Child Support Registrar & Rawlings

Case [2013] FCCA 370


FEDERAL CIRCUIT COURT OF AUSTRALIA

CHILD SUPPORT REGISTRAR & RAWLINGS & ANOR [2013] FCCA 370
Catchwords:
CHILD SUPPORT – Administrative assessment – enforcement – child support debt.
CHILD SUPPORT – Determination – Application for leave – where applicant applies for leave for a determination under Child Support (Assessment) Act 1989 (Cth) s.118 – delay by payer in lodging income tax returns – where amended assessments of income tax issued – where leave sought for a period longer than 18 months prior to the date of the application – where application for determination not made until after the commencement of enforcement proceedings.
DELAY – Where payer failed to seek a determination for nearly a year – whether delay unwarranted – where delay poorly explained.
COSTS – Whether there are circumstances that justify making an order for costs – First Respondent wholly unsuccessful.

Legislation:
Child Support (Assessment) Act 1989 (Cth), ss.58, 58A, 98S, 111, 112, 118
Child Support (Registration and Collection) Act 1988 (Cth), ss.81,116(2)

Family Law Act 1975 (Cth) s.117
Income Tax Assessment Act 1936 (Cth), Part IV

Cases cited:
Bagala & Bagala [2009] FMCAfam 953 followed
Bauer & Becker [2009] FMCAfam 480 followed
Cantrell & Jennings [2009] FMCAfam 229 followed
Re Commonwealth of Australia: Ex parte Marks (2000) 177 ALR 491
Hacherl & Berrios [2010] FMCAfam 668 followed
The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389
Moore & Moore [2012] FMCAfam 577
Whitford & Whitford (1979) 4 Fam LR 754; FLC 90-612
Applicant: CHILD SUPPORT REGISTRAR
First Respondent: MR RAWLINGS
Second Respondent: MS VINGE
File Number: SYC 5105 of 2012
Judgment of: Judge Scarlett
Hearing date: 14 May 2013
Date of Last Submission: 14 May 2013
Delivered at: Sydney
Delivered on: 30 May 2013

REPRESENTATION

Solicitor for the Applicant: Ms Jones
Solicitors for the Applicant: Australian Government Solicitor
Solicitor for the First Respondent: Mr Warren
Solicitors for the First Respondent: Andrew Warren Associates
Solicitor for the Second Respondent: Ms Thomson
Solicitors for the Second Respondent: Clarke Rideaux Solicitors

ORDERS

  1. The Amended Response to an Application in a Case filed by the First Respondent on 21 January 2013 is dismissed.

  2. The First Respondent is to pay the costs of the Applicant Child Support Registrar and the Second Respondent in an amount to be fixed by the Court.

  3. The Applicant and the Second Respondent are each to file and serve an affidavit setting out particulars of the costs and disbursements that they seek by 7 June 2013.

  4. The Application is adjourned to Tuesday 11 June 2013 at 11:30 am for hearing.

  5. The solicitor for the Second Respondent is granted leave to attend Court by telephone on the next occasion.  

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 5105 of 2012

CHILD SUPPORT REGISTRAR

Applicant

And

MR RAWLINGS

First Respondent

MS VINGE

Continue reading Child Support Registrar & Rawlings

Sign in free to access the full text

Details
AGLC
CHILD SUPPORT REGISTRAR & RAWLINGS & ANOR [2013] FCCA 370
Case
[2013] FCCA 370
Decision Date

CaseChat Overview and Summary

This matter came before Judge Scarlett concerning an application by the Child Support Registrar and a second respondent against the first respondent. The dispute centred on the first respondent's objection to a decision made by the Registrar of the Child Support Agency on 12 November 2011, which the first respondent sought to have reviewed.

The court was required to determine whether it had the power to vary the first respondent's adjustable taxable income under section 118(1)(g) of the Child Support (Assessment) Act, and specifically, whether it could make an order concerning a day more than 18 months prior to the application without leave granted under section 112. The first respondent argued that he was unaware of the statutory time limit for lodging an objection, which was 28 days under section 81 of the Child Support (Registration and Collection) Act 1988, and believed he could seek a review after filing his tax returns. He also presented reasons for his delay in filing his tax returns, including personal tragedies and his de facto partner's illness, and submitted that these circumstances, along with the potential for financial hardship if leave were not granted, warranted consideration.

