Child Support Registrar & Z & T

[2002] FamCA 182

FAMILY LAW ACT 1975

IN THE FULL COURT OF THE
FAMILY COURT OF AUSTRALIA

AT MELBOURNE Appeal Nos. SA25& SA26L OF 2001

File No. ML9653 OF 2001

IN THE MATTER OF: CHILD SUPPORT REGISTRAR

Appellant

AND: Z.

Respondent/Father

AND: T.

Respondent/Mother

CORAM: LINDENMAYER, FINN & COLEMAN JJ

DATE OF HEARING: 10 SEPTEMBER, 2001

DATE OF JUDGMENT: 21 MARCH, 2002

JUDGMENT OF THE COURT

Appearances: Mr Slattery of Counsel with Dr Ebbeck (instructed by Australian Government Solicitor, Level 21, 200 Queen Street, Melbourne, Vic, 3000) for the Appellant

Mr Hoult of Counsel (instructed by Ryan Carlisle Thomas, Solicitors, Level 30, 80 Collins Street, Melbourne, Vic, 3000) for the Respondent/Father

JURISDICTION OF THE FAMILY COURT - Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) do not confer jurisdiction on the Family Court to make an order for payment against the Child Support Registrar in favour of the payer under a retrospectively invalidated maintenance liability

CHILD SUPPORT – Registration of maintenance liability – Child Support Registrar not obliged to alter Register until legally binding decision renders the Register ‘wrong’.

The Commonwealth of Australia Constitution Act (Imp) 1900, s81, s82.
Acts Interpretation Act (Cth) 1901, s19A(3).
Child Support Assessment Act (Cth.), s25, s29, s27, s30, s31, s100, s107,s141, s143.
Child Support (Registration and Collection) Act 1988 (Cth),s13, s17, s24A, s26, s30, s40, s73, s74,s75, s76, s79, s82, s87, s88, s104, s105, s113.
Financial Management and Accountability Act 1997 (Cth) s10 .
Financial Management Legislation Amendment Act 1999 (Cth) s19.
Boehm v Baker & Deputy Child Support Registrar (2001) FamCA 659 (unreported –judgment delivered 5 July, 2001-Dawe J). (Cautionary treatment)

This was an application for leave to appeal and appeal brought by the Child Support Registrar against orders of Kay J made on 9 April 2001. The proceedings related to child support paid by the respondent for a child L, who was born to the mother on 23 April, 1996.

The mother was not a respondent to the appellant’s amended Notice of Appeal and she did not appear at the hearing of the appeal

The background

After the birth of L, the respondent signed the birth certificate as the father. Subsequently an application by the mother for child support to be paid by the respondent was accepted by the appellant who proceeded to collect amounts of child support from the respondent.

At some stage during 1998, DNA tests established that the respondent was not the father of the child L. On 22 December 1998 the respondent and mother provided statutory declarations to the appellant affirming that the respondent was not L’s father. Despite the father’s protest the appellant continued to collect child support from him.

In November 2000 the respondent brought proceedings in the Family Court for a declaration under s.107 of the Child Support (Assessment) Act 1989 (Cth) that the mother was not entitled to administrative assessment of child support for L payable by him and to recover monies collected from him as child support, against the mother and the appellant.

It was common ground in the proceedings that the total amount collected by the appellant from the respondent after 22 December 1998 was $4,290.32.

On 6 March, 2001 Kay J made the declaration sought by the respondent and on 9 April 2001 he made an order that the appellant and the mother repay to the respondent the $4,290.32 paid by him in child support after 22 December, 1998. From the latter order the appellant appealed. The mother did not appeal.

The issue

The nub of the matter for determination at trial and upon appeal was whether an amount may be recovered pursuant to s.143 of the Child Support (Assessment) Act (Cth) 1989 from the Child Support Registrar or whether s.143 is limited in its scope to recovery of amounts from the mother, to whom money collected by the Child Support Registrar was eventually paid?

On Appeal, the appellant challenged the trial Judge’s conclusion that the Child Support (Assessment) Act 1989 (Cth) and the Child Support (Registration and Collection) Act 1988 (Cth) confer jurisdiction on the Family Court to make an order for payment against the appellant. The appellant submitted that s.143 of the Child Support (Assessment) Act 1989 (Cth) only confers jurisdiction on the Family Court to make an order against the mother for repayment of the amounts paid to her, by the respondent, through the appellant. Furthermore the appellant disputed the interpretation and application of s.40 of the Child Support (Registration and Collection) Act 1988 (Cth) by the trial Judge.

Held, granting leave to appeal, allowing the appeal, setting aside the order for repayment by the appellant and making no order for costs:

There is nothing in s.143 of the Child Support (Assessment) Act 1989 (Cth) that specifically, or by necessary implication, provides for recovery of money paid, in the circumstances predicated by the section, from the appellant.

The use of the word “recovered” in s.143(1) of the Child Support (Assessment) Act 1989 (Cth), in the context of reference to “an amount paid by a person to another person”, prima facie signifies that recovery by the payer of amounts paid is from the payee. This conclusion would seem, by analogy, to be consistent with the general principles of agency. For the purpose of its collection and enforcement functions under the Child Support (Registration and Collection) Act 1988 (Cth) the appellant may essentially be perceived to be the agent of a disclosed principal, namely the mother. By analogy with the law of agency it is presumed that payment to the agent/appellant pursuant to a contract would be regarded as payment to the disclosed principal/mother. Accordingly actions for recovery in the event of total failure of consideration or recision for fundamental breach after payment lie against the disclosed principal/mother, not the agent/appellant.

Although the effect of s.30 of the Child Support (Registration and Collection) Act 1988 (Cth) is to work a statutory assignment of debt between the mother and the Commonwealth so that, in the circumstances of this case, the Commonwealth, absent s.143(4) would become the recipient of payments and therefore liable to make repayment to the respondent, in lieu of the mother, the purpose and effect of s143(4) of the Child Support (Assessment) Act 1989 (Cth) is to prevent this occurrence by reversing the statutory assignment for the purposes of that section.

Section 74 of the Child Support (Registration and Collection) Act 1988 (Cth) is concerned only with the movement of funds from the Consolidated Revenue Fund of the Commonwealth to the Reserve created by s.73 of the Child Support (Registration and Collection) Act 1988 (Cth). It creates no rights in any person to receive monies from the Reserve, and creates no liabilities in any person to pay any monies into the Reserve. Further, it creates no duties of the appellant.

Section 74(1)(c) of the Child Support (Registration and Collection) Act 1988 (Cth) requires the transfer from the Consolidated Revenue Fund into the Reserve, of amounts equal to any amounts recovered by the appellant from payees of registered maintenance liabilites under s.79(1)(b)(ii) of the Child Support (Registration and Collection) Act 1988 (Cth)

Section 75 of the Child Support (Registration and Collection) Act 1988 (Cth) makes provision for the payment of monies out of the Reserve created by s.73 of that Act. It is an authorising section without which no monies could lawfully be paid out of the Reserve.

Section 75(c) of the Child Support (Registration and Collection) Act 1988 (Cth):

(a) does not apply to amounts the Registrar was entitled to receive as amounts recovered from payees pursuant to s.76(1)(b) (ii) and subsequently paid into the Reserve under s.74(1)(c);

(b) is intended to apply to amounts paid into the Reserve that the appellant either was never entitled to receive from the payer or to amounts which, although validly collected at the time, have been retrospectively rendered invalidly collected by a declaration under s.107 of the Child Support (Assessment) Act 1989 (Cth).

Although amounts may have been paid out of the Reserve to the supposed payee of the liability this does not remove the authority provided by s.75(c) for amounts equal to those amounts to be paid out again, from the Reserve, to the payer from whom they were, either actually or notionally, invalidly collected. However, the mere fact that there is statutory authority in s.75(c), for the payment out of the Reserve of amounts in repayment of amounts paid, to the Registrar, by the payer under a retrospectively invalidated maintenance liability, does not mean that the Court has power to order that the Registrar repay such amounts to any such payer, particularly in circumstances where the Registrar has paid out equivalent amounts to the supposed payee, pursuant to s.75(a) or (b), and not yet recovered the amounts so paid from that payee.

Although it is possible to infer from s.79(1)(b)(ii) that the legislature intended that the Registrar repay amounts overpaid by the payer the legislature failed to invest this Court with jurisdiction to order the Registrar to make such repayments.

