Dove and Tolmay and Child Support Registrar
[2017] FCCA 474
•17 March 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DOVE & TOLMAY & CHILD SUPPORT REGISTRAR | [2017] FCCA 474 |
| Catchwords: FAMILY LAW – CHILD SUPPORT – Application for permanent stay – inherent jurisdiction – statutory jurisdiction – reimbursement debt owed to a (country omitted) agency – procedural fairness. |
| Legislation: Child Support (Assessment) Act 1989, s.99 Child Support (Registration & Collection) Act 1988, ss.104, 105. 111C, 112 |
| Cases cited: Brown & Child Support Registrar [2006] FamCA 1418 F & Z [2005] FMCA Fam 394 Selkirk & Caporn [2016] FCWA 206 Magill v Magill [2006] HCA 51 DJL v The Central Authority [2000] HCA 17 Carantinos v Magafas [2008] FCA 1107 Jones v Dunkel [1959] HCA 8 Welke v Child Support Registrar [2011] FMCAfam 2 Child Support Registrar v Higgins (2016) 54Fam LR 275 |
| Applicant: | MR DOVE |
| First Respondent: | MS TOLMAY |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | MLC 600 of 2016 |
| Judgment of: | Judge Williams |
| Hearing date: | 13 February 2017 |
| Date of Last Submission: | 13 February 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 17 March 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Bacon |
| Solicitors for the Applicant: | Manby & Scott |
| The First Respondent: | No appearance |
| Counsel for the Second Respondent: | Mr Tran |
| Solicitors for the Second Respondent: | Mills Oakley |
ORDERS
The Applicant’s Initiating Application is dismissed.
Within 28 Days both parties file and serve any submissions as to costs.
IT IS NOTED that publication of this judgment under the pseudonym Dove & Tolmay & Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 600 of 2016
| MR DOVE |
Applicant
And
| MS TOLMAY |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By an initiating application filed in the Melbourne Magistrates Court on 15 June 2015, and subsequently transferred to this court on 27 January 2016, the applicant seeks a permanent stay of enforcement of a registered maintenance liability. The registered maintenance liability is a debt due to the (country omitted) Inland Revenue, for non-payment of child support which has been registered for enforcement in Australia
The first respondent, Ms Tolmay, did not participate in the proceedings.
The second respondent, the Child Support Registrar, seeks that the application should be dismissed, and asserts that the court has no jurisdiction to grant a permanent stay, as sought by the applicant.
Background
The applicant and the first respondent were in a de facto relationship from 1997 until 1998, whilst living in (country omitted). They have a child, X, born (omitted) 1998. The child and the first respondent remain living in (country omitted). The applicant emigrated from (country omitted) to Australia in 2000.[1]
[1] Paragraph 2 of the applicant's affidavit sworn 27 May 2015 ("the applicant's affidavit").
The applicant is liable to pay child support to the first respondent pursuant to a (country omitted) Inland Revenue child support assessment. In practice, a (country omitted) government agency makes payment of assessed child support to the parent of the child, and the debt is therefore owing to the (country omitted) Inland Revenue. This is termed a “Reimbursement liability”.
In August 2013 the (country omitted) Inland Revenue applied for registration of the overseas maintenance liability under the (country omitted) assessment for collection in Australia. The applicant was notified by letter dated 29 August 2013 that he was required to pay child support to the Australian child support agency.[2]
[2] Paragraph 6 of the written submissions of the second respondent filed 9 February 2017 ("the second respondent's written submissions").
As at 2 February 2017, the amount owing by the applicant to the Commonwealth is $124,024.04.[3] This amount is comprised as follows:
a)$95,307.81 for arrears of registered maintenance liabilities;
b)$5,740.78 for (country omitted) late payment penalties;
c)$22,975.25 for Australian late payment penalties.
[3] Paragraph 5 of the affidavit of Mr S filed 3 February 2017.
(country omitted) assessment also required the applicant to pay child support to another mother, Ms C. