ChJ and Child Support Agency
[2004] FMCAfam 149
•3 February 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CHJ & CHILD SUPPORT AGENCY | [2004] FMCAfam 149 |
| CHILD SUPPORT – PRACTICE & PROCEDURE – Contempt of Court – what constitutes – whether a contravention of an order is a contempt. Family Law Act 1975 (Cth), ss.112AD; 112AP |
| Applicant: | H J C |
| Respondent: | CHILD SUPPORT AGENCY |
| File No: | PAM3445 of 2002 |
| Delivered on: | 3 February 2004 |
| Delivered at: | Parramatta |
| Hearing dates: | 2 & 3 February 2004 |
| Judgment of: | Scarlett FM |
REPRESENTATION
The Applicant appeared on his own behalf.
| Solicitor for the Respondent: | Mr McWhinney |
| Solicitors for the Respondent: | Child Support Registrar |
ORDERS
The Application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM 3445 of 2002
| H J C |
Applicant
And
| CHILD SUPPORT AGENCY |
Respondent
REASONS FOR JUDGMENT
Application
I have taken the opportunity to consider the written material that has been submitted today. The application before the Court is an application by the applicant father in these proceedings that the Child Support Agency should be dealt with for Contempt of Court pursuant to section 112AP of the Family Law Act. The contempt which is alleged to have occurred has been particularised as certain actions in contravention of a stay order originally made by this Court on the 17th September 2002 and confirmed on the 5th December 2002. The terms of that order were that:
All actions by the Child Support Agency concerning arrears for child support on condition that the applicant continues to make payments at the rate of $100 per week by deduction from payments owing from 12 September 2002 are stayed.
The terms of the order are perhaps not drafted with the precision which I would prefer but I am of the belief that the meaning was clear. What the applicant says is that there are five ways in which the Child Support Agency has committed a contempt of Court by disregarding that order. They are described as follows:
(1)10 letters of demand for payment of arrears from March to December 2003;
(2)interception of tax return dated 16 September 2002;
(3)interception of tax return dated 31 March 2003;
(4)phone call from child support for increased deductions to clear arrears 3 June 2003;
(5)17 December 2003 notice of change of assessment to salary deductions.
The applicant has provided details of these breaches which he claims in an affidavit which was filed at this Court on the 9th January. He annexes to that affidavit a copy of the original order, a copy of a letter from the Regional Registrar Child Support dated the 12th February 2003 concerning the order, he annexes copies of a statement headed Payments Expected over the 10 month period. He further annexes copies of a letter dated the 17th September 2002 not the 16th referred to, concerning appropriation of an income tax refund pursuant to section 72 of the Child Support (Registration and Collection) Act 1988 and a further letter dated the 31st March 2003 relating to a similar action. He annexes a copy dated the 7th April 2003 responding to telephone advice from the applicant confirming that that amount has been refunded offering an apology.
There is a copy also of a letter from the applicant to the Child Support Registrar relating to a telephone call of the 3rd June, relating to increased deductions and a copy of a letter dated the 17th December 2003 addressed from the Acting Regional Registrar Child Support addressed to the applicant in these proceedings, addressed I notice in the most familiar terms by his first name as “Dear H” rather than Mr C, which may or may not be indicative of the correspondence style of the Child Support Registrar or may be indicative of some familiarity with the applicant, I do not know.
Those are the bases upon which the applicant requires the Child Support Agency to be dealt with for contempt of Court. Mr McWhinney who appears for the respondent opposes that application and seeks in fact summary dismissal of the application on a number of grounds. He objects to the description of the respondent as the Child Support Agency pointing out that the proper party to these proceedings would be the Child Support Registrar. He objects to the way in which the documents have been served by registered post rather than served by hand. He takes issue with the characterisation of the actions referred to indicating that they are not in his view acts of contempt of Court at all or indeed a contravention of the order and refers to perhaps what is the applicant's strongest point, the interception of the income tax refund from March of this year and pointing out that that was an error which would not amount to a contempt.