10. Section 105(2) of the Child Support (Registration and Collection) Act 1988 (Cth) and s.100(3) of the Child Support (Assessment) Act 1989 (Cth) are concerned only with procedure and the overcoming of difficulties arising in matters where jurisdiction exists; they do not confer any substantive jurisdiction on the court.

11. Section 141(1)(n) of the Child Support (Assessment) Act 1989 (Cth) is not an alternative source of jurisdiction that supports an order against the appellant for repayment of monies paid by the respondent. Rather that subsection establishes the general powers of the Court under the Child Support (Assessment) Act 1989 (Cth). It does not create a power to make an order that is not otherwise within the specific provisions of that legislation.

12. s.40 of the Child Support (Registration and Collection) Act 1988 (Cth) did not oblige the Registrar to delete the relevant entry from the Register upon receipt of statutory declarations from the respondent and the mother. This section is purely administrative providing the Registrar with the necessary legislative fiat to correct the Register by bringing it into line with any legally binding determination which renders the Register ‘wrong’. Mere statutory declarations, whether authenticated or otherwise, by the persons apparently having an interest in the entry, are insufficient to invoke that duty of correction.

REPORTABLE

INTRODUCTION

This is an application for leave to appeal and (in the event that leave is granted) an appeal (to be referred to compendiously in this judgment as “the appeal”) by the Registrar of Child Support (“the Registrar” or “the appellant”) from orders made by Kay J (“the trial Judge”) on 9 April, 2001, in proceedings relating to child support paid by “the respondent” for a child L, who was born to “the mother” on 23 April, 1996.

The orders of the trial Judge, the subject of the appeal, were made upon an application in Form 63 which was filed by the respondent on 16 November, 2000. Those orders are in the following terms:-

“1.That the Registrar of Child Support and [T.] forthwith pay to the applicant [Z.] the sum of $4,290.32. The applicant to be entitled to execute these orders only to the extent of recovery of the total sum of $4,290.32.
2.That the Form 63 Application filed 16 November 2000 be otherwise dismissed.”

Although not named as a respondent to the appeal, the mother was served with the appellant’s amended Notice of Appeal, the Appeal Books, the appellant’s submissions and the list of appellant’s authorities, pursuant to an order of Finn J of 1 June, 2001. Notwithstanding that service, the mother did not appear, either in person or by any legal representative, on the hearing of the appeal, and took no part in the appeal proceedings.

In accordance with the usual practice of the Court, and as foreshadowed in order 3 of the orders of Finn J of 1 June, 2001, the proposed appeal was argued with the application for leave to appeal so that, if we conclude that leave should be granted, we may proceed to dispose of the appeal without any further hearing or argument.

BACKGROUND

Soon after the birth of L, the respondent signed the registration of birth in respect of that child acknowledging that he was the child’s father. Later, the mother lodged with the appellant an application, pursuant to ss.25 and 27 of the Child Support (Assessment) Act 1989 (“the Assessment Act”), for an assessment of child support payable by the respondent in relation to the child. That application was accepted by the appellant, under s.30 of the Assessment Act, and thereupon the respondent became liable, pursuant to s.31 of the Assessment Act, to pay child support to the mother for the child L in accordance with administrative assessments issued by the appellant, from time to time, under the provisions of that Act.

In due course, various administrative assessments of child support payable by the respondent to the mother in respect of the child were issued by the appellant, and amounts of child support in respect of the child were collected from him by the appellant (otherwise than by voluntary payments made by the respondent) under the provisions of the Child Support (Registration and Collection) Act 1988 (“the Collection Act”).

At some time during 1998, DNA tests were carried out in relation to the respondent, the mother and L, which tests established that the respondent is not the father of that child.

On 22 December, 1998, the appellant received statutory declarations by both the respondent and the mother in which they both affirmed that the respondent is not the father of the child L. Notwithstanding the receipt of those declarations, the appellant continued to collect from the respondent, otherwise than by voluntary payments made by him, amounts of child support payable by the respondent under assessments issued by the appellant. It was common ground in the proceedings that the total amount collected by the appellant from the respondent in respect of child support for the child L was $5,144.24, of which $4,290.32 was collected after 22 December, 1998 (the date of receipt by the appellant of the statutory declarations) referred to above.

On 16 November, 2000, the respondent filed in the Melbourne Registry of this Court, an application in Form 63 naming, as respondents, the mother and one TB (the alleged “biological father” of L). In that application the respondent sought the following orders:-

“(1) I seek a declaration from the court under section 107 of the Child Support Assesment [sic.] Act, that the mother is not entitled to an administrative assesment [sic.] of child support.
(2) Pursuant to section 143 of Child Support Assesment Act [sic.], the father be entitled to recover the amount of child support already payed [sic.] up until 8^th Nov’ 2000 which was wrongfuly [sic.] obtained.
(3) That the Child Support Agency, the mother and the biological father be responsible for paying any areas [sic.] incured [sic.] to the father in this case.”

When the respondent’s application came before the trial Judge for hearing on 6 March, 2001, the appellant appeared (represented by a solicitor employed by the Australian Government Solicitor in Melbourne) pursuant to an earlier order made by his Honour that it “attend the adjourned hearing on March 6 and present submissions on the claim made by the applicant”. The respondent appeared in person. There was no appearance by or on behalf of the mother or by or on behalf of TB.

After being satisfied that the mother had been properly served with the respondent’s application, and making it clear to the respondent that there was no basis upon which the Court could make any order against TB, the trial Judge heard submissions from the appellant, in relation to whether it could be ordered to repay to the respondent any moneys collected from him as child support for L after 22 December, 1998. In the course of the proceedings, with the concurrence of the solicitor representing the appellant, his Honour made an order joining the appellant as a party to the proceedings. His Honour then heard submissions from the respondent in support of his application. In the course of those submissions, the respondent accepted that he could obtain no order for repayment against TB, and that any order for repayment against the appellant could only be in respect of moneys received by it after 22 December, 1998.

At the end of the hearing on that day, the trial Judge delivered an ex tempore judgment dealing with paragraph 1 of the respondent’s application, and made a declaration, pursuant to s.107 of the Assessment Act, that the mother “was not entitled to administrative assessment of child support for [L] payable by [the respondent]”. His Honour then reserved his decision on the balance of the respondent’s application, wherein he sought orders, under s.143 of the Assessment Act, that the appellant and the mother repay to him any amounts paid by him as child support for L since 22 December, 1998.

The trial Judge delivered his reserved judgment on the outstanding issue of repayment, and made the orders set out in paragraph 2 hereof, which are the subject of this appeal, on 9 April, 2001.

THE JUDGMENT OF THE TRIAL JUDGE

The trial Judge began his judgment by referring, in paragraph 1 thereof, to the proceedings before him on 6 March, 2001 and, then quoted substantially all of his ex tempore judgment of that date, which sets out the relevant background to the proceedings, in somewhat greater detail than we have outlined it above.

His Honour then undertook a detailed review of the process of assessment, registration and enforcement of obligations to pay child support created by the Assessment Act and the Collection Act, following the lodgment, with the appellant, of an application by an eligible carer of a child (“a carer application”) under s.25 of the Assessment Act. In the course of that review, his Honour identified the sections of those acts which he considered to be relevant to his determination of the question before him, and quoted particular parts of those relevant sections.

