to “provide for mutual co-operation in the collection and payment of monies in relation to”, relevantly, child support made in each of those countries.[1] The agreement’s Articles have subsequently been incorporated into the laws of each country.[2]
[1]The “Australia – New Zealand Agreement”. Defined as such in reg 2, Child Support (Registration and Collection Regulations 1988 (Cth) (“the CSRC”). The agreement is Schedule 1 to those Regulations; quotations from the Preamble.
[2]In Australia, relevant to this appeal: Family Law Act 1975 (Cth) (“the FLA”) s 110 and s 111AA; Family Law Regulations 1984 (Cth) (“the Regulations”) regs 36, 38 and 38A.
A fundamental premise of the laws giving recognition to the agreement is that while the child support assessments, liabilities and orders of one country can be subject to applications made in the other country, any orders made in that country can only be given binding effect by the courts of the country from which the assessments, liabilities or orders originated. Any Australian order that seeks to alter a New Zealand assessment, liability or order is provisional only and of no force or effect until confirmed by a New Zealand court.[3]
[3] The Regulations, reg 38A.
The Child Support Registrar (“the CSR”) contends that orders made in the Federal Circuit Court by Judge Burchardt on 31 January 2013, 21 May 2013 and 29 September 2014 all misapprehend that fundamental premise and, as a consequence, the orders were made without power and are otherwise attended by errors of law.
These reasons demonstrate why that contention is well founded and why the orders must be set aside.
The CSR’s Notices of Appeal seek leave to appeal. In oral argument, however, counsel on his behalf suggested that leave may not in fact be necessary. It will be obvious that we consider that the issues raised before us involve errors of principle and are of considerable general importance. As a consequence, if leave to appeal is required, it should be granted.[4] We postpone our consideration of whether leave is in fact required until after our discussion of the relevant legislative framework upon which, in part, the answer to that question depends.
[4]See Rutherford and Rutherford (1991) FLC 92-255, where this Court applied Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170.
Applications In The Appeal
Initially, the CSR sought leave to appeal only the orders made by his Honour on 29 September 2014. The CSR was not a party to proceedings before 2014; he was neither named in, nor purportedly bound by, the orders made on either 31 January or 21 May 2013. For reasons we will shortly develop, his Honour’s 2013 orders had, in our view, no substantive force or effect in New Zealand and the relevant New Zealand authorities had advised to that effect. Those circumstances dissuaded the CSR from seeking leave to appeal either of those two earlier orders.
However, in light of the issues raised in respect of the 2014 orders, the CSR determined subsequently that leave should be sought to extend time to appeal those earlier orders. An Application in an Appeal was filed to that effect. A further Application in an Appeal filed by the CSR sought to adduce further evidence, effectively as an inevitable consequence of the need to put further material before the court so as to demonstrate error in respect of those earlier orders.
By reason of the applicable legislation properly applied, the CSR was in fact a person affected by the 2013 orders. The failure to appeal within time is adequately explained. There is a need for clarity about the status and effect of the 2013 orders on the part of both the Australian and New Zealand authorities. The principles emanating from the appeal against the 29 September 2014 orders are important and of general application and, as the CSR submits, the 2013 orders can be seen, in effect, as part of a continuum commencing with findings made on 31 January and the orders made that day, and culminating in the 29 September 2014 orders. The interests of justice point to leave being granted to extend time.
The father, who represents himself before us, did not oppose the granting of leave. No prejudice is occasioned to him by its grant; the issues involved in a consideration of those earlier orders are effectively identical to those of which he already has notice. Similarly, the father did not object to the granting of leave to adduce further evidence.
Leave was thus granted in each respect at the hearing of the appeal.
The Father’s Child Support Obligation and His Application
Mr Higgins (“the father”) was required to meet child support obligations in respect of his daughter who was born in 2001 of a brief de facto relationship between her parents, which ended in 2002.[5]
[5]Or perhaps earlier. There is a dispute about the length of the relationship and the date of its cessation, neither of which is relevant for present purposes.
The relationship was conducted in Australia. Ms Turner (“the mother”) is a New Zealand national and returned there when the relationship with the father broke down. She and the child have lived there since. The father lives in Australia and has done so at all times material to these proceedings. The father’s child support obligations derive from a New Zealand assessment.
The originating process filed by the father sought five substantive orders. However, he proceeded with an application for only two of those orders before his Honour. They were in these terms:
3.By way of Regulation 36 Family Law Regulations 1984 [“the Regulations”] (or other legislative measure), the child support arrears said to be owed by [the father] to [the mother] regarding [the child] … be hereby discharged and set at $ nil.
4.In the alternative to order 3 above, [the mother] (and her servants, agents and/or assigns – whether statutory or otherwise) be permanently stayed from enforcing those child support arrears (and associated penalties) said to be owing by [the father].
