Dixon v Child Support Registrar
[2017] FCCA 1540
•11 July 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DIXON v CHILD SUPPORT REGISTRAR | [2017] FCCA 1540 |
| Catchwords: FAMILY LAW – Costs – the applicant pay the respondent’s costs. |
| Legislation: Administrative Decisions (Judicial Review) Act 1977, ss.5, 10(1), 11 Child Support (Registration and Collection) Act 1988, ss.38A, 38B, 39, 39A |
| Cases cited: Bauer & Becker [2009] FMCAfam 480 Hopkins & Walker [2007] FamCA 317 Hopkins & Walker & Anor [2013] FamCA 616 In the Marriage of Zabeneh (1986) FLC 91-766 |
| Applicant: | MR DIXON |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRG 898 of 2016 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 31 March 2017 |
| Date of Last Submission: | 31 March 2017 |
| Delivered at: | Brisbane |
| Delivered on: | 11 July 2017 |
REPRESENTATION
| The Applicant appeared in person. |
| Solicitors for the Respondent: | Ms Rayment of Mills Oakley |
ORDERS
That the application for leave to proceed and leave to proceed out of time filed by applicant on 15 August 2016 be dismissed.
That the application in a case filed by the applicant on 7 March 2017 be dismissed.
That within twenty-eight (28) days the Applicant pay the Respondent’s costs fixed in the sum of $6,948.
IT IS NOTED that publication of this judgment under the pseudonym Dixon v Child Support Registrar is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 898 of 2016
| MR DIXON |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Mr Michael Hendy in relation to child support. Mr Hendy filed two applications;:
a)the first on 8 September 2016 for an extension of time in order to review a decision under the Administrative Decisions (Judicial Review) Act, 1977 (Cth) (‘ADJR Act’); and
b)the second application is an application in a case filed on 31 March 2017 where the applicant seeks various injunctions preventing the Child Support Registrar (‘the Registrar’) from collecting the child support debt that is owed by Mr Hendy. Mr Hendy also seeks an order that the respondent provide him with various documents.
Mr Hendy also seeks, although not in an application but rather in his outline of submissions, that he be excused from complying with an undertaking dated 4 June 2004 that was given to the Family Court of Australia. I intend to deal with the undertaking and then the application for leave to proceed and finally consider an analysis of the merits of the substantive application.
The Undertaking
On 4 June 2004, the applicant gave an undertaking to Justice Warnick in the Family Court of Australia at Brisbane that he will:
“Not bring any proceedings pursuant to the Child Support Act or any other associated legislation without first obtaining leave of the court pursuant to my Undertaking tendered on 3 June 2004.”
The applicant has annexed that undertaking to his affidavit filed on 15 August 2016. The undertaking was given to the Family Court and the only court that can excuse the applicant from his undertaking is the Family Court. I do consider that I could give the applicant leave to proceed on the basis of that undertaking if the merits of the case required it. However, I have no power to excuse the applicant from the undertaking given to the Family Court.
Leave to Proceed
This is not the first time that the applicant has sought leave to proceed in relation to child support. The matters in which the father specifically sought leave to proceed in relation to child support are:
a)Hopkins & Walker & Anor [2013] FamCA 616 where Justice Tree made an order that the father’s application for leave to commence his extant applications is dismissed and leave is refused;
b)Hopkins & Shorley & Anor (SSAT Appeal) [2014] FCCA 158 where Judge Coates of the Federal Circuit Court ordered that the notice of appeal (child support) be dismissed;
I also note that the father appealed orders of Justice Jordan in the matter Hopkins & Walker [2007] FamCA 317 where the Full Court dismissed the father’s appeal, but that was in relation to parenting matters.
In the decision of Justice Tree, the father’s application for leave to commence his applications in relation to child support was refused. I accept in the present case that the current applications before me fall within the scope of the father’s undertaking. Justice Tree at paragraph 37 of his decision notes:
“[37] It seems to me that the purpose of the father’s undertakings – which succeeded – was to persuade the Court that, if it was prepared to order ongoing contact between the children and the father, that could not, and would not, facilitate further conflict in this Court between the parties, without the Court’s express permission first obtained. As I read the reasons of Warnick J of 29 July 2004, the undertakings were a central platform of his Honour’s reasoning towards ordering that the father have contact with C.”
At paragraph 40 of Justice Tree’s reasons, his Honour said:
“Equally remarkably, he seeks orders in relation to child support, including most remarkably that “the CSA court orders made in 2005 be revoked, varied or permanently stayed.””
His Honour observed that virtually all of, if not entirely all of the orders, have no prospect of being made. In a very real sense the applicant father seeks to litigate issues that have been determined for many years.