In relation to the Assessment Act, the trial Judge referred to the following sections (the section headings of which we have included, in brackets, after each section, for clarity):-
s.25 (“Persons who may apply – eligible carers”);
s.29 (“How decision is to be made”);
s.31 (“Liability to pay child support arises on acceptance of application etc”);
s.100 (“Application of Family Law Act”);
s.107 (“Application for declaration by person from whom payment under administrative assessment of child support sought”);
s.141 (“General powers of court”);
s.143 (“Amounts paid where no liability to pay exists etc”).
Of those sections, the ones which his Honour regarded as of particular significance, and which he therefore quoted, either in full or in part, in his judgment, were:-
s.29(2)(b), which, relevantly provides:
“(2)     If the application is a carer application, the Registrar is to be satisfied that a person is a parent of a child only if the Registrar is satisfied:
…
(b)that the person's name is entered in a register of births or parentage information, kept under the law of the Commonwealth or of a State, Territory or prescribed overseas jurisdiction, as a parent of the child;”;
s.100(1) and (3), which provide:
“(1)     The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under paragraph 79(a) ) as if:
(a)the proceedings were proceedings under Part VII of that Act; and
(b)the proceedings were proceedings instituted under Part VII of that Act; and
(c)a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under Part VII of that Act; and
(d)a decree made in the proceedings were a decree made under Part VII of that Act; and
(e)matters arising in the proceedings were matters arising under Part VII of that Act; and
(f)any other necessary changes were made.
…
(3)       Where any difficulty arises in the application of subsection (1) or (2) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty.”;
s.107(5), which provides:-
“If the court grants the declaration, [that the applicant for child support was not entitled to administrative assessment of child support for the child payable by the person seeking the declaration], the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.”;
s.141(1)(n) and (p), which provide:-
“141(1)           In exercising its powers under this Act, a court may do all or any of the following:
…
(n)make any other order (whether or not of the same kind as those referred to in paragraphs (a) to (m) (inclusive)) that the court considers appropriate;
(p)       make an order at any time.”; and
143(1), (3) and (4), which provide:-
“143(1)           Where:
(a)an amount of child support is paid by a person to another person; and
(b)the person is not liable, or subsequently becomes not liable, to pay the amount to the other person;
the amount may be recovered in a court having jurisdiction under this Act.
…
143(3) In a proceeding in a court under this section, the court may make such orders as it considers just and equitable for the purpose of adjusting or giving effect to the rights of the parties and the child concerned.
143(4) An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.”

In paragraph 11 of his judgment, the trial Judge identified “the nub of the present case” as being “whether an amount may be recovered under s143 from [the appellant] or whether s143 is limited in its scope to recovery of amounts from the person to whom the monies were eventually paid by the [appellant]”. We agree with that identification of the essential issue to be determined by his Honour in the proceedings, and by us in this appeal.

In relation to the Collection Act, the trial Judge referred to the following sections (in respect of which, again, we have added the section headings, as they appear in the Act, for purposes of clarity):-
s.13 (“Child Support Register”);
s.17 (“Liabilities in relation to children that are registrable maintenance liabilities”);
s.24A (“Registrar to register liability in Child Support Register on making of child support assessment”);
s.26(3) (“Particulars of liability to be entered in the Child Support Register” – “Particulars relating to enforceability of the liability”);
s.30 (“Effect of registration”);
s.40 (“Entry wrongly existing in Child Support Register”);
s.74 (“Payments into Reserve”);
s.75 (“Payments out of Reserve”);
s.76 (“Entitlement of payees to be paid collected amounts”);
s.79 (“Overpayments of payees”);
s.82 (“Objections relating to registration”);
s.87 (“Consideration of objections by Registrar”);
s.88 (“Appeal against decisions on objections”);
s.104 (“Jurisdiction of courts under Act”);
s.105(2) (“Application of Family Law Act”); and
s.113 (“Recovery of debts”).
Of those sections, the ones which his Honour regarded as of particular relevance, and which he therefore quoted, either in full or part in his judgment, were:-
s.30(1) and (3), which provide:-
“30(1) If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment, court order or maintenance agreement under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
…
(3) If a registrable maintenance liability is registered under this Act, the payee is not entitled to, and may not enforce payment of, amounts payable under the liability.”;
s.40, which provides:-
“Where the Registrar is satisfied that an entry wrongly exists in the Child Support Register, the Registrar shall delete the entry from the Child Support Register.”;
s.74(1)(c), which provides:-
“74(1) The following amounts must be transferred to the Reserve out of the consolidated Revenue Fund:
…
(c)amounts equal to amounts received by the Registrar in relation to amounts that persons were not entitled to have been paid out of the Trust Account;
…”; [There is an anomaly in s.74(1)(c) in the use of the words “Trust Account”, appearing in that paragraph. This part of the Collection Act, along with some earlier sections, including s4(1) (the definitions section) was amended in 1997 by s.3 and Schedule 2 (items 605 to 620) of the Audit (Transitional and Miscellaneous) Amendment Act 1997 (Act No.152 of 1997). The purpose of those amendments was to replace the “Trust Account” established under s.73, as it then was, with a “Reserve”, being a component of the Reserved Money Fund, consequential upon amendments to the Financial Management and Accountability Act 1996, the Auditor General Act 1996 and the Commonwealth Authorities and Companies Act 1996. However, although the relevant items in the schedule to Act No.152 of 1997 appropriately amended all other relevant provisions of the Collection Act by substituting “Reserve” for “Trust Account”, s.74(1)(c) somehow escaped amendment (presumably by inadvertence), leaving the words “Trust Account” in the substantive part of that paragraph notwithstanding that there is now no definition of “Trust Account” in the Act nor any other reference to such an account elsewhere in it. Accordingly, we consider that this paragraph of the Act should be read as if the word “Reserve” had been substituted for the words “Trust Account”.]
s.75(c), which provides:-
“75.Money standing to the credit of the Reserve may be applied:
…
(c)in repaying amounts paid into the Reserve that the Registrar was not entitled to have received under this Act;
…”;
s.79, which, relevantly provides:-
“79(1)If:
(a)the payee of a registered maintenance liability is:
(i)paid an amount under section 76 ; …
… and
(b)either of the following situations apply:
(i)the payee was not entitled to be paid the amount; or
(ii)the amount is, because of a subsequent variation to particulars of the entry in the Child Support Register in relation to the liability, repayable by the Registrar to the payer of the liability;
the amount is repayable by the payee to the Registrar and is a debt due by the payee to the Commonwealth.
79(2) Where, in a case falling within subsection (1) , the payee is entitled to receive further payments under subsection 76(1) , the amount of the debt due to the Commonwealth by the payee may be recovered by reducing such of those payments by such amount as is determined in writing by the Registrar.”; and
ss.87, 88(1) and (3) and 105(2) [which we think it unnecessary to quote for the purposes of this appeal].
As some of the submissions addressed to us on the appeal draw upon parts of ss.74 and 75 of the Collection Act which were not quoted by the trial Judge, and as we consider both sections also need to be seen in the context of s.73 of that Act, we think it appropriate, and convenient at this point, to set out those three sections in full. All three sections are included in Part VI (headed “Payments to payees”), Division 1 (headed, “Establishment and operation of Child Support Reserve”). The sections, with their section headings, are as follows:-

“SECTION 73 ESTABLISHMENT ETC.
73(1)   A reserve by the name of the Child Support Reserve is established by this subsection.
73(2)   The Reserve is a component of the Reserved Money Fund.
SECTION 74 PAYMENTS INTO RESERVE
74(1)   The following amounts must be transferred to the Reserve out of the consolidated Revenue Fund:
(a)amounts equal to amounts received by the Registrar in payment of child support debts (including amounts received from employers under paragraph 47(1) (a));
(b)amounts equal to amounts received by the Registrar from payers of enforceable maintenance liabilities as voluntary payments for transmission to the payees of the liabilities;
(c)amounts equal to amounts received by the Registrar in relation to amounts that persons were not entitled to have been paid out of the Trust Account;

(d) (Repealed).
74(2) Where the Registrar receives an amount of which only part appears to the Registrar to fall within subsection (1) , the Registrar shall determine, in writing, the portion of the amount falling within that subsection, and only that portion is to be transferred to the Reserve under subsection (1).
SECTION 75 PAYMENTS OUT OF RESERVE
75 Money standing to the credit of the Reserve may be applied:
(a)in making payments under subsection 76(1) to payees of registered maintenance liabilities;
(b)in making payments to the payees of enforceable maintenance liabilities of amounts received from the payers of the liabilities as voluntary payments for transmission to the payees;
(c)in repaying amounts paid into the Reserve that the Registrar was not entitled to have received under this Act; and
(d)in paying to the Consolidated Revenue Fund amounts received from employers and payers of enforceable maintenance liabilities in relation to cases in which amounts have been transferred from the Consolidated Revenue Fund under section 77 or subsection 78(3) .”