The applicant has replied to these submissions in a written submission which was tendered today over the objection of the legal officer from the Child Support Agency. His view was that the submission added nothing to what had been put to it orally. I considered that objection but considered it appropriate in the interest of justice to consider the material contained in the written submission. In the written submission the applicant referring to the main criticism as being in truth attempts to collect arrears contrary to the orders.
I propose first of all to look at the technical objections. The respondent is described as the Child Support Agency whereas the submission is that an agency as such cannot be a party to proceedings let alone a respondent to commence proceedings as it is an organisation. The correct party should be the Child Support Registrar. Now there is support for this submission in the Child Support (Registration and Collection) Act1988 itself. Section 10 of that Act refers to the Registrar. Section 117 refers to situations where the Child Support Registrar is the party. I am of the belief that the submission as to the incorrect party is correct and that the appropriate party to proceedings as set out by the legislation is in fact the Child Support Registrar.
I propose to deal however with the other matters raised. There is objection taken to the mode of service as being service that is not in accordance with the Rules. What happened is that the applicant tendered a letter to the acting Regional Registrar dated the 12th January in which he says:
I enclose a copy of an affidavit of service affirmed today that I have served documents by registered post on the Child Support Agency.
He then goes on to refer to a particular application. There is in fact evidence to show that the documents were served by registered post, the argument is raised that that is bad service. The first comment one would make as to why one would forward an affidavit of service to the respondent, the appropriate place for any affidavit of service should be filing at Court. The letter is perhaps misleading in that paragraph 2 of the letter says that the application is an application to the Federal Court and not to the Federal Magistrates Court for contempt and says that the matter will be heard in the Federal Court on 2 February 2004.
That is incorrect, the Federal Court does not usually sit at this Registry, the Federal Magistrates Court does but the Courts are separate. The Federal Court and the Federal Magistrates Court are no more the same organisation as the Federal Magistrates Court and the Family Court.
I am not of the view however that that covering letter would be sufficiently confusing to cause any concern. The documents themselves make it clear to where the application is to be heard.
The applicant says that he had properly served the application by addressing it to Mr Y and that he served the application by registered post. He said he was instructed by a processing officer of the Court. Of course registry facilities for the Federal Magistrates Court are provided by the Family Court and the fact is that if the applicant had received that advice it was wrong, it is just not correct.
The Rules of the Federal Magistrates Court set out quite clearly the requirements for service. Rule 6.06 which is headed, When is Service by Hand Required, says in sub-rule (1):
Service by hand is required for an application starting a proceeding or a subpoena requiring attendance of a person.
Sub-rule (2) sets out situations where service by hand is not required such as if there are current proceedings or the Court directs that an application may be served in another way or a lawyer accepts service for a party or a lawyer accepts service for a person other than a party. None of those situations arise.
The fact is that this was an application commencing proceedings, it should have been served by hand according to Rule 6.06. Rule 6.08 sets out the way in which service by hand is to be effected on a corporation, unincorporated association or an organisation. The respondent's contention that the service was not properly done has of course the support of the Rules. In this case the respondent has appeared represented by a legal officer and whilst the question of service was one of the challenges to the application I am of a view as there are other challenges to the application that the defect in service has for all intents and purposes been cured by the appearance yesterday and today. Whilst there was bad service this does not act as a lethal defect as far as the proceedings before me today are concerned.
I look at the substance of the application. As I said there are five different types of breaches alleged although the first category contains 10 documents which the applicant describes as letters of demand. Each document is in fact the document headed Payments Expected Account Details and Payment Advice. The letter dated the 12th February 2003 from L S the Regional Registrar Child Support, which was quite appropriately annexed by the applicant to the affidavit sets out the order that was made on the 17th September 2002 and goes on to talk about the Agency's legal interpretation of this order. That paragraph says:
According to the agency's legal interpretation of the stay order no enforcement action will be taken against your child support arrears. This however does not mean that the arrears will be discharged or suspended. The arrears and later payment penalties will continue to accrue. The agency will consider to review - remit late payment penalties when the maintenance amount outstanding is paid.