His Honour’s Three Orders And Their Genesis
The 31 January 2013 Orders
Proceedings had initially been commenced by the father in the Magistrates Court of Victoria. That court transferred the proceedings to the Federal Circuit Court and in doing so made an interim order purporting to stay the father’s obligations in respect of child support. That order was ultra vires but it was, in any event, discharged by the making of his Honour’s orders on 31 January 2013.
Those orders, and the subsequent 21 May 2013 orders, were each preceded and succeeded by advice from the relevant agencies in New Zealand to the effect that the court lacked the power to make the orders which it purported to make. Before his Honour heard any proceedings or made any orders, the father’s then solicitors were told that the Magistrates Court order would not be acted upon as it was made without power. The agency’s letter, dated 26 July 2012, pointed out that the application made “seeks final orders under Australian regulations which it seems if made would have no jurisdiction or impact on assessments raised under New Zealand Statute”.[6]
[6]Letter Inland Revenue Department (NZ), 26 July 2012, Exhibit SI-7 to Affidavit of further evidence, Sarah Irvine.
The agency’s letter also advised that “[d]ue to the above factors I believe an application to the New Zealand Family Court under section 104 of the Child Support Act 1991 [NZ] would be the best course of action for [the father]”. That advice was unheeded by the father and those advising him at the time. It was correct then and looks all the wiser now. Notwithstanding that advice, the father proceeded with his application for final orders before his Honour.
The orders made by his Honour on 31 January 2013 were expressed to be “final orders”[7] and were in these terms:
The [mother] (and her servants, agents and/or assigns – whether statutory [the CSR] or otherwise) be permanently stayed from enforcing any of the child support arrears (and any associated late payment penalties) said to be owed by [the father] to [the mother] regarding [the child born 2001] (Child Support Agency Case Reference No. …) – it being noted [the father] is still obliged to pay his ongoing child support assessment into the future as from the time assessed by the Child Support Agency.
[7]His Honour also referred to them as such in the course of the proceedings (Transcript of proceedings, 31 January 2013, p 10).
The father did not seek to make the CSR a party to those proceedings, the CSR was not served with the application and the orders did not seek to bind him.
The 21 May 2013 Orders
Subsequent to the making of the January orders, the practitioners representing the father were (again) advised by the relevant Australian department that the orders would not be transmitted to New Zealand by reason (again) of the orders not complying with the Regulations.
On 14 May 2013, presumably in response to that letter, an application was filed on behalf of the father seeking that the 31 January 2013 order be “rectified so as to comply with Regulations 36 and 38 and 38A of the [Regulations]”. In an affidavit accompanying the application, the father’s solicitor deposed, somewhat remarkably it might be thought, to the reason for the “rectification” being the avoidance of “what I consider to be a miscarriage of justice”.
The CSR has no record of having been served with that application or affidavit. The CSR was not named as a respondent to the application and no relief was sought against him.
On 21 May 2013, his Honour ordered (it might be noted under a cover sheet which records the tautology “Final Provisional Order”) that the 31 January 2013 order “be varied to provide as follows”. Thereafter the order reproduces the terms of the 31 January 2013 order save that the substantive paragraphs of the orders are preceded by the words “THE COURT PROVISIONALLY ORDERS THAT”. Whilst neither the application nor submissions on the father’s behalf made clear what power was sought to be invoked so as to “rectify” the order, his Honour considered that he was doing so “under the Slip Rule”.[8]
[8] Transcript of proceedings, 21 May 2013, p 3.
On that occasion, his Honour asked the solicitor for the father whether the orders were “interim orders” to which the solicitor replied, “…they’re called provisional orders. So I suppose our equivalent is interim”.[9] The reference to “our equivalent” appears to clearly posit “provisional orders” as a concept peculiar to New Zealand law. That is plainly incorrect as reference to the Regulations reveals. Moreover, the answer was also wrong in equating the concept of a “provisional order” with an “interim” order; the former is a creature of the Regulations and has the specific purpose and ambit defined within them.
[9] Ibid.
Events Subsequent to 21 May 2013 Resulting in the 29 September 2014 Orders
The attempts to “cure” the defects in the earlier orders did not (and plainly could not) do so. The father’s legal practitioners were told (again) why that was so in yet further correspondence from the NZ Ministry of Justice on 1 August 2014. (He was told, for example, that “the provisional order for a permanent stay is not in accordance with the Reciprocal Agreement…”).[10]
[10] Affidavit of Father’s solicitor, filed 11 August 2014, Annexure “RCMB 2”.
Consequent upon the contents of that correspondence, the father’s legal practitioners filed a further Application in a Case on 11 August 2014. That application sought, among other orders, that “the Final Order of the Federal Circuit Court Judge Burchardt made 31 January 2013 be reinstated”. The meaning of that application and the power sought to be invoked remains elusive.
It might well be argued that this application was incompetent by reason of his Honour being functus officio consequent upon the making of the “final” 21 May 2013 orders which purported to amend via “the slip rule” an order also expressed to be, and in effect purporting to be, final. The proceedings initiated by the application for final orders were, it might be argued, concluded by the making of those orders. If that is so, the father was not entitled to file an Application in a Case; there was, in fact, no longer a case. No ground of appeal makes any such assertion and counsel for the CSR did not seek to argue that point before us, preferring to focus on the issue of the court’s powers under the relevant legislation. We say no more about it.