In relation to “the nub” of the case, as identified by him in paragraph 11 of his judgment (see paragraph 18 hereof), the trial Judge first looked at s.143 of the Assessment Act, and considered the effect, in context, of subs.(4). In paragraph 12 of his judgment his Honour said this:-

“Sub-section 143(4) deems monies to be paid to the ultimate recipient notwithstanding that they were paid to the Commonwealth under s 30 of the Child Support (Registration and Collection) Act. Section 143(1) can comfortably be read as saying:
‘Where
(a)an amount of child support is paid by a person to another person [whether directly to that person or via the Commonwealth pursuant to s 30 of the Child Support (Registration and Collection) Act] and
(b)the person is not liable, or subsequently becomes not liable, to pay the amount to the other person;

the amount may be recovered in a court having jurisdiction under this Act.’ ”

His Honour then made the following statement, which is the subject of a ground of appeal which we shall subsequently identify:-

“13. There is no challenge to the fact that the Family Court has jurisdiction under the Child Support (Assessment) Act and there is really nothing in the scope of s 143 that limits the recovery to a recovery from the ultimate recipient of the monies.”

The trial Judge then referred to s.13 of the Collection Act, under which the appellant is obliged to keep the Child Support Register, and to s.17 by which a liability for child support that arises under a Child Support Assessment is a “registrable maintenance liability” of which, by s.24A, the appellant is obliged to enter particulars in the Register. His Honour noted that, by s.26(3) of that Act, those particulars “include the day on which the liability first becomes enforceable and the day upon which it ceases to be enforceable”.

The trial Judge then referred to and quoted ss.40, 74(1)(c) and 75(c) of the Collection Act, all of which are set out above, and in respect of the last of those, said this:-

“19. It is clear that that section empowers the Registrar to repay monies which should never have been received under the Act. The effect of the grant in this case of the declaration that the applicant was not a liable parent meant that no liability has ever existed and that strictly speaking the Registrar has never been entitled to have received any monies from the applicant. However, given the existence of the applicant's acknowledgment of parenthood in the Register of Births, until such time as the applicant put the Registrar on notice that he was disputing paternity, then as against the Registrar, the applicant would, in my view, be estopped from asserting the Registrar had no entitlement to collect monies from him. ”

Then, after referring to s.76 of the Collection Act (which he said “creates the entitlement of persons entitled to receive child support to have those monies paid to them by the Registrar once they are received by the Registrar”), and quoting the relevant parts of s.79 thereof (set out above), the trial Judge referred to or quoted parts of ss.82, 87, 88, 104 and 105 of that Act, which we consider not relevant to this appeal. His Honour then referred to s.113 of the Collection Act, which, he correctly observed, “provides that a debt due to the Commonwealth may be sued for and recovered by the Registrar”. He then said this:-

“24. … As can be seen from s 79(1)(a)(ii) the monies overpaid to the mother are now recoverable by the Registrar as debts due to the Commonwealth.”

[It is clear that his Honour’s reference, in that passage, to “s.79(1)(a)(ii)” was intended as a reference to s.79(1)(b)(ii).]

The trial Judge then referred, in paragraph 25 of his judgment, to a discussion paper published by the Child Support Agency, which his Honour appears to have obtained access to through the Internet. In that paper, the unnamed author apparently expressed an opinion that s.79(1) of the Collection Act (which “outlines the circumstances in which an overpayment may give rise to a statutory debt”) “will not apply where the CSA registered a maintenance liability that is found never to have been registrable under the Act”, because the section applies only to a payee of a “registered maintenance liability”, and s.4 of that Act defines a “registered maintenance liability” as “a registrable maintenance liability that is registered under this Act”. His Honour considered that that assertion was “a rather generous reading of s107(5) of the Assessment Act”, which his Honour then quoted. His Honour then added this:-

“27. Although the matter has not been argued before me, I would have thought that until the Court made such a declaration, a "registered maintenance liability" existed and any overpayment made under it was capable of being recovered by the Registrar. ”

The trial Judge then referred to the facts of the case relating to the mother’s application for assessment (made in April, 1996) which was accepted by the appellant “acting upon the information contained in the Registrar [sic.] of Births” to issue an assessment, and that until 22 December, 1998 (when the mother and the respondent both informed the appellant that the respondent was not the father of the child) the appellant “had no reason to believe … the [respondent] was anything other than a person from whom child support could properly be collected in respect of the child [L]”. However, after referring to the fact that the appellant continued to collect child support from the respondent in the total sum of $4,290.32, thereafter, “against his protestations” and despite his being “continually assured” by officers of the Agency “that he would get his money back”, his Honour said this:-

“29. Armed with the statutory declarations, it is not entirely clear why the Registrar failed to act under s 40 of the Registration and Collection Act …” [The relevant part of which, set out above, his Honour then quoted.]

Then, after expressing the view, in paragraph 30 of his judgment, that if it were “not prepared to take the parties’ word that the liability should be cancelled” the appellant “ought to have properly advised [the respondent] that he should provide it with the results of a parentage test or obtain a s.107 declaration”, and noting there was no evidence that it did either, his Honour continued:-

“31. Section 79(1)(a)(ii) of the Registration and Collection Act clearly envisages a situation that the Registrar can be liable to repay monies to a payer of a liability where the payee was not entitled to be paid the money in the first place or because of a subsequent variation, an overpayment situation is created. It talks of an amount being repayable by the Registrar to the payer of the liability. In those circumstances, s 79 enables the Registrar to bring an action against the recipient of the monies for a refund. ”

[Once again, it is clear that his Honour’s reference in that passage to “Section 79(1)(a)(ii)” was intended as a reference to s.79(1)(b)(ii).]

The trial Judge then noted, in paragraph 32 of his judgment, that “such a situation” as envisaged by s.79(1)(b)(ii) “has arisen” in this case, so that “[a]ll the moneys paid to the Registrar are recoverable”. He then added:-

“It would, however, be inequitable to enable, as against the Registrar, the recovery of the monies paid to the Registrar prior to the parties notifying the Register [sic.] of the absence of any liability. … However, once armed with persuasive information, namely statutory declarations from both the mother of the child and the applicant that the applicant was not the father of the child, the Registrar was on reasonable notice that any collection might well create a liability for repayment.”

His Honour then stated his conclusion about what he had earlier identified as “the nub of the case” in the following terms:-

“33. In my view s 143 of the Assessment Act is wide enough to cover the recovery of monies from the Registrar, and that particularly in this case it is just and equitable to make an order against the Registrar for the purpose of adjusting or giving effect to the rights of the parties in these proceedings. That recovery, however, is to be limited to monies collected after the Registrar was put on notice, namely after 22 December 1998 and then only limited to the sum of $4,290.32.”

Having said that, the trial Judge went on to say, in paragraph 34 of his judgment, that if he were wrong about s.143 of the Assessment Act providing the basis for recovery from the appellant, there were “at least three other places within the legislative scheme where the power to make an award against the Registrar may be found”. He then identified those three places as s.105(2) of the Collection Act, and ss.100(3) and “141(1)(m)” of the Assessment Act. We have no doubt that his Honour’s reference to “s.141(1)(m)” was intended as a reference to s.141(1)(n), which he had earlier quoted and which we have set out in paragraph 17, above. Section 141(1)(m) empowers the Court to “make an order by consent”, which has no relevance to the circumstances of this case.

The trial Judge then quoted, again, but at greater length, from the “discussion paper” to which he had earlier referred, but which we consider to be of no relevance to this appeal, before making it clear, in paragraph 37 of his judgment, that he was not finding any “serious maladministration” by the appellant, but only that it “was on proper notice from the [respondent] that he was not a liable parent and that the mother of the child agreed”. He added that, after a receipt of that notice, the appellant “continued to collect child support from [the respondent] and pay it to the mother”, which money the respondent “is highly unlikely to be able to recover” from the mother.

Finally, after reiterating his conclusion that he had power to require the appellant to repay the respondent monies collected from him after 22 December, 1998, and that it was just and equitable to make such an order, the trial Judge referred to the fact that the respondent also sought repayment from the mother. He concluded that he was “prepared to make an order” that the appellant and the mother “each be severally liable” for the amount of $4,290.32 which he had earlier referred to. His Honour then proceeded to make the orders set out in paragraph 2 hereof, against which the appellant (but not the mother) appeals.