In my view this paragraph contains an accurate interpretation of the stay order. It effectively distinguishes between the recording on the register of arrears and a request for payment of those arrears on the one hand from enforcement of payment of those arrears on the other. Enforcement proceedings are proceedings which are taken by a party to force another party to make a payment. Making a demand for a voluntary payment is not to my mind an act of enforcement.
I am mindful also that the Child Support (Registration and Collection) Act refers to the Child Support Registrar's power to impose but also remit or reduce late payment penalties. The Registrar has the power to remit those penalties and not seek the payment of those at all and indeed that is referred to in the letter. The monthly statements received by the applicant do not constitute a letter of demand or a method of enforcement and cannot therefore be regarded as a breach of the stay order.
There are two instances of what the applicant describes as an interception of tax return. The use of the term tax return is a vernacular term which is applied in the community to a refund of income tax. Technically a tax return is a document that a party furnishes to the Taxation Commissioner so that an assessment of income tax can be made and if necessary a refund can be prepared. It is however not uncommon these days for the term tax return to refer to a refund or a return of money.
Under the Child Support (Registration and Collection) Act the Child Support Registrar has the power to use such a refund towards payment of a child support debt and indeed there were two attempts to do that. The applicant says it is untrue of the Child Support Agency to say the first tax rebate intercept was the day before the first hearing when their letter of interception is dated the day of the hearing. Well indeed it is, but when one looks at he application setting out the alleged breach point 2 of paragraph 4 of Part B refers to interception of tax return dated the 16th December 2002. The reality is that the letter was dated the 17th September 2002, the date that the order was made where the respondent's legal officer was referring to an interception of a refund of income tax as having taken place on the previous day, quite clearly he was referring to the very date referred to on the applicant's application.
Had it taken place on the 16th September the breach would clearly not have been made out. For the applicant's case to succeed it would be necessary to show that the interception took place on that day after the order had been made. If the decision took place before the order was made by the Court then of course there is no breach of the order and the evidence does not permit me to show when on the 17th September such a step took place.
As far as the second matter was concerned on the 31st March 2003, the respondent was in error in that the interception of the income tax refund and applying it to the child support arrears was incorrect. It was a breach of the order which the respondent the Child Support Registrar admitted in a letter dated the 7th April 2003. The letter says there was a refund to the applicant and there was an apology. I will deal more with that particular instance later.
There is a reference to a telephone call from child support seeking increased deductions to clear arrears on the 3rd June 2003. I am not of a view that that can be characterised as enforcement action. Had the applicant chosen to comply with that request that is one thing, but if the applicant chose not to and indeed relied on the terms of the earlier order he was within his rights so to do.
Finally, there is a reference to a notice of change of assessment for salary deductions dated the 17th December 2003. The issue of an assessment is something that the Child Support Registrar does, that does not mean that the issue of a revised assessment has any bearing on efforts to enforce payments of arrears which are owing. The reality is that the order is all about arrears. I am not of a view therefore that that could be characterised as a breach of an order.
I propose to return to the actions of the Child Support Registrar of the 31st March 2003. That was an action taken under the Child Support (Registration and Collection) Act to apply an income tax refund towards payment of a child support debt. The stay order made on the 17th September 2002 and later continued clearly acted as a bar to taking that enforcement action. Equally clearly the respondent, when advised of that action which appears to be on the 7th April, realised that situation, refunded the amount quite properly, and also properly offered an apology. That does not mean that the breach did not take place, it did take place and the actions by the Child Support Registrar can be seen as a mitigation perhaps of the effect of that breach.
What I have to look at is whether that constitutes a contempt under section 112AP of the Family Law Act because, as is well known, child support proceedings in this Court are dealt with where a Court has jurisdiction by means of procedures available under the Family Law Act.
