Conomy and Family Court of Australia
[2000] AATA 536
•3 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 536
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V1999/1399
GENERAL ADMINISTRATIVE DIVISION )
Re RICK CONOMY
Applicant
And FAMILY COURT OF AUSTRALIA
Respondent
DECISION
Tribunal Mr J. Handley, Senior Member
Date3 July 2000
PlaceMelbourne
Decision The decision under review is set aside and in substitution it is decided that filing fees payable by the applicant be waived.
….…Sgd. Mr J. Handley…….
Senior Member
FAMILY COURT OF AUSTRALIA; Respondent refused to waive filing fees; whether payment of fees would cause financial hardship; decision set aside.
Administrative Appeals Tribunal Act 1975 s43 (2)(a)
Family Court of Australia Regulations 1, 11(7)(e) 16A(1)
REASONS FOR DECISION
3 July 2000 Mr J. Handley, Senior Member
In this application oral reasons for decision were delivered following the hearing of the application on 14 April 2000. The applicant then appeared without representation. The respondent did not appear. The respondent elected, prior to the hearing to rely on documents that it had filed pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The respondent also chose not to file any written submissions despite being invited to do so.
The oral decision made was that the decision under review be set aside and that filing fees payable in respect of proceedings at the Family Court be waived (refer later).
Subsequently the respondent has requested written reasons for decision pursuant to s43 (2A) of the Administrative Appeals Tribunal Act. These reasons are provided pursuant to that request. The background to the proceedings may be briefly summarised as follows.
The applicant's wife instituted proceedings in the Family Court of Australia at the Melbourne Registry. Certain orders were made by the Family Court. The applicant, by his solicitors, decided to lodge documents, one of which is described in the T documents as a "Response to Application for Final Orders". Apparently this document attracts a filing fee of $152. The applicant's solicitors made an application to waive payment of the fee. The application was made on the basis of financial hardship.
On 27 October 1999 an officer of the Family Court described as "Marilyn" (refer T6 page 18) decided that the applicant was not entitled to waiver because, having regard to his fortnightly income and fortnightly expenses he had a disposable fortnightly income of $24.00 and had liquid assets of $200.00.
The applicant subsequently requested a review of that decision and lodged a number of financial documents in support of his application for waiver.
On 17 November 1999 a "delegated officer" (T8) also described at T9 as a "deputy registrar" refused the request for reconsideration on the basis that "no special circumstances proved in documents provided on reconsideration of decision". It was also decided that "your income per fortnight exceeds your expenses. Your expenses per fortnight are not excessive and no further proof re the debts or hardship were provided in the additional documents you filed on 12/11/99".
The applicant subsequently applied to this Tribunal for a review of the latter decision made by the respondent's delegate.
Regulation 1 of the Family Law Regulations 1984 provide for the payment of filing fees in respect of certain proceedings.
Regulation 11(7)(e) provides that a fee is not payable if
"a registrar, having regard to the income, day to day living expenses, liability and assets of the person liable to pay the fee, waives payment of the fee because, in his or her opinion, it would cause financial hardship to the person".
If a decision is made by a registrar pursuant to Regulation 11(7)(e) of the Regulations refusing to waive a filing fee payment, review may be sought of that decision at this Tribunal pursuant to Regulation 16A(1).
I have observed during the course of preparing these written reasons for decision that there does not appear to be, within the T documents filed, a decision made by a "registrar" as a person of that title appears at Regulation 11(7)(e). I note that the decision under review made by the "deputy registrar" (T9) is the same person referred to in T8 as a "delegated officer". I have assumed for the purposes of these reasons that a lawful delegation has been made to the decision maker at T8 and T9 and that for the purposes of the regulations that person is a "registrar" and capable of making a decision under Regulation 11(7)(e). No issue was taken by the applicant in these proceedings with respect to the qualification of this person to make the decision and I have for the purposes of these reasons assumed that the person who made the decision under the review is lawfully entitled to make that decision. I also note that the decision maker decided there was an absence of 'special circumstances'. The standard to be applied to qualify for exemption is 'financial hardship' (refer Regulation 11(7)(e).
the decision making processThe decision under review was made apparently with regard to "guidelines" published by the Family Court and made available to potential applicants. The guidelines record that the "Family Court of Australia, in consultation with other agencies, has drawn up three tests to assess whether a fee should be waived. These guidelines set out the three tests. Use the tables to help work out whether you qualify. You must meet all three tests for a fee to be waived. The form you will need is called a "waiver" form."
Within the body of the same form are certain tables, which purport to test or determine a persons eligibility for waiver of filing fees. The tables have recorded amounts with respect to income, assets and liabilities. It would seem that if a person's income, assets and liabilities exceed the amounts described that waiver would be permitted. Conversely if a persons income, assets and liabilities are below the amounts described waiver would not be granted. It would appear also from the language used in the "guidelines form" and from the methodology adopted by the decision maker that unless all of the income, assets and liability criteria are exceeded that waiver would not be granted.
The relevance of consideration of an applicant's income, day-to-day living expenses and liability and assets has its genesis at Regulation 11(7)(e). The financial criteria applied by the respondent, forming part of its guidelines, was apparently devised "in consultation with other agencies". The methodology adopted to devise the limits imposed by the guidelines was absent. I have assumed that the guidelines have been published by the respondent to ensure consistency of decision making. Such an approach is to be applauded so long as it does not cause adherence to a regime which disregards individual circumstances and causes the absence or interference with a properly exercised discretion required by a "registrar" under Regulation 11(7)(e).
The "guidelines" are not the Regulations of the Family Court and they have no force of law. In administrative decision making, the publication by departments and agencies of guidelines, policy manuals and other documents, designed to assist decision makers and promote consistency of decision making are useful tools but the rights of individual citizens and the lawful obligations of decision makers to those citizens should not be overlooked or ignored.
In the present circumstances – and in fairness to the decision maker – it would appear that the applicant's financial circumstances have changed slightly since the original application for waiver.
The applicant gave evidence that his present fortnightly salary net is $1532.00. His present fortnightly expenses and liabilities amount to $1628.00. His liabilities, therefore, exceed his income.
The applicant gave evidence that his only assets presently amount to a joint interest as a tenant in common in the former matrimonial home and his superannuation. The applicant said that the home presently has a mortgage where $88,000 remains outstanding. The applicant has $13,000 in credit in his superannuation fund, to which he is presently not entitled and over which he ceased contributions many years ago. He has recently been advised by his solicitors that they will cease acting for him until he pays them the sum of $5,000. He presently is making contributions to the solicitors with respect to fees incurred to date. It would appear that the applicant has not qualified for legal aid.
Having regard to the financial circumstances, described by the applicant in his evidence at the hearing on 14 April 2000, I am satisfied that the applicant would be exposed to financial hardship if he were required to pay the filing fee required by the respondent, having regard to his income, his day-to-day living expenses and his liabilities and his assets.
It was in those circumstances that I decided that the decision under review be set aside and in substitution it was decided that the applicable filing fee be waived.
I certify that the twenty one (21) preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed: Linda Nemeth ............................................
SecretaryDate of Hearing 14 April 2000
Date of Decision 3 July 2000
Counsel for the Applicant
Solicitor for the Applicant
Counsel for the Respondent
Solicitor for the Respondent
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