THE APPEAL

The amended Notice of Appeal of the appellant contains seven grounds of appeal. Of those seven grounds, grounds 1, 2 and 3 were effectively argued together, and ground 5 is closely related to those grounds. Effectively, they challenge the trial Judge’s interpretation of s.143 of the Assessment Act, as ultimately expressed in paragraphs 13 and 33 of his judgment, and his interpretation of s.79(1)(b)(ii) of the Collection Act, as expressed in paragraph 31 of his judgment, which interpretation formed part of the basis of his Honour’s interpretation of s.143 of the Assessment Act. Ground 4 raises a separate issue about his Honour’s application of s.143(3) of the Assessment Act. Ground 6 challenges his Honour’s alternative conclusion, as expressed in paragraph 34 of his judgment, that power to make an order against the appellant for the repayment to the respondent of child support amounts paid by him which were not properly payable under the legislation is to be found in s.105(2) of the Collection Act and/or ss.100(3) and 141(1)(n) of the Assessment Act. Ground 7 challenges his Honour's interpretation and application, as allegedly expressed in paragraphs 28 to 30 of his judgment, of s.40 of the Collection Act. It is convenient to deal with grounds 1, 2, 3 and 5 together, and then separately with the remaining grounds.

Grounds 1, 2, 3 & 5

“1. The learned trial Judge erred in finding that jurisdiction was conferred on the Family Court of Australia (‘the Family Court’) by the Child Support (Assessment) Act 1989 (‘the Assessment Act’) or the Child Support (Registration and Collection) Act (1988) (‘the Registration and Collection Act’) to make an order against the Child Support Registrar (‘the Registrar’) to repay monies paid by way of an administrative assessment of child support to a payee (Judgment paragraphs 13 and 33). The learned trial Judge should have found that Section 143 of the Assessment Act only enables an action to be taken by a payer against the ultimate payee, in this case [T.].

2. The learned trial Judge erred in failing to give effect to section 143(4) of the Assessment Act wherein, for the purposes of a recovery action under section 143 of the Assessment Act, amounts paid to the Commonwealth under section 30 of the Registration and Collection Act are taken to have been paid to the payee, in this instance, [T.]. The trial Judge should have found that for the purposes of any recovery under section 143 of the Assessment Act, by virtue of section 143(4), amounts paid to the Commonwealth under section 30 of the Registration and Collection Act are taken to have been paid to [T.], the ultimate payee.
3. The learned trial Judge erred in finding that the Registrar was a person to whom an amount of child support was paid for the purposes of section 143 of the Assessment Act. The learned trial Judge should have found that the Registrar was not a person to whom an amount of child support was paid for the purposes of section 143 of the Assessment Act.
5. The learned trial Judge erred in finding that under section 79 (1)(b)(ii) of the Registration and Collection Act, the Registrar can be required to pay monies to a payer of a liability (Judgment paragraph 31). The learned trial Judge should have found that the provisions of section 79 of the Registration and Collection Act were concerned only with the recovery of monies by the Registrar from payees and did not provide any authority or jurisdiction for an order to be made in respect of monies to be paid to a payer.”

The essential submission of counsel for the appellant in relation to these grounds was that, properly construed, nothing in either the Assessment Act or the Collection Act confers jurisdiction on the Family Court to make an order for payment against the appellant, at least in the circumstances predicated in this case, and that s.143 of the former Act, properly construed, confers jurisdiction in those circumstances only to make an order against the mother for repayment of the amounts paid by the respondent to her through the agency of the appellant.

The detailed submissions for the appellant focused, initially, on s.143 of the Assessment Act, since it was primarily upon the basis of his interpretation of that section that his Honour concluded that he had power to make the order he did for repayment by the appellant, the scope of operation of that section having been identified by his Honour, in paragraph 11 of his judgment, as “the nub of the present case”.

It was submitted by counsel for the appellant that in concluding, as he did, in paragraphs 13 and 33 of his judgment, that “there is really nothing in the scope of s.143 that limits the recovery to a recovery from the ultimate recipient of the monies” and that that section is “wide enough to cover the recovery of monies from [the appellant]”, the trial Judge failed to give effect to or misconstrued s.143(4). Although we have already set out the relevant parts of s.143, in paragraph 17 hereof, we think it appropriate that we set out subs.(4) again here. It provides:-

“143(4) An amount paid to the Commonwealth under section 30 of the Child Support (Registration and Collection) Act 1988 is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable.”

The trial Judge clearly considered the import of that subsection in his interpretation of subs.(1), which provides, in substance, that when an amount of child support “is paid by a person to another person”, in circumstances where (as happened here) the payer “subsequently becomes not liable to pay the amount to the other person” then “the amount may be recovered in a court having jurisdiction under this Act”. In paragraph 12 of his judgment his Honour said that the effect of subs.(4) is that it “deems monies to be paid to the ultimate recipient notwithstanding that they were paid to the Commonwealth under s30” of the Collection Act.

Apart altogether from subs.(4), and without regard to other provisions of either Act which may throw some light upon the interpretation of s.143(1), we would have thought that, prima facie, the use of the word “recovered” in subs.(1), in the context of reference to “an amount paid by a person to another person”, would signify recovery by the person who made the payment from the other person who was the recipient of the payment. Furthermore, if it be correct, as we perceive it to be, to regard the appellant, in the collection and enforcement aspects of its functions delineated by the Collection Act, as, essentially, the agent for a disclosed principal (namely the person entitled to be paid child support), then the conclusion stated in the preceding sentence would seem, by analogy, to be consistent with general principles of the law of agency. Under those principles, where an agent contracts on behalf of a disclosed principal, there is a presumption (rebuttable in some circumstances by evidence of a contrary intention) that the principal alone, not the agent, is liable under the contract, unless the contract expressly provides otherwise: Railway Commissioners for New South Wales v. Orton (1922) 30 CLR 422 at 425; Halsbury’s Laws of Australia [15-320]; Austrac Rail Pty Ltd v. Hunter Premium Funding Limited [2001] NSWSC 654 (30 July, 2001 – unreported – Santow J). In such a case, any payment to the agent pursuant to the contract would be regarded as a payment to the principal and, in the event of a total failure of consideration, or recision for fundamental breach after payment (circumstances somewhat analogous to the effect of the declaration under s.107 of the Assessment Act here) action for recovery of the amount paid would lie against the principal, not the agent.

There is certainly nothing in s.143 which specifically, or by necessary implication, provides for recovery from the appellant of moneys paid, in the circumstances predicated by the section. It is worth noting that we can find nothing in either Act which provides for any liability of the appellant for anything done or omitted to be done under the legislation, or which enables proceedings of any kind to be brought against the appellant, or which, in any general sense, provides for the appellant to stand in the shoes of the Commonwealth for all purposes under the legislation. However, this was not a point taken by counsel for the appellant either before the trial Judge or before us.

However, the effect of s.30 of the Collection Act would seem to be to work a statutory assignment of debt between the person entitled to receive payments of child support under a registered registrable maintenance liability, and the Commonwealth, so that the latter becomes the creditor of the person liable to make the payments in lieu of the former. Absent s.143(4) of the Assessment Act, in a case where payment was made by the liable parent to the Commonwealth, pursuant to s.30 of the Collection Act, the Commonwealth would be the recipient of the payment and therefore the “person” from whom such a payment could be “recovered” under s.143(1), in the circumstances provided for in that subsection.

The very purpose of s.143(4) would seem to be to prevent the occurrence of the circumstance referred to in the immediately preceding paragraph. This subsection is couched in very express terms, and provides that an amount paid to the Commonwealth under s.30 of the Collection Act “is to be taken, for the purposes of this section, to have been paid to the person to whom, apart from that section, the amount would have been payable” [emphasis added]. The trial Judge expressed the view, in paragraph 12 of his judgment, that this is a deeming provision, which “deems monies to be paid to the ultimate recipient notwithstanding they were paid to the Commonwealth”, but then said, in paragraph 13, that “… there is really nothing in the scope of s143 that limits the recovery to a recovery from the ultimate recipient of the monies”.

With respect to his Honour, we find inconsistency between those two statements. If the effect of subs.(4) is to deem monies paid to the Commonwealth to be paid to the ultimate recipient “for the purposes of” s.143, then it seems to us that that deeming necessarily limits recovery under the section to recovery from the ultimate recipient, since he/she is, for the purposes of the section, the only “person” to whom the monies in question were paid.