On 29 September 2014, his Honour proceeded to make further orders referable to the father’s Application in a Case. No order to which we have been taken, whether made on 29 September 2014 or otherwise, discharged the “final” orders made on 21 May 2013. Yet, reference to the transcript, the extract of his Honour’s reasons, and the terms of the September 2014 orders ultimately made, suggest they were intended to, as it were, replace the 21 May 2013 order. His Honour was told by then counsel for the father during the proceedings that day, that the proceedings merely involved “remov[ing] the word provisional” from the orders previously made because “your original order was okay.” Neither statement is correct.
Ultimately, his Honour made the following orders on 29 September 2014:
1.The Registrar of the Child Support Agency be joined as a party to these proceedings.
2.The arrears of Child Support (including any assessed late payment penalties) said to be owed by [the father] to [the mother] regarding [the child] be discharged and revoked, the Court having found that no arrears exist.
3.The Child Support Registrar be stayed from enforcing and collecting any Child Support arrears (any associated late payment penalties) pending further order of this Court.
4.The further hearing of this matter be adjourned not before [a date in 2019].
5.This is a provisional order pursuant to Regulation 36, 38 and 38A of the Family Law Regulations and Article 11 of the Child Support (Reciprocal Agreement with Australia) Order 2000.
6.The Child Support Registrar credit [the father] with the payments for arrears already made by him against his ongoing Child Support liability.
The coversheet to the orders referred to the orders as an “interim order”. The substantive orders are not preceded by the usual assignation for interim orders (“until further order”) and nor is any substantive paragraph of the orders preceded by that, or any similar, assignation. However, as can be seen, paragraph 4 of the orders purported to adjourn “the further hearing of this matter” until “not before [a date in 2019]”. It is by no means clear what “matter” was being adjourned until not before that date. That date is the child’s 18th birthday which brings with it the end of on-going periodic child support obligations.
The Trial Judge’s Reasons
None of the orders made by his Honour was accompanied by reasons.
When the CSR filed their appeal against the 29 September 2014 orders, the Registrar of the Federal Circuit Court requested his Honour provide reasons for those orders and his Honour did so on 14 November 2014. His Honour there said:
27.The Registrar submitted that it would be very difficult to resolve the matter. The transcript speaks for itself. What will emerge from the transcript is that I was of the clear view that the applicant, so to speak, had all the merit and that I was seeking to find a practical way of giving effect to that conclusion.
28.In the end I acceded to the submissions of the applicant and made the orders that the applicant sought. I made it clear that I was going to accede to the orders sought, which were submitted to be within power, and leave it to an appellate process to correct if necessary.
29.Put shortly, I was then of the view that the applicant had made out his case on the facts. Doubtless the transcript of the proceeding which led me to that point of view will be made available to the Appeal Court. I was of the view that there was sufficient force in the submissions made by the applicant as to the utility and lawfulness of the orders that I was making, and I made them accordingly.
30.Any endeavour to expand these reasons for judgment beyond that admittedly somewhat short form expression runs every risk of creating reasons that were not in my mind at the time. Self-evidently I will not do so. I thought it was invidious that the applicant be the subject of garnisheeing in circumstances where I was quite satisfied he had no debt. In the ultimate that was the reason for my decision.
(Emphasis added)
There revealed is his Honour’s premise for not only the September 2014 orders but also for the 2013 orders, namely that the father “had no debt”.
His Honour also there gives force to the submission of the CSR before us that the 2014 orders should be seen, in effect, as part of a continuum to which we have earlier referred; the “conclusion” to which his Honour refers was one reached (at least initially) during the proceedings on 31 January 2013 and the giving of “practical effect” to that conclusion embraced the orders made that day and the two orders made subsequently on 21 May 2013 and 29 September 2014. As has been seen, the latter orders were plainly intended by his Honour to “cure” defects in their predecessors that saw the relevant New Zealand authorities refusing to recognise them or act upon them.
The Relevant Legislative Framework
The relevant New Zealand agency has here paid to the mother amounts owing pursuant to the father’s child support liability. It seeks reimbursement from the father, via the agency of the CSR. Those circumstances render the father’s New Zealand child support liability in Australia an “agency reimbursement liability” within the meaning of the Child Support (Registration and Collection) Act 1988 (Cth) (“the CSRC Act”).[11] It is, as a consequence, a “registerable overseas maintenance liability” within the meaning of that Act.[12] Such a liability includes arrears owing in respect of an agency reimbursement liability.[13]
[11] CSRC Act, s 4 – definition of “agency reimbursement liability”.
[12] CSRC Act, s 18A(3).
[13] CSRC Act, s 18A(4).
