Choate and Laird - [2011] FMCAfam 455

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CHOATE & LAIRD

[2011] FMCAfam 455

CHILD SUPPORT – Application for extension of time in which the applicant may apply for a departure order – the applicant’s delay in taking action – prejudice – refusal of leave.

Child Support (Assessment) Act 1989 (Cth), s.111

Applicant:

MS CHOATE

Respondent:

MR LAIRD

File Number:

DGC 3362 of 2010

Judgment of:

Riethmuller FM

Hearing date:

4 April 2011

Date of Last Submission:

4 April 2011

Delivered at:

Melbourne

Delivered on:

4 April 2011

REPRESENTATION

Counsel for the Applicant:

Ms Juneja

Solicitors for the Applicant:

Peninsula Community Legal Centre

Counsel for the Respondent:

The Respondent appearing in person by telephone link

ORDERS

The application filed on 1 October 2010 be dismissed.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

DGC 3362 of 2010

MS CHOATE

Applicant

And

MR LAIRD

Respondent

REASONS FOR JUDGMENT

(as revised from transcript)

This is an application for orders extending time within which to review child support assessments pursuant to the Child Support (Assessment) Act 1989 (Cth). The applicant mother seeks leave to reopen assessments for two periods; the first is from 1 January 2004 to 10 June 2004 and the second is from 1 January 2006 to 30 June 2008. The mother was at the relevant times the primary carer and the father assessed to pay child support. It is clear from the material that there has been a considerable difficulty between the parties over the years with respect to matrimonial matters generally and specifically with respect to child support. On the mother’s case, the father has not been a regular payer of child support nor has he lodged tax returns and other documents to facilitate the assessment of child support.
Section 111 of the Child Support (Assessment) Act provides an

18-month time limit on the backdating of any changes to child support assessments from the date of the application. The limitation period may be increased to a period of up to seven years under the current sections of the Act. Thereafter, it is not open to the parties to further review child support assessments. It seems clear that the principle behind the legislation is that child support matters ought to come to an end in a reasonable time period and ordinarily that would be within