If the intention of the legislature had been only to facilitate recovery of the monies paid from the ultimate recipient even where the monies had been paid to the Commonwealth under s.30 of the Collection Act, but also to create or preserve a right of the payer to recovery from the Commonwealth, s.143(4) could have been drafted in some such terms as these:-

“(4) For the purposes of any application, under subs.(1), by a person (in this subsection called ‘the applicant’) who has paid child support, to recover the amount paid from the person supposed, at the time of the payment, to be entitled to receive the same (in this subsection called ‘the respondent’), the amount paid by the applicant is to be taken to have been paid to the respondent notwithstanding that it was in fact paid to the Commonwealth under s.30 of the Child Support (Registration and Collection) Act 1998.”

However, the legislature saw fit to provide, by s.143(4), that “for the purposes of this section” (which must mean for all purposes of the section) a payment to the Commonwealth “is to be taken” to have been a payment to the person to whom the money would have been payable, but for the statutory assignment created by s.30 of the Collection Act. The use of the expression “is to be taken” leaves no room for any exceptions or any exercise of discretion to the contrary, but mandatorily obliges a court before which any application under the section comes, to treat the ultimate recipient as the person to whom the money was paid and therefore as the person from whom it may be recovered. The effect of the subsection is therefore to undo, for the purposes of s.143, the statutory assignment brought about by s.30 of the Collection Act, and to re-establish, as at the time of payment, the relationship of supposed debtor and supposed creditor between the person supposed to be liable to pay child support and the person supposed to be entitled to receive that child support. Once the liability to make the payment is held not to have existed at the time of the payment (by virtue of s.107(5) of the Assessment Act) s.143 allows the supposed debtor to recover the amount paid from the supposed creditor, but not from the Commonwealth, even if it was the actual recipient of the money from the supposed creditor and, ipso facto, not from the appellant who certainly can be in no worse position than the Commonwealth.

In reaching his conclusion that the Court may make an order against the appellant for the repayment of monies paid to the Commonwealth, pursuant to s.30 of the Collection Act, in respect of a child support liability subsequently taken never to have existed because of the operation of s.107(5) of the Assessment Act, the trial Judge drew upon ss.13, 24A, 26(3), 40, 74(1)(c), 75(c) and 79(1)(b)(ii) of the Collection Act. We have already set out ss.40, 74(1)(c), 75(c) and 79(1)(b)(ii) fully in paragraph 20 hereof, and have referred to the essential aspects of ss.13, 24A and 26(3) in paragraph 24 hereof.

We are not sure that we fully comprehend the process of reasoning by which his Honour applied those sections of the Collection Act to reach the conclusion which he did. As noted in paragraph 36 hereof, the essential submission of counsel for the appellant was that nothing in either that Act or the Assessment Act confers jurisdiction on the Family Court to make an order for the recovery of money against the appellant in the circumstances which arose in this case. As will appear below, that is a submission which we accept. However, some of the submissions for the appellant went beyond that basic submission, and addressed issues of construction of various of those sections of the Collection Act. Whilst it may not be strictly necessary, in the end, for us to deal with all of those submissions in order to dispose of this appeal, we think it appropriate that we express our opinion about them in order to highlight what we perceive to be some deficiencies in the drafting of the legislation and out of deference to the submissions made.

In order to fully understand ss.74 and 75 of the Collection Act, it is first necessary to appreciate that, in accordance with s.81 of The Constitution and various Commonwealth Acts, Regulations and Finance Minister’s orders made under them, all monies received by any Commonwealth officer on behalf of the Commonwealth must be dealt with, initially, in such a way that they become part of the Consolidated Revenue Fund of the Commonwealth (“the CRF”): see, for example, s.10 of the Financial Management and Accountability Act 1997, and ss.19 and following of the Financial Management Legislation Amendment Act 1999. Accordingly, amounts received by the appellant on behalf of the Commonwealth pursuant to s.30 of the Collection Act, or otherwise pursuant to the provisions of the Collection Act, become part of the CRF, and lose their character as separate, identifiable funds referrable to the particular child support liability to which they relate.

In order, then, to enable the appropriation of monies from the CRF to facilitate the satisfaction of child support liabilities in respect of which monies were collected by the appellant, on behalf of the Commonwealth, s.74(1) of the Collection Act was enacted. It requires that there be transferred from the CRF to “the Reserve” created by s.73, amounts of money equal to amounts received by the appellant in three different ways, as defined by paragraphs (a), (b) and (c) of that subsection, namely:-

(a)“amounts received by the Registrar in payment of child support debts” (a “child support debt” being defined, in s.4(1) of the Act, to mean “a debt due to the Commonwealth under section 30”);
(b)“amounts received by the Registrar from payers of enforceable maintenance liabilities as voluntary payments for transmission to the payees of the liabilities” (an “enforceable maintenance liability” being defined, in s.4(1) of the Act, to mean “a registered maintenance liability that is enforceable under this Act”); and
(c)“amounts received by the Registrar in relation to amounts that persons were not entitled to have been paid out of the Trust Account [semble – the Reserve]”.

It is clear, then, that s.74 is concerned only with the movement of funds from the CRF to the Reserve created by s.73. It creates no rights in any person to receive any monies from the Reserve, and creates no liabilities in any person to pay any monies into the Reserve. Indeed, it imposes no duties on the appellant. It possibly creates a duty, in “the Secretary”, who, by s.11 of the Act “has the general administration of this Act”, to take whatever administrative steps are necessary to transfer from the CRF to the Reserve the amounts referred to in the section. By s.4(1) of the Act, “the Secretary” is defined as “the Secretary to the Department” (currently the Department of Family and Community Services, see s.19A(3) of the Acts Interpretation Act 1901 and Part 8 of the Schedule to the Administrative Arrangements Order of 26 November, 2001, as amended by Order in council dated 20 December, 2001.).

Section 75 of the Collection Act then makes provision for the payment of monies out of the Reserve created by s.73. It is an authorising section without which no monies could lawfully be paid out of that Reserve, into which funds have been transferred from the CRF in conformity with s.74. Apart from the general proposition, flowing from s.83 of The Constitution, that public monies may not lawfully be disbursed without lawful authority (such authority having to be found either in an Act of the Parliament or in some valid piece of subordinate legislation) there are the plain introductory words of the section: “Monies standing to the credit of the Reserve may be applied”, which are clearly facilitative in character.

The section then goes on to define, in paragraphs (a) to (d) thereof, four categories of payments to which the amounts standing to the credit of the Reserve may be applied. Only the first three of those categories are relevant for the purposes of this appeal, they being:-

(a)“payments under subs.76(1) to payees of registered maintenance liabilities” (s.76(1) creates the entitlement of payees of registered maintenance liabilities to be paid amounts collected by the appellant as child support debts);
(b)“payments to the payees of enforceable maintenance liabilities of amounts received from the payers of the liabilities as voluntary payments for transmission to the payees”; and
(c)repayments of “amounts paid into the Reserve that the Registrar was not entitled to have received under this Act”.

At first glance there may appear to be a symmetry between s.74(1)(a), (b) and (c) and s.75(a), (b) and (c). Paragraphs (a), (b) and (c) of s.75 may appear to authorise the payment, out of the Reserve, created by s.73, of the amounts previously transferred into that Reserve pursuant to and in compliance with paragraphs (a), (b) and (c), respectively, of s.74(1). This was essentially the submission of senior counsel for the appellant. It was submitted that s.74(1)(c) requires the transfer from the CRF into the Reserve of amounts equal to amounts recovered by the appellant (under s.79(1)(b)(ii) of the Collection Act, dealt with below) from the payees of registered maintenance liabilities, for example in respect of amounts previously paid to them out of the Reserve which, by reason of subsequent declarations made under s.107 of the Assessment Act, those payees “were not entitled to have been paid” out of the Reserve. It was then further submitted that it is only amounts paid into the reserve pursuant to s.74(1)(c) (i.e. amounts recovered from payees) which may then be paid out of the Reserve pursuant to s.75(c). It would follow, then, that in the absence of recovery from the payee there is no authority under s.75 for any repayment from the Reserve to the payer.

We agree with the first part of that argument (namely that s.74(1)(c) requires the payment, into the Reserve, of amounts equal to any amounts recovered by the appellant from payees of registered maintenance liabilities, in the circumstances previously described). We think that must be so, because the amounts received by the appellant from the payers of registered maintenance liabilities are covered by s.74(1)(a), (being “amounts equal to amounts received by the Registrar in payment of child support debts”) or s.74(1)(b) (being amounts equal to amounts received by the Registrar from payers of enforceable maintenance liabilities as voluntary payments for transmission to the payees”).