Section 112AP was never designed for contraventions of an order. It was designed for flagrant challenges to the authority of the Court such challenges would include such things as violence threatened or carried out on members of the Court staff or a judicial officer, disruption of proceedings, use of outrageous language calculated to threaten the authority of the Court or other acts of such a nature as to be a flagrant contempt. Section 112AP says that:
It applies to a contempt of Court that:
a)does not constitute a contravention of an order under this Act; or
b)constitutes a contravention of an order under this Act that involves a flagrant challenge to the authority of the Court.
There is a limitation in subsection 1A that it does not apply to a contempt that constitutes contravention of a maintenance order. Now, what then does section 112AP apply to? It does apply to actions of violent or disruptive behaviour, it can involve a contravention of an order that involves a flagrant challenge to the authority of the Court. Is a contravention of a stay order a flagrant challenge to the authority of the Court? I am of a view that it is not. The evidence before me clearly indicates that it was an error, when the error was brought to the attention of the Child Support Registrar that error was corrected and an apology was offered.
That may still constitute a contravention of an order notwithstanding the rectification and the apology. Such matters would only go to mitigation of any sanction imposed. I am of a belief however that such a contravention would be dealt with under section 112AD of the Family Law Act rather than section 112AP. Whilst I believe that the technical breach in the application by naming the wrong party would be sufficient to have the application struck out and whilst I have ruled that whilst the service was defective any injustice has been remedied by appearance I have concentrated on the subject matter of the application in order to indicate whether or not such an application should be entertained.
Quite clearly the applicant has concerns about the actions of the Child Support Registrar. If an application was brought under section 112AP against the correct respondent and served in a way that accords with the Rules, I am not of a view that the application would be successful because none of the material set out constitutes of the type of conduct section 112AP is designed to remedy. As I said the error of the 31st March may well represent a contravention which should be dealt with in respect of an application under section 112AD but that is another matter.
What Mr McWhinney for the respondent submits is that the proceedings should be dismissed summarily. In doing so I refer to Rule 13.10 headed Disposal by Summary Dismissal. That rule provides that:
The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding if it appears to the Court that:
a)no reasonable cause of action is disclosed in relation to the proceeding or a claim for relief; or
b)the proceeding or a claim for relief is frivolous or vexatious; or
c)the proceeding or claim for relief is an abuse of the process of the Court.
The reason why I have conducted an examination of the subject matter of the application is that I believe it is an application which should be summarily dismissed pursuant to Rule 13.10. Looking at the three parts of that rule it does not come under sub-rule B as being a claim for relief that is frivolous or vexatious. It is misconceived but there is nothing from the documentation or from the demeanour of the applicant to indicate that the application was brought in anything other than good faith.
There are certainly frivolous and vexatious applications brought before the Court but there is no evidence here which indicates that that was the intention of the applicant. It is one thing to be frivolous or vexatious it is another thing just to be wrong.
I look at sub-rule C, the proceeding or claim for relief is an abuse of the process of the Court. There is nothing in the material which would allow me to find that this application, misconceived though it may be, is an abuse of the process of the Court. An abuse of process is a step taken which is mischievous, which brings about a situation which is not what the process of the Court was intended to do. I am of the belief that this application was brought in good faith.
However for the reasons that I have given I believe that sub-rule A applies that no reasonable cause of action was disclosed in relation to the proceeding, that if anything the one breach that is relied on, that of the interception of the tax refund of the 31st March 2003, was a contravention of a type that is specifically excluded by section 112AP. The appropriate application should have been under section 112AD and that is a separate application. It does not represent a contempt of the type constituted by the legislation and I am of the view therefore that there is no alternative but that the application is dismissed.
Costs
I note that no application for costs is sought and I make no order.
It is for these reasons that I make the Orders as set out at the commencement of this decision.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: C. Soliman
Date: 30 March 2004
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