Judge Scarlett dismissed the first respondent's amended response to the application. The court's reasoning appears to have been influenced by the first respondent's acknowledgment of the statutory time limits and his belated awareness of them, despite his explanations for the delay. The court also considered the prejudice to the applicant, noting that while costs orders could potentially address prejudice arising from delay, the first respondent's financial circumstances were relevant to the quantum of any costs he might be ordered to pay.

The court ordered that the first respondent pay the costs of the applicant and the second respondent, with particulars of these costs to be filed by 7 June 2013. The application was adjourned for a hearing on 11 June 2013, with leave granted for the solicitor for the second respondent to attend by telephone.

Orders

Orders of the court

1.

The Amended Response to an Application in a Case filed by the First Respondent on 21 January 2013 is dismissed.

2.

The First Respondent is to pay the costs of the Applicant Child Support Registrar and the Second Respondent in an amount to be fixed by the Court.

3.

The Applicant and the Second Respondent are each to file and serve an affidavit setting out particulars of the costs and disbursements that they seek by 7 June 2013.

4.

The Application is adjourned to Tuesday 11 June 2013 at 11:30 am for hearing.

5.

The solicitor for the Second Respondent is granted leave to attend Court by telephone on the next occasion.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The First Respondent went on to depose:Until I was told by my solicitor Andrew Warren on 29 October 2012 that I was required by virtue of section 81 of the Child Support (Registration and Collection) Act 1988 to object to the decision of the Registrar of the Child Support Agency made 12 November 2011 by 30 November 2011, I was not aware that a statutory time limit to lodge such an application existed.[17] I thought, as a consequence of my telephone conversation with the Child Support Agency officer referred to in paragraphs 7 and 8 herein of this my Affidavit, that when I lodged my tax returns I would be able to then have the decision reviewed.[18] [17] The time limit on lodging an objection under s. 81 is in fact 28 days.[18] Ibid at [17] The First Respondent submits that:a)The Court has power under s.118(1)(g) of the Child Support (Assessment) Act to make an order varying a parent’s adjustable taxable income;b)The Court only has power to make an order in respect of a day in a child support period more than 18 months earlier than the day on which the application is made if leave is granted under s.112. The First Respondent submitted that applications for leave under s.112 have been considered in Bagala & Bagala[19] and Moore & Moore.[20] [19] [2009] FMCAfam 953[20] [2012] FMCAfam 577 It is further submitted that the First Respondent’s reasons for delay in bringing his application are explained by the facts that:a)he did not know there was a time limit in objecting to the decision of 12th November 2011; andb)he was misled in his conversation with an officer of the Child Support Registrar into believing that he could make an application for review when he had filed his income tax returns. The decisions in Bagala and Moore, it is submitted, can be distinguished on the facts. The First Respondent had met all his obligations except for those related to the amended assessment. It is further submitted that the First Respondent had given reasons for his delay in lodging his income tax returns over the period from 2008 to 2012. Those reasons were:a)his father’s sudden death in 2008;b)his consequent need to travel to Queensland regularly to deal with his late father’s affairs;c)the cancer suffered by his de facto partner, requiring major surgery; andd)the effect of those matters which led to his neglecting his own financial and business affairs. It was further submitted that the First Respondent would suffer financial hardship if he were not to be granted leave. Against this, there is no evidence that hardship would be occasioned to the Second Respondent if the Court were to grant leave. The First Respondent appears to accept that he faces an order for costs, whatever the outcome of the proceedings. The First Respondent’s solicitor submits that:Any prejudice that the Applicant has suffered as a result of being obliged to bring these proceedings because of the Respondent’s delay in filing his tax returns can be cured by costs orders, although his financial circumstances are clearly relevant to the quantum of any costs he may be obliged to pay.[21][21] Submissions on behalf of First Respondent at [30]