However, the second part of the argument for the appellant on this point (that it is only amounts paid into the Reserve under s.74(1)(c) that may be paid out of it under s.75(c)) is unsound. That paragraph authorises the application of money standing to the credit of the Reserve in repayment of “amounts paid into the Reserve that the Registrar was not entitled to have received under this Act” (emphasis added). As the Registrar was entitled, under the Act, to receive the amounts recovered from payees (pursuant to s.76(1)(b)(ii)) and paid into the Reserve under s.74(1)(c), this paragraph of s.75 cannot apply to those amounts. It must therefore be intended to apply to amounts paid into the Reserve in respect of amounts that the appellant either was never entitled to receive from the payer (e.g. amounts of child support collected from the wrong person through administrative error, or wrongly collected after the liability of the payer terminated) or to amounts which, although validly collected at the time, have been retrospectively rendered invalidly collected by a declaration under s.107 of the Assessment Act. Amounts equal to those amounts would have been transferred into the Reserve pursuant to s.74(1)(a) or (b). Although equivalent amounts may then also have been paid out of the Reserve to the supposed payee of the liability, in purported pursuance of s.75(a) or (b), that fact alone would not remove the authority, provided by s.75(c), for amounts equal to those amounts to be paid out again, from the Reserve, to the payer from whom they were, either actually or notionally, invalidly collected.

However, the mere fact that there is statutory authority, in s.75(c), for the payment out of the Reserve of amounts in repayment of amounts paid, to the Registrar (and then transferred into the Reserve under s.74(1)(a) or (b)), by the payer under a retrospectively invalidated maintenance liability, does not mean that the Court has power to order that the Registrar repay such amounts to any such payer, particularly in circumstances where the Registrar has paid out equivalent amounts to the supposed payee, pursuant to s.75(a) or (b), and not yet recovered the amounts so paid from that payee.

At one point in our deliberations, we were troubled by the apparently ungrammatical use [1], in s.74(1)(c) and 75(c), of the perfect infinitive after the past tense, rather than the present infinitive (in s.74(1)(c), “to have been paid”, after “were not entitled” rather than “to be paid”, and, in s.75(c), “to have received”, after “were not entitled”, rather than “to receive”). Upon reflection, however, we think that the draftsperson may have deliberately chosen to use the strictly ungrammatical perfect infinitive immediately following the past tense, rather than the more grammatical present infinitive, in those two contexts, in order to try to make it clear that, for example, s.74(1)(c) requires the payment into the Reserve, not only of amounts recovered by the Registrar in relation to amounts that supposed payees of child support liabilities were not entitled to receive at the time they received them, but also of amounts recovered in relation to amounts that supposed payees of such liabilities were entitled to be paid at the time of the receipt but became not entitled to, retrospectively, upon the happening of some event such as the making of a declaration under s.107 of the Assessment Act. Similarly, the perfect infinitive “to have received” may have been used in s.75(c) to try to make it clear that the paragraph authorises the payment out of the Reserve not only of amounts that the Registrar was not entitled to receive at the time they were received but also those which the Registrar was entitled to receive at that time, but later became not entitled to receive, retrospectively, upon the happening of some such event. We think that that departure from the strict rules of grammar, in each case, was unnecessary for that purpose, but in any event we think that nothing turns upon the irregular use of the perfect infinitive in those paragraphs for the purposes of this judgment.
[1] see Fowler’s Modern English Usage, 2^nd ed, pp.444-445

Provision for the recovery, by the Registrar, on behalf of the Commonwealth, from the payees of retrospectively invalidated child support liabilities, of amounts paid to them before the invalidation, is made by s.79(1)(b)(ii) of the Collection Act. This provision, and the use in it of the expression “the amount is … repayable by the Registrar to the payer”, would seem, having regard to paragraph 31 of the trial Judge’s judgment, to have been instrumental in his concluding that he had jurisdiction to order the Registrar to repay the amounts paid by the respondent in this case after the receipt by the Registrar of the statutory declarations by the respondent and the mother stating that the former is not the father of L.

This question may perhaps legitimately be asked: if an obligation in the Registrar to repay monies to the payer liable under a registered maintenance liability (an obligation apparently recognised in s.79(1)(b)(ii) of the Collection Act) is not created by s.75(c) of the Act, where is such an obligation created by this legislation? But more relevant for present purposes, is the question: where is any power conferred on the court to order such a repayment?

The first is not an easy question to answer. The wording of s.79(1)(b)(ii) itself suggests that such an obligation can arise only “because of a subsequent variation to particulars of the entry in the Child Support Register in relation to the liability” [emphasis added]. Counsel for the appellant drew our attention to a number of sections in the Collection Act which impose obligations on the Registrar, or empower the Registrar, to vary particulars of entries in the Child Support Register: see ss.36, 37, 38, 38A, 38(b), 39(6), 39A(7), 39B(8), 40, 41, 42, 42A, 42B, 44 and 65B. However, none of those sections provides that, if upon or as a result of a variation of the particulars of an entry in the register, a payer liable under a registered maintenance liability has paid to the Registrar monies which that payer was not or is not, in accordance with those varied particulars, liable to pay, then those monies shall be repaid to that payer by the Registrar.

We suppose that it is possible to infer, from s.79(1)(b)(ii) that it was the intention of the legislature that in such circumstances the amount overpaid by the payer should be repaid by the Registrar. However, if that be the case, then the legislature failed to invest this Court with jurisdiction to order the Registrar to make such repayment. Nothing in the Collection Act, invests this Court with such jurisdiction and, for the reasons we have already given, s.143 of the Assessment Act, properly construed, does not do so either.

Accordingly, we conclude that neither s.79(1)(b)(ii) nor s.75(c) of the Collection Act imposes an obligation upon the Registrar, enforceable by an order of this Court, to repay to the payer of a previously registered registrable maintenance liability, monies paid in respect of that liability, at least when those monies have not first been recovered from the payee, pursuant to s.79(1)(b)(ii).

For those reasons, we uphold grounds 1, 2, 3 and 5 of the Notice of Appeal.

Ground 4

“4. The learned trial Judge erred in finding that, in this action, it was just and equitable to make an order for repayment by the Registrar under section 143(3) of the Assessment Act. The learned trial Judge should have found that in making an assessment between relevant persons of what is just and equitable for the purposes of adjusting or giving effect to the rights of parties and the child concerned, that it was not just and equitable for an order for repayment to be made against the Registrar.”

In view of our conclusion that the trial Judge erred in holding that s.143 of the Assessment Act conferred jurisdiction upon him to make an order against the appellant for the recovery of monies paid by the respondent, as child support for L, after 22 December, 1998, it is unnecessary for us to consider this ground, which challenges his Honour’s conclusion that it was “just and equitable” under s.143(3), to make the order which he did.

Ground 6

“6. The learned trial Judge erred in finding that, as an alternative basis for jurisdiction supporting the making of an order against the Registrar, section 105(2) of the Registration and Collection Act and/or section 100(3) of the Assessment Act and/or section 141(1)(m) of the Assessment Act permitted the Court to make the orders which were made (Judgment paragraph 34). The learned trial Judge should have found that section 105(2) of the Registration and Collection Act, section 100(3) of the Assessment Act and section 141(1)(m) of the Assessment Act were concerned only with matters of procedure and the overcoming of difficulties arising in matters where jurisdiction exists and that those provisions do not confer any substantive jurisdiction on this Honourable Court.”

This ground challenges the trial Judge’s reliance, in paragraph 34 of his judgment, upon s.105(2) of the Collection Act and ss.100(3) and 141(1)(m) (intended as 141(1)(n)) of the Assessment Act as sources, alternative to s.143 of the Assessment Act, of a power in the Court to order the repayment by the appellant to the respondent of the monies paid by the latter, as child support for L, after 22 December, 1998. However, his Honour did not explain the basis of that reliance.

Senior Counsel for the appellant submitted that s.105(2) of the Collection Act and s.100(3) of the Assessment Act “are concerned only with matters of procedure and the overcoming of difficulties arising in matters where jurisdiction exists” and “do not confer any substantive jurisdiction on this [sic.] Court”. [2] Senior Counsel further submitted that s.141 of the Assessment Act, including s.141(1)(n), “establishes the general powers of the Court under the Assessment Act, but does not create a power to make an order that is not otherwise within the specific provisions of the legislation”. [3]
[2] Submissions by the Child Support Registrar dated 21 August, 2001, paragraph 55.
[3] Submissions by the Child Support Registrar, paragraph 55.

As authority for the submissions referred to in the immediately preceding paragraph, senior counsel for the appellant relied upon the judgment of Dawe J in Boehm v Baker & Deputy Child Support Registrar [2001] FamCA 659 (unreported – judgment delivered 5 July, 2001). In paragraphs 55 to 58 of her judgment in that case, Dawe J rejected Kay J’s reliance, in paragraph 34 of his judgment, upon the three sections of the two relevant Acts referred to above, as an alternative source of power for the order which he made against the appellant in this case. Her Honour did so, substantially for the reasons summarised in the submissions which we have quoted in paragraph 67 hereof. We agree with her Honour’s reasons for rejecting Kay J’s approach to this aspect of the case, and therefore accept the submissions for the appellant in support of this ground. This ground is therefore also upheld.

It is proper, at this point, for us to note that, despite her rejection of that part of Kay J’s reasoning in this case, Dawe J, in Boehm v Baker (supra), agreed with his Honour’s interpretation of s.143 of the Assessment Act and of ss.75, 76 and 79(1)(b)(ii) of the Collection Act. It follows from what we have said earlier in this judgment that we do not agree with her Honour’s interpretation of those sections, particularly her interpretation of s.143 of the Assessment Act, which both her Honour in that case, and Kay J in this case, correctly identified as the crucial section for the purpose of the proceedings.

We acknowledge that the position, so far as the liability of the appellant to repay monies collected in circumstances such as exist in this case, is far from clear, and the legislation, in this respect, less than satisfactory. It is an area in which there is clearly room for a difference of opinion, and we think it would be highly desirable for the legislature to clear up the uncertainty by making appropriate amendments to the legislation. However, on the legislation as it presently stands, we are simply not satisfied that that there is any jurisdiction in this Court to order the Commonwealth (or the appellant, if, despite the absence of any specific provision to the effect that the appellant stands in the shoes of the Commonwealth for all purposes under the legislation, the appellant may properly be taken to represent the Commonwealth in this context) to repay to the payer monies paid under a registered maintenance liability which is subsequently invalidated by a declaration under s.107 of the Assessment Act.

Ground 7

“7. The learned trial judge erred in finding that the Registrar was entitled to but failed to delete the entry from the Child Support Register under section 40 of the Registration and Collection Act.”

This ground challenges the trial Judge’s apparent reliance, in paragraphs 28 to 30 of his judgment (see paragraphs 28 and 29 hereof) upon the Registrar’s duty, under s.40 of the Collection Act, to delete an entry from the Child Support Register when “satisfied that [it] wrongly exists”, as a basis for making the order which he made. Although his Honour did not say so specifically, the clear inference from paragraphs 28 to 30 of his judgment is that the appellant had both the power and the duty to delete the relevant entry from the Register once the respondent and the mother provided statutory declarations that the former was not L’s father.

In support of this ground, senior counsel for the appellant submitted [4] that s.40 is designed to empower the Registrar to delete an entry in the Register when satisfied, by production of a Court order (such as a declaration under s.107 of the Assessment Act) that that entry “wrongly exists” and is not designed to empower the Registrar to delete such an entry upon some informal basis, such as the production to him of evidence which, if accepted, would lead to that conclusion. It was submitted that “[i]t is for the Court, and not the Registrar by way of administrative action, to determine such issues and make the appropriate declarations or other orders”. It was further submitted that “it would … circumvent the role of the court in determining, pursuant to s107 of the Assessment Act, whether a grant of administrative assessment of child support should have been made,” if this section empowered the Registrar to delete an entry without a court order.
[4] Submissions by the Child Support Registrar, paragraphs 60-63

In his oral submissions to the Court, senior counsel for the appellant further submitted that to interpret s.40 as empowering the Registrar to alter the Register in the circumstances with which the Registrar was presented in this case in December, 1998, would be to put the Registrar “in a position of judge and jury” in which he/she would have to decide possibly contentious issues. For example, the Registrar would have to decide whether an affidavit or statutory declaration purporting to be signed by the person entitled to payments under a registered maintenance liability had actually been signed by that person, and, if so, whether that person had done so voluntarily, or under some form of duress or as a result of some collateral promise. These, it was submitted, were questions to be determined by a court, not by the Registrar. In short, it was submitted that s.40 of the Collection Act “is an administrative provision” or a “clean up provision” designed to enable the Registrar to make the necessary adjustments to the Register once the court has made the appropriate declaration or order which renders the existing entry “wrong”.

Counsel for the respondent submitted, on this point, that s.40 of the Collection Act created an obligation upon the Registrar to delete the entry in the Register, in circumstances which were shown to exist in this case from 22 December, 1998. However, he conceded that there is nothing in this section, or elsewhere in the Act, which expressly provides that the Registrar must act upon receipt of statutory declarations in the terms of those in question here. But he maintained the position that there was “not much more that the parties could have done”, and that although it was always open to the respondent to make an application for a declaration, under s.107 of the Assessment Act, that was only “an application one makes when there is a contest over the issue … between the parties”, which was not the situation in this case.

We accept the submissions for the appellant in relation to this ground. In our view, the Registrar was not obliged to delete the relevant entry from the Register upon receipt of the statutory declarations from the respondent and the mother. There is nothing in s.40 which defines the circumstances in which the Registrar should be “satisfied that an entry wrongly exists in the Child Support Register” [emphasis added] so as to oblige him to delete that entry. In the absence of such a definition, we consider the section to be purely administrative, providing the Registrar with the necessary legislative fiat to correct the Register to bring it into line with any legally binding determination by a court of competent jurisdiction which renders the Register, in its present state, “wrong”. Mere statutory declarations, whether authenticated or otherwise, by the persons apparently having an interest in the entry, are insufficient to invoke that duty of correction. To interpret the section as requiring the Registrar to act upon such inconclusive and potentially challengeable evidence would be to provide a recipe for disputation and confusion, when there is prescribed, within the Act, a mechanism (by way of a declaration under s.107) for obtaining an authoritative adjudication by a court of the facts necessary to underpin such a correction. Accordingly, this ground of appeal is also upheld.

Summary of Conclusions

For the foregoing reasons, we are of the view that the trial Judge erred in concluding that he had power to order the Registrar to repay to the respondent the sum of $4,290.32 paid by him to the Commonwealth, pursuant to s.30 of the Collection Act, after 22 December, 1998, in respect of his registered maintenance liability which, until the declaration made by his Honour on 6 March, 2001, obliged him to make payments of child support for the support of the child L. Accordingly, the application for leave to appeal should be granted, the appeal should be allowed, and so much of his Honour’s orders of 9 April, 2001 as requires the appellant to pay that sum to the respondent should be set aside. In addition, that part of order 1 of 9 April, 2001 which stipulated that the applicant (i.e. the respondent) “be entitled to execute this order only to the extent of recovery of the total sum of $4,290.32”, being apparently designed to prevent recovery of more than the total sum in circumstances where the appellant and the mother were made jointly and severally liable for it, should also be deleted, given our discharge of the appellant’s liability.

COSTS

At the conclusion of the appeal hearing, counsel for the appellant informed us that if the appeal should succeed the appellant would seek no order for the costs of the appeal. There is no basis for any costs order in favour of the unsuccessful respondent. Accordingly, there will be no order as to costs.

ORDERS

The orders of the Court therefore are:-
The appellant is granted leave to appeal from the order of this Court of 9 April, 2001 that the appellant pay to the respondent the sum of $4,290.32.
The appeal is allowed.
Order 1 of the orders of the Court made herein on 9 April, 2001 is varied by deleting therefrom the words “the Registrar of Child Support and”, and by further deleting therefrom the words, “The applicant to be entitled to execute these orders only to the extent of recovery of the total sum of $4,290.32”.

I certify that the preceding 78 paragraphs are a true copy of the reasons for judgment delivered by this
Honourable Full Court.
Sgnd: L. Kopp

Associate

[2002] FamCA 182

21 March 2002