The decision of Judge Coates in 2014 also dealt with the undertaking given to Justice Warnick on 4 June 2004. In that case Mr Hendy filed two appeals; one on 24 June 2013 and the other on 5 July 2013 in relation to child support against decisions that were made by the Social Security Appeals Tribunal (‘SSAT’).
Judge Coates referred to the decision of Tree J and noted that his Honour observed a paragraph 38 of his decision, against that background, in order to obtain a grant of leave the father would have to demonstrate that the circumstances are such that it is just to allow him to depart from a position he adopted before Warnick J.
I accept that leave should not be granted unless the Court is satisfied that the case has a reasonable likelihood of success (Langmeil & Grange [2013] FamCAFC 31). I note in In the Marriage of Zabeneh (1986) FLC 91-766 that overlapping applications should be prevented which amount to harassment and abuse of process involving enormous expense. The case also referred to the consideration of time and whether it would be reasonable to reconsider the issues.
I am satisfied for the reasons herein that it is not appropriate to grant leave to commence the proceedings because the applications would be likely to fail in any event. This is because of the long delay in seeking leave to proceed out of time and the fact that the appeal set out in the submissions for review under the ADJR Act did not have sufficient merit to justify the extension of time sought. I will discuss these propositions below.
Application for Extension of Time
In Hamden v Secretary, Department of Human Services [2013] FCA 3 Besanko J considered what is necessary to be successful in an application for an extension of time and to file an application for review under the ADJR Act:
“[35] The factors the Court takes into consideration in deciding whether to extend the time limit under s 11 of the ADJR Act are well established. Relevant to this case I think they are as follows:
1. The length of the delay;
2. The explanation for the delay;
3. The prejudice to the applicant if an extension of time is not granted;
4. The prejudice to the respondent and any third parties if an extension of time is granted;
5. The nature of the decision and, in that context, relevant public interest considerations including the need for finality in litigation; and
6. The merits of the substantive application.”
At paragraph 36 of that decision the Judge records:
“[36] This Court has said in the context of the time limit under the Federal Court Rules 1979 (Cth) O 52 r 15(2)) that something very persuasive will be required to justify a grant of an extension of time after, for example, a year: Jess v Scott (1986) 12 FCR 187 at 195. McHugh J made a similar observation in the context of the High Court’s jurisdiction to issue prerogative writs: Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [16]. It is proper to take into account the merits of an applicant’s substantive application in considering whether to extend time, and the Court will not grant an extension of time where an applicant has no arguable case for relief: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 at 348-349 per Wilcox J; Re Commonwealth of Australia; Ex parte Marks (2000) 75 ALJR 470 at 474 [17]; WAJU v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 150 at [18] per Moore J.”
Length of the Delay and the Explanation for Delay
In the present case the period of delay is substantial. The time limit prescribed under the ADJR Act is twenty-eight days after the decision was furnished to the applicant (s.11 of the ADJR Act). The decisions that the applicant appears to be looking to review go back to 1995 with the most recent one being made in 2013. It is not all together obvious on the face of the application which specific decisions the applicant seeks to review, but the delay is between twenty years and three years. In my view the delay is therefore substantial.
In line with Hamden (supra) something very persuasive would be required to justify a grant of extension if it involves more than one year. The evidence of the applicant is that he has not until recently become aware of the full extent to which the child support agency has failed to comply with the requirements of the Child Support (Registration and Collection) Act 1988 (‘the Collection Act’) and manipulate the Collection Act to suit themselves about the outcome they want to give.
There is no evidence of the new information that the applicant has obtained and I accept the submission of the Registrar that given the applicant’s history with both the Department and the courts over the years, it is doubtful that he has obtained any new information that he was not already in receipt of.
The applicant also indicates that he was suffering from depression from 2004 to 2007, however he does not provide any medical evidence of this. That of itself, even with medical evidence, would not justify the further subsequent delay.
Prejudice to the Applicant if an Extension of Time is not granted
The prejudice to the applicant is that he would not be able to have the various decisions reviewed and would therefore continue to owe a sum of about $24,000 in child support.
Prejudice to the Respondent
The prejudice to the respondent in this case, the Registrar, and indeed the person who is owed the child support, the mother of the applicant’s children, in my view would be significant. It would require the Registrar, if the extension of time was granted, to produce documents going back a very long time that they may not even have in their custody or control any more. It would change the amount of child support that the applicant owes to the mother of his children.
I note the applicant argues that his privately collected child support should offset this debt and it is a matter for him if he pursues that. The assessment has been in place for some considerable amount of time and it is likely that the mother of the children has relied on that assessment. I note the mother is not a party to these proceedings.