18 months. In cases where parties can show appropriate reasons for an extension of time, the period can be extended for up to seven years.
In this case, the mother had brought an application for a change of assessment under Part 6A of the Child Support (Assessment) Act 1989 on 11 June 2004. On 9 August 2004, her application was successful. The senior case officer concluded that despite very low income amounts put forward by the father, he ought to be assessed upon an income of $45,000 per annum based upon gross figures from companies that he was contracting with in his work in the transport industry. The senior case officer specifically considered backdating that decision and declined to backdate it beyond 11 June 2004, the date the application was made.
The senior case officer’s decision extended the change of assessment through to 31 December 2005 on the basis that it would give the parties some certainty for a period into the future. There is nothing remarkable about the reasoning process or the terms of the particular decision. The mother took no action, it seems, as a result of that decision. The child support amount increased and the rate continued, as contemplated by the reviewer, until 31 December 2005.
On 1 January 2006, the child support assessment fell to around 20-odd dollars per week, as a result of the expiration of the previous review decision on 31 December and the commencement of a new child support period. It does not appear that the mother has brought a further application for a change of assessment in 2006, 2007 or 2008.
In 2009, a further child support review application was lodged and, again, the mother was successful in increasing the child support. On this occasion, the change was backdated to 1 July 2008. The senior case officer in that decision declined to backdate the change further and it appears could have backdated the change at least another five months after considering the facts and circumstances of the particular case.
An objection was lodged on 21 July 2010, well out of time. The objection was determined on 15 October 2010 with findings of upholding the senior case officer’s decision and, in particular, that the decision ought not to be backdated further than what the senior case officer had provided for.
The mother did not lodge an appeal to the Social Security Appeals Tribunal (‘SSAT’) with respect to the decision in that instance. That decision could have been the subject of an appeal to the SSAT. The mother outlines a number of factors explaining her delay. She states that she was caring for her own mother who sadly passed away at the end of 2004. In 2006, an accident befell upon one of the children who was hospitalised. In 2009 the mother had other court proceedings pending which she had to contend with.
The legislation requires that I consider all the relevant facts and circumstances in determining whether or not to grant leave to apply to vary a child support assessment that is more than 18 months old, having regard to the date of the application.
Importantly, I must consider the explanation provided for the delay, any prejudice to the mother, any prejudice to the father and any other relevant matters. In this case, the delay has been lengthy. The delay from the 2004 period is at the upper limit of the scale before it reaches a stage where leave cannot be given. This is not a case where the mother was not well aware of the processes available for the variation of child support assessment. The mother had successfully applied for a departure in 2004, having the father’s income set at $45,000 per year, although not entirely successful in that the decision was not backdated as far as she would have preferred. Neither party sought to challenge that decision by an objection or court proceedings.
The other events in the mother’s life, I have little doubt, were significant and impacted upon her capacities on a day-to-day basis. However, it is hard to say that these events, themselves, would explain such a lengthy delay. This is a situation where the mother had engaged in a process successfully once before and then only after a lengthy delay from 2006 to 2009 brought a further departure application. The mother also would have had benefit of access to legal advice in 2009 with other court proceedings and, alternatively, through legal aid or community legal services. At one stage, in an affidavit, she says that the application form is 40 pages long and it takes considerable work to fill in. I do accept that the application form may, from a superficial observation, appear relatively straight forward until one comes to actually gathering all the information that is reasonably required and setting it out accurately. I am not at all convinced that the application form itself is 40 pages long and that the rigors of completing a child support and departure application are as great as the mother presently puts forward.
I also note that in the material the mother points to some property purchased by the father. However, this was said to have been a transaction that occurred in 2002. The mother swears to having conducted a search and showing some change of name to the title holding in 2003. This could not be seen as more recent information that shows a different complexion upon the circumstances of the parties at the relevant time. Looking at the matter as a whole, I am not persuaded that the mother has given an adequate explanation for the delay with respect to the child support period, commencing 1 January 2006 nor the delay in her taking any action with respect to the earlier period in 2004.
I must turn to consider the question of prejudice. This case involves some difficult circumstances. On the mother’s case if she is ultimately successful, the father has arranged his affairs in a way that has frustrated and delayed the payment of child support, leaving her with a significant burden in caring for the children. However, it is for times long past and the full extent of her burden is not now entirely clear. One would have expected, in circumstances of an initial success, the mother would simply file an application in 2006 similar to the one she filed in 2004 if she sought to increase the child support assessment again if she was suffering hardship at that time. The delays from the senior case officer’s decision in 2009 through to the objection phase also indicate that she has not suffered considerable prejudice in that she has been able to have that objection decided.
The father has been self-employed for periods of time and he has filed no material. He was directed to do so and chose not to. It seems the father may have posted material by express post on Friday, and experience shows it is not surprising that the material would not be here by today. To the extent that he potentially suffers prejudice, it is from the fact that these are periods of time that are now many years in the past in a highly litigious and contentious environment between the parties. There are also potential prejudices because on both occasions the senior case officer had declined to backdate the decisions that were made against him beyond the particular date set out in the decisions.
With respect to the first decision, it seems to me that it was a decision squarely on the merits which neither party chose to challenge by way of appeal or further application.
With respect to the second senior case officer’s decision, it was certainly a decision on the merits in relation to backdating for up to five months. Had the senior case officer had the power to backdate further, this would have made no difference as the senior case officer was not prepared to backdate for the additional five months immediately prior to the change that was made. It is difficult to see that had the senior case officers had power to backdate even further than that, they would have exercised that power for a period long in the past when they would not exercise it in the months immediately preceding the commencement of the change that they made. In substance, this is a decision on the merits which has been the subject of an objection, albeit out of time and no appeal lodged to the SSAT by either of the parties. The potential prejudice that the husband suffers is that matters long in the past will now be litigated again, many years after the relevant events occurred.
In the circumstances of this case, it appears to be the type of case contemplated by the government in imposing the time limits that are contained within the Act. It is a case where, in substance, the issues have been dealt with on their merits in two previous decisions which have not been taken forward to the Court. It is not a case where the mother has, through later changes, been left in a situation where she is to repay child support to the father or to the Child Support Agency. Nor is this a case where there are some significant facts or circumstances that have only come to her attention in recent times. Similarly, it is not a case where she was naïve as to her rights or unaware or unable to access the processes, as she clearly was able to access them twice before and on both occasions eminently successfully, in increasing the child support rates that were applicable.
Ultimately, when looking at the matter as a whole, it seems that the mother has not discharged the onus that is necessary to obtain an order to increase the time in which she may apply for a departure.
I therefore dismiss her application.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Riethmuller FM

Date: 4 April 2011