The father’s New Zealand liability had been registered by the CSR.[14] As such, it is a “registered maintenance liability”.[15] Once registered, the amounts owing by the father become “debts due to the Commonwealth” and they become so “in accordance with the particulars of the liability entered in the Child Support Register”.[16] “In particular, the amounts are payable by the payer at the payment rate entered in the Register under paragraph 26(2)(d) in respect of the periods entered in the register under paragraphs 26(2)(a) and (b)”.[17]
[14] CSRC Act, s 25.
[15] CSRC Act, s 4 – definition of “registered maintenance liability”.
[16] CSRC Act, s 30(1).
[17] CSRC Act, s 30(2).
Three matters central to the errors made by his Honour need to be understood. First, just as the father’s child support liability is, upon registration of the liability, not due to the mother (but, rather, to the Commonwealth), so too the mother was “no longer entitled to, and may not enforce payment of, amounts payable under the liability…”.[18] Secondly, the amounts owing by the father, including arrears, are determined by what is recorded in the Child Support Register.
[18] CSRC Act, s 30(3).
The third crucial matter necessary to be understood, and also central to errors made by his Honour, is that the status of the father’s liability as a “registered maintenance liability” emanating from it being a “registerable overseas maintenance liability”, gives rise to the application of specific legislative provisions which circumscribe an Australian court’s powers.
Section 111AA of the Family Law Act 1975 (Cth) (“the FLA”) provides relevantly that “a court must not determine an application for payment of child … maintenance” if the person seeking payment is habitually resident in New Zealand and the determination of the application “would require the court to make a decision mentioned in Article 1.2 of the Australia-New Zealand Agreement”. The latter includes, “a child support assessment issued by an administrative authority” and “an assessment, order or agreement suspending, modifying or revoking a decision” of that kind.[19]
[19] FLA, s 111AA(2).
Section 110 of the FLA permits relevant Regulations to be made. Specific Articles within the Australia-New Zealand Agreement are given effect by the Regulations.[20] Relevantly, regs 36, 38 and 38A all have application to the application brought by the father.
[20] Section 110 of the FLA permits relevant Regulations to be made – see, for example, s 110(2)(c).
The legislative framework just described gives rise to the following propositions relevant to the father’s application, the orders made by his Honour, and the issues central to the appeals before this Court:
·The father was entitled to make an application to an Australian court of competent jurisdiction for an order in respect of his child support obligations in New Zealand;[21]
·However, when reg 36 applies, as it does here, any such application must be restricted to orders “discharging, suspending, reviving or varying” his registered maintenance liability;[22]
·If the orders sought by the father meet that description, the court nevertheless cannot “determine” that application. Rather, the court’s only power is to make orders which are “provisional” and any such orders made must be expressed to be so;[23]
·In making provisional orders of the type to which the Regulation applies, the court must apply the law of Australia;[24]
·If a provisional order is made, it has no force or effect unless and until it is confirmed by a court of competent jurisdiction in New Zealand;[25]
·The New Zealand court may, according to the law of New Zealand, modify the provisional Australian order (or not) as that court might decide;[26]
·Only if the New Zealand court confirms the provisional order does it have force and effect in Australia;[27] and
·As a consequence, any effect upon the amount, terms and recoverability of the registered maintenance liability, otherwise particularised in the Australian Child Support Register,[28] is dependent, ultimately, upon the terms of the confirmatory New Zealand order.[29]
[21] The Regulations, reg 36.
[22] The Regulations, reg 36(2).
[23] FLA, s 111AA(2); the Regulations, regs 38(1), 38A(1) and (2)(a).
[24] The Regulations, reg 36(4)
[25] The Regulations, reg 38A(2)(b)
[26] Ibid.
[27] The Regulations, reg 38A(2)(b) and reg 38A(6).
[28] The CSRC Act, s 24ff.
[29] The Regulations, reg 38A(6).
The father’s application in the instant case was, then, confined to an application for orders of the specified type and the court’s powers to give effect to orders in respect of applications of that type was further significantly curtailed.
The Court’s Power Other Than Under the Regulations
As has been seen, the court’s power to make specified types of orders provisionally is found in the Regulations.
The father’s initiating application suggests, at least in part, that the court’s source of power might reside in “other legislative measure[s]”.[30] Those “legislative measures” were not specified there or at any time subsequently. The second order sought was for a “permanent stay”. It did not specify the power said to enable the making of such an order. Plainly however, any such order does not fall within the orders permitted by reg 36.
[30]It might also be observed that paragraph 5 of the final orders sought was in these terms: “Any further order (whether under the Family Law Act, Child Support Assessment/ Registration Acts, Common Law or otherwise) required to do justice between the parties”.
A Potential Source of Power Other Than the Regulations?
Counsel for the CSR submits, we think accurately, that “in the end, it is difficult to know whether his Honour’s orders were purportedly made under reg 36 or, perhaps, s 111C”. Reference to the 2013 orders and to order 3 made on 29 September 2014 suggests that section of the CSRC Act as the only other potential source of power for the orders which were made.[31] As a consequence, counsel directed submissions as to whether this section gives power to the court to make orders of the type sought.
[31] Section 111C of the CSRC Act is headed “Stay Orders”. Its terms will be referred to below.
His Honour was not assisted by any adequate submissions as to his source of power by those representing the father during any of the three proceedings before him. The court’s powers were not the subject of clarification (or indeed discussion) at all in the 2013 proceedings. In the 29 September 2014 proceedings, a suggestion was made by then counsel for the father that the court’s power lay beyond the Regulations:
COUNSEL: It’s a misconception of your Honour’s order in 2013.
HIS HONOUR: Yes
COUNSEL: Because the order is construed by the child support agency as having been made under regulation 36.
HIS HONOUR: Yes
COUNSEL: It was not. That application was in the alternative and it actually sought five heads of relief.[32]
That exchange appears to found the earlier contention by counsel that “your original order was okay” which was later supplemented by the submission that “I think all you have to do is to remove the word provisional”.[33]
[32] Transcript of proceedings, 29 September 2014, pp 3-4.
[33] Ibid.
Despite those exchanges, after the matter was stood down temporarily (and presumably after discussions between counsel for the father and the solicitor for the CSR during the interval), the resumed proceedings commenced by counsel confirming to his Honour that he had “…taken up the invitation extended to you to proceed under regulations 36, 38 and 38A”.[34] Again, however, no specific head of power outside of the Regulations was mentioned save that counsel referred to the discussion had with the solicitor for the CSR outside the courtroom who had there referred counsel to s 111C of the CSRC Act.
[34] Ibid, p 11.
The solicitor had told his Honour that “…the proper process … is for the applicant to make the application under regulation 36 [and] for it to then go to New Zealand – there the [mother] gets her chance to have her say about all of these matters …”.[35] Then, in answer to his Honour’s question, the solicitor went on to point out that his Honour’s order was provisional. The solicitor then said that, “…it is certainly a difficulty as to how a permanent stay could be arrived at even after you make an order under regulation 36”.[36]
[35] The analogous provision in Australia is reg 28(2) of the Regulations.
[36] Transcript of proceedings, 29 September 2014, p 9.
Importantly, when his Honour had earlier asked the solicitor for the CSR “Do you say that the order I made in January 2013 was in – beyond par?”,[37] the solicitor replied, “if it was intended to be made on section 111C, then yes”.[38]
[37] Presumably a typographical error which should read “power” – Transcript of proceedings, 29 September 2014, p 7.
[38] Transcript of proceedings, 29 September 2014, p 8.
Is s 111C a Source of Power?
Section 111C of the CSRC Act provides relevantly:
111C Stay orders
…
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
…
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified--until a decision of the court, the Registrar or the AAT determining the proceeding becomes final.
It can be seen that the court is given a wide discretion to make orders “until a decision of the court … determining the proceedings becomes final” or “until such other period as is specified in the orders”. The discretion is bounded by the requirement to take into account “the interests of the persons who may be affected by the outcome of the proceeding”.
By their terms his Honour’s 2013 orders were for a “permanent stay”. It cannot be said that they were orders made “pending the hearing and final determination of the proceeding”; they were themselves intended to be the final determination of the proceedings. Once made as they were intended, there were no other proceedings on foot. In reality, and despite their express terms, the orders were, in any event, not in the nature of a “stay”; they were intended as a mandatory injunction. (The orders also, in any event, misapprehend the nature of the liability. It was neither owed to, nor could be pursued by, the mother and the relevant New Zealand agency and the CSR cannot, as a consequence, be seen as her “agent” or similar).[39]
[39] The CSRC Act, s 30 (earlier referred to).
Section 111C of the CSRC Act could not be the source of power for either of the orders made in 2013.
The September 2014 Orders
The 2014 orders purport to achieve three things that might be argued as supportable by reference to the power given in s 111C:
·Order 3 purports to stay the CSR from “enforcing and collecting any child support arrears [and] any associated late payment penalties”. It will be observed that the language of “permanent stay” contained in the 2013 orders is eschewed and the stay is expressed to apply “pending further order of the court”.
·The potential for a further order is provided for by order 4 which adjourns “the further hearing of this matter” until “not before [a date in 2019]” (the day when the child turns 18).
·Those orders are (it seems) intended to be designated as “provisional” by reason of what is provided for at “order” 5.
Given that two other orders made by his Honour are, by their terms, intended to declare that “no arrears exist” (order 2) and to “credit [the father] with the payments for arrears already made by him against his ongoing Child Support liability” (order 6) it is by no means clear what “matter” remained as the subject of the mooted future proceedings. Certainly, all of the relief sought by the father was purportedly given by the terms of the orders and no part of any relief sought by him remained to be determined.
In our view, the order for adjournment is an artifice and the purported order for stay is made in support of that artifice. Indeed, it might be thought that, at [27] of his Honour’s reasons quoted earlier, his Honour almost concedes as much. Perhaps more importantly in terms of analysing the court’s power, the orders made by his Honour constitute an attempt to circumvent the entire purpose and structure of the trans-Tasman agreement earlier referred to and the legislative provisions which underpin it in Australia.
Such an order would, by its purported practical effect, seek to effectively finally determine rights in respect of a New Zealand assessment without reference to a New Zealand court. The Regulations and their New Zealand analogues can be seen as intended to “cover the field” of the orders which might be made by the courts of respective countries in respect of the assessments of the other. The reason that, relevantly, the orders of an Australian court are restricted to being provisional orders and are restricted to orders, “discharging, suspending, reviving or varying an order” is precisely to preserve the jurisdiction of the courts of New Zealand to make final orders with respect to rights and remedies referable to New Zealand assessments.
Further, s 110 of the FLA, by its terms, contemplates that it is the Regulations which will provide for the power to make orders of the relevant type.[40] That section’s intent is reinforced by s 111AA(2) of the CSRC Act which prohibits a court from “determining” an application of the type to which reg 36 refers. Orders for stay which are properly of the type envisaged by s 111C of the CSRC Act do not offend the s 111AA(2) prohibition precisely because they do not determine the substantive applications to which the Regulations are properly directed. Conversely, an order purportedly made pursuant to s 111C which has the effect of finally determining a substantive application is contrary to the specific prohibition in s 111AA.
[40] See, for example, s 110(2)(ba) and (c) of the FLA.
Taken together, and despite their apparent designation as “provisional”, his Honour’s orders are not in the nature of a stay as contemplated by that section and are designed to finally determine the father’s substantive application. Section 111C of the CSRC Act is not a source of power to do either.
It follows that we consider that if the orders made by his Honour are within power, they must be so by reason of the power given by the Regulations, specifically reg 36.
The Court’s Power to Make Orders Under the Regulations
As we have earlier said, we agree with the submission by counsel for the CSR that the orders made ultimately by his Honour were based on fundamental errors and misconceptions that originated in the proceedings on 31 January 2013. Counsel submitted that, “the train got off the tracks and never got back on the tracks”. Reference to the transcripts of the proceedings before his Honour renders that statement apt. His Honour was misled by the terms of the father’s application which sought orders, and suggested a basis for orders, which in fact the law did not avail. The circumstances of the father’s child support liability required his application to proceed from the fundamental premises earlier discussed and it did not.
The Erroneous Fundamental Premise
Reference to his Honour’s reasons earlier quoted, reveal the premise for not only the 29 September 2014 orders to which the reasons are said to relate, but also for the 2013 orders which preceded them, namely that the father “had no debt”. That fundamental conclusion was plainly not open to his Honour on the evidence before him.
The father had, by reason of s 30 of the CSRC Act, such arrears of his New Zealand child support liability as was recorded in the particulars of the Child Support Register. His Honour had no evidence of the particulars of the Child Support Register beyond a date some three years prior to his decision. In any event, his Honour was given three different figures for the amount of the alleged arrears from the bar table. No evidence properly admissible supported any of those assertions.
Reference to the transcript of the proceedings on 31 January, and the record more broadly, does not reveal any proper evidentiary foundation for any finding as to what the father’s liability was asserted to be, nor any proper evidentiary basis for a finding as to what amount of any direct payments was said to have been allegedly made by the father. The transcript does not reveal any “finding” as to the amount said to have been paid by the father. His Honour’s implicit finding would appear to be that, despite the absence of evidence as to the amount of arrears owing, whatever that amount is, it is equalled or exceeded by direct payments of whatever unascertained amount that have been made by the father direct to the mother.[41]
[41]Indeed, that appears to be the effect of the discussion between his Honour and then counsel for the father on 31 January 2013. (Transcript of proceedings, 31 January 2013, p 6).
Equally fundamental, the entire discussion has an erroneous basis as, ultimately, do the orders made that day. Even if it was established before his Honour that the father had paid amounts direct to the mother external to his assessment obligations and had established the dates and amounts of those payments, his debt would remain unless and until the Child Support Register was altered.
The father’s liability is an “enforceable maintenance liability” within the meaning of s 71 of the CSRC Act because it is “a registrable maintenance liability that is registered under [that] Act”.[42] Section 71 requires the CSR to credit direct payments, but only in the circumstances prescribed in the section. The power to do so is a power vested in the CSR, not the court.[43] That restriction on the court’s power is of general application to an “enforceable maintenance liability” and any such order would, in the usual course be beyond the court’s power. However, in this case the CSR’s power to credit any such amounts is, in any event, removed by reason of the particular liability being “an agency reimbursement liability”.[44]
[42] The CSRC Act, s 4 – definition of “enforceable maintenance liability”.
[43]See Strauss v Strauss (1998) FLC 92-797, at 84,950. Of course the actions or inaction of the CSR are reviewable and, if an error of law is there made, appealable.
[44] The CSRC Act, s 71(3).
The transcript of 31 January 2013 reveals, with respect, a fundamental misapprehension by his Honour as to the nature of the liability. His Honour said, for example, that the mother is “insist[ing] upon the enforcement of child support”[45] and appears to apprehend that an order effecting “a cessation of payment [of child support]” would provoke “an application under the rules to participate in the proceeding”[46] by the mother. The debt was not the mother’s; it was not her who was seeking to recover the arrears and, indeed, she had no standing to do so.[47]
[45] Transcript of proceedings, 31 January 2013, p 4.
[46] Ibid, p 5.
[47] The CSRC Act, s 30(2).
In our view, there was no evidence before his Honour by which his Honour could conclude that there was “no debt” owing by the father. Further, there was no evidence by which his Honour could reach any conclusion as to what amount had been paid directly by the father to the mother. In any event the conclusion that amounts had been paid, and should reduce or discharge the father’s liability, were based on errors of law.
The Applicable Australian Law was not Applied
More broadly, his Honour was misled into conducting a process that bore no relationship to the process which needed to be undertaken if a provisional order of the type envisaged by reg 36 was to be made.
In determining an application under that regulation (properly formed in accordance with its terms) the court is required to apply not the law in force in Australia described broadly but, rather, the law in force in Australia “under the Act”.[48] The Act is defined in the Regulations to be the Family Law Act 1975 (Cth).[49] Thus, although the father’s liability is a child support liability, reg 36 does not contemplate, for example, the application of departure application principles to an application to discharge, suspend, revive or vary the liability under reg 36. Rather, what is contemplated is akin to an application under s 66S of the FLA.[50]
[48] The Regulations, reg 36(4).
[49] The Regulations, reg 3
[50]Section 66S of the FLA is headed “Modification of Child Maintenance Orders”. It, too, uses the language of ‘discharge”, “suspend”, “revive” and “vary” (s 66S(2)).
Plainly enough, no such process took place before his Honour; reg 36(4) was not complied with and no foundation exists for order 2 providing that arrears of child support should be “discharged and revoked”.
Order 2 of the orders made on 29 September 2014 must be set aside on that basis alone.
The 2013 Orders
The legislative framework earlier discussed makes it abundantly clear that his Honour had no power to make a final order in respect of a New Zealand obligation. The order was required to be provisional and to be expressed as such. Further, the Regulations give the court power to discharge, suspend, revive or vary an order, agreement or liability; they do not give power to permanently stay a New Zealand assessment or liability, nor to issue a permanent injunction to similar effect.
As has been seen, his Honour’s January 2013 order also purported to relieve the husband from the payment of late payment penalties. His Honour had no power to do so. Late payment penalties are distinct from a payer’s child support liabilities and any arrears of same.[51] The court has no power to “discharge” or “revoke” penalties; it is only the CSR who has the power to “…remit the late payment penalty or part of the late payment of penalty” if satisfied of the relevant statutory preconditions.[52]
[51] The CSRC Act, s 67.
[52]The CSRC Act, s 68. His actions or inaction in that respect is, of course, reviewable and thereafter, if error of law is established, appealable.
The order purportedly made on 31 January 2013 was beyond power and must be set aside.
As we have earlier said, the attempt to “cure” the defects in that order by designating the very same orders as “provisional” did not in fact address the fundamental absence of power evident in the January orders. They, too, purportedly remained “final” and they, too, sought to make an order which the Regulations give no power to make.
The order purportedly made on 21 May 2013 was beyond power and must also be set aside.
The 29 September 2014 Orders – Orders 3 - 6
Similar issues attend at least the majority of the orders purportedly made on 29 September 2014.
The artifice of the purported stay and adjournment is intended to render as final orders which are required to be provisional and which, as a consequence, accord to the courts of New Zealand the power to make final orders in respect of the assessments and liabilities of that country. The attempt to make Australian orders determinative or final in respect of a New Zealand assessment and liability is beyond power.
Orders 3 and 4 (and “order” 5 to the extent that it is intended to give effect to orders 3 and 4) must be set aside on that basis.
Order 6 of the 29 September 2014 orders is beyond power for a different reason. It purports to direct the (Australian) CSR to “credit [the father] with the payment for arrears already made by him against his ongoing child support liability”. Our earlier discussion in respect of s 71 of the CSRC Act pertains. That order is based on the erroneous premise and attendant errors of law earlier discussed.
That order must be set aside because it accords to the court a power which it does not have.
The 29 September 2014 Orders – Order 2
Order 2 occurs within a number of orders made on 29 September 2014, all of which are made without power and which, taken together, can be seen as circumventing the requirements of the Regulations. We have considerable doubt as to whether this order can be seen as separate to, or treated as severable from, the orders read as a whole. We incline to the view that it is made without power.
It is possible to construe that order as within power, if it be assumed that:
·The Application in a Case founding the proceedings on 29 September 2014 was competent as occurring within an existing proceeding (which we doubt);
·The reference to the New Zealand Order of 2000 in “order” 5 can be severed from it;
·The reference in “order” 5 to “the order” being “a provisional order pursuant to regulation 36, 38 and 38A …” is to be read as applicable to order 2;
·The erroneous reference in order 2 to amounts owed to the mother is construed as amounts owing to the Commonwealth; and
·The erroneous reference to late payment penalties is severed from order 2.
In those circumstances order 2 might be seen as a provisional order made pursuant to reg 36 which sought to “discharg[e], suspend[ ] or vary[ ]” the father’s liability by way of a provisional order expressed to be such pursuant to reg 36.
However, if that be the case, the order is, in any event, infected with the errors we have discussed at [61] to [67] of these reasons.
Order 2 is either made beyond power or is infected by errors of law. It must be set aside.
Leave to Appeal
If his Honour’s orders are “interlocutory decree[s]”, they are, in turn, “prescribed decree[s]” from which leave to appeal is required.[53] The CSR’s Notices of Appeal seeks leave to appeal but in oral argument counsel suggests that it might be argued that orders made under the Regulations are “final” even though they are “provisional” within the meaning of that expression in reg 38 and, in turn, have a limited effect by reason of reg 38A.
[53]The Regulations, reg 15A; the FLA, s 94AA(1).
Regulation 38 itself distinguishes between orders which are “provisional” and orders which are “final”. An order made under reg 36 is “final” if made in respect of a jurisdiction that is not one of those nominated within sub-regulation (1). New Zealand is one of the nominated jurisdictions. In reg 38 terms, then, the instant orders are (or should be) “provisional” and not “final” as that expression is used within reg 38. However, the word “final” is used in reg 38 so as to distinguish it from orders of a particular type and effect made under the Regulations (i.e. orders that are “provisional”).
We do not consider that the use of the two terms in contradistinction is determinative, or intended to be determinative, of the issue of whether an order (or, more accurately, “decree”) is interlocutory as distinct from final. The latter distinction is well established in the law and is taken up by specific legislative provisions in respect of appeals generally.[54]
[54] The FLA, s 94AA; the Regulations, reg 15A.
The often-cited test for determining whether an order is interlocutory is whether the judgment or order “…finally determines the rights of the parties” – a question which the High Court has said is “productive of much difficulty”.[55] The test requires “the appellate court to look at the consequences of the order itself and to ask whether it finally determines the rights of the parties in a principal cause between them”.[56] The fact that an “…unsuccessful party could make a further application for the same relief, even though such an application might have very little prospect of success” has been said to be central in answering that question.[57]
[55]See Licul v Corney (1976) 180 CLR 213 per Gibbs J (Mason J agreeing); Carr v Finance Corp of Australia Ltd (1981) 147 CLR 246, at 248 per Gibbs CJ. See also discussion of relevant principles by this Court in Bruce F McLaren Holdings Pty Ltd v McLaren (2000) FLC 93-030.
[56] Bienstein v Bienstein (2003) FLC 93-124, at [25].
[57] Ibid; CDW v LVE [2015] WASCA 247, at [25].
The detailed and helpful written submissions on behalf of the CSR refer to no authority in which this question has been addressed in respect of reg 36 “provisional” orders.
In our view, it cannot be said that orders made under the relevant Regulations finally determine or dispose of the rights of the parties to alter (albeit “provisionally”) a child support liability, order or assessment.
Child support obligations derive from assessments that in turn derive from financial and other circumstances which are susceptible to change with the contingencies inherent in lives and circumstances that evolve over time. Those same contingencies and changes in circumstances can found the very applications for “discharging, suspending, reviving or varying” liabilities and orders that might found reg 36 applications. Orders under the relevant Regulations made by an Australian court are dependent upon the financial and other circumstances pertaining at that time.
An order made by reference to those circumstances does not finally determine rights with respect to relevant circumstances different to those which might arise in the future; if relevant circumstances exist, a further application for the same relief can be made.
We consider that the Australian orders made under the relevant Regulations in respect of New Zealand assessments, are “interlocutory decrees” for the purposes of s 94AA and Regulation 15A. As a consequence we consider that leave to appeal is required. For the reasons earlier expressed, leave is granted.
Conclusions
We conclude that:
·The orders made on 31 January and 21 May 2013 were made beyond power and must be set aside.
·Orders 3, 4 and 6 (and “order” 5 to the extent that it facilitates same) made on 29 September 2014 were made beyond power and must be set aside.
·Order 2 of the orders made on 29 September 2014 is probably beyond power and is, in any event, premised on findings which were not open on the evidence before his Honour and infected otherwise by errors of law. It, too, must be set aside.
The consequence is that leave is granted to appeal all three orders; the appeals are allowed and all the orders made by his Honour on 31 January 2013, 21 May 2013 and 29 September 2014 will all be set aside.
Costs
The CSR does not seek an order for costs. An order will be made that each party bear their own costs of and incidental to the appeal.
I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 22 January 2016.
Associate:
Date: 22 January 2016
4
6
4