Nature of the Decision and the Need for Finality
There can be no area where there is a need for finality that is more obvious than in child support. Child support is meant to be paid as maintenance for children and it is not something that should be dragged on for years in never-ending litigation. It is in the public interest for parties to have finality in relation to child support given the nature of what the payments are there to do, which is to provide financial support for children.
Merits of the Substantive Application
I intend to review the merits of the application below, but my assessment is that the application is lacking in merit for the reasons set out below. For the reasons included herein, I do not intend to grant an extension of time.
Review of the Merits
Legal Framework
An application made to the Federal Circuit Court of Australia for an order to review a decision in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision by a person aggrieved on any one or more of the following grounds is set out in s.5 of the ADJR Act:
“(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Circuit Court for an order of review in respect of the decision on any one or more of the following grounds:
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorized by the enactment in pursuance of which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;
(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(j) that the decision was otherwise contrary to law.
(2) The reference in paragraph (1)(e) to an improper exercise of a power shall be construed as including a reference to:
(a) taking an irrelevant consideration into account in the exercise of a power;
(b) failing to take a relevant consideration into account in the exercise of a power;
(c) an exercise of a power for a purpose other than a purpose for which the power is conferred;
(d) an exercise of a discretionary power in bad faith;
(e) an exercise of a personal discretionary power at the direction or behest of another person;
(f) an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
(g) an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power;
(h) an exercise of a power in such a way that the result of the exercise of the power is uncertain; and
(j) any other exercise of a power in a way that constitutes abuse of the power.
(3) The ground specified in paragraph (1)(h) shall not be taken to be made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which he or she was entitled to take notice) from which he or she could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
I note that the right conferred under the ADJR Act, in particular in ss.5, 6 and 7, on the applicant to make an application to the Federal Circuit Court of Australia are in addition to and not in derogation of any other rights the person has to seek review by a court, tribunal, authority or person (s.10(1)(a) of the ADJR Act).
The Court has a discretion to refuse to grant the application for review for the following reasons:
a)That the applicant has sought a review by a court of that decision, conduct or failure, otherwise than under the ADJR Act; or
b)That adequate provision is made by any law other than the ADJR Act under which the applicant is entitled to seek a review by a court, tribunal, authority or person of that decision, conduct or failure.
The Grounds for Review
I accept that the applicant’s affidavit refers to almost every decision made by the Registrar or his offices dating back to 1995. I consider that the applicant will have some difficulty in pursuing these applications under the ADJR Act given that there was, in my view, adequate provision under the child support legislation for the relief he now seeks.
1) Ground 1- The change of collect
The applicant alleges that the Department breached ss.38A, 38B, 39 and 39A of the Collection Act when it ‘without my knowledge of(sic) consent’ changed collection to private collect. The periods in question were 1 January 2007 to 30 June 2008 and October 2009 to 23 August 2012.
There is no evidence provided by the applicant to support the contention that the Department failed to observe the procedure required by law. Furthermore, the child support legislation in my assessment made adequate provision for the relief the applicant seeks.
2) Grounds 2 and 3
The decisions of the Court to vary assessments are specifically excluded under review from the ADJR Act (s.3 of the ADJR Act and schedule 1(s) of the ADJR Act). Accordingly, these grounds must be struck out.
3) Grounds 4 to 8- Child Support Agency’s Assessment
These assessments go back to 1 July 2004 through to 13 November 2013. In my view, allowing the applicant to review these administrative assessments would defeat the intention behind restricting retrospective variations.
Brown FM, as he then was, in Bauer & Becker [2009] FMCAfam 480 at paragraph 21 provides good reasons why these type of decisions should not be reviewed retrospectively:
“The legislative provisions, which relate to the amendment of any administrative assessment of child support that is more than eighteen months old were inaugurated following the recommendations of the Ministerial Taskforce on Child Support, chaired by Professor Parkinson. The Taskforce was concerned to limit retrospective applications in respect of child support and the government accepted its recommendations in this regard.”
In relation to grounds 4-8, I am therefore not satisfied in terms of merit, that it would justify an extension of time. I have therefore come to the conclusion that these applications have little merit.
The Injunctions
As a consequence of the decisions I have come to, the application in a case filed by the applicant should be dismissed because the purpose of staying any effort of the agency to collect the outstanding child support is to enable the hearing to proceed without having the money collected in the meantime. Given that there will not be any substantive hearing in the matter, there is no basis for imposing any injunctions and no basis for ordering the production of any documents by the child support agency.
Costs
These proceedings are conducted under the general federal law rules and as a consequence of that costs follow the event.
I am satisfied that the applicant should pay the respondent’s costs fixed in the sum of $6,948 within twenty-eight days.
I certify that the preceding thirty-seven (37) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 11 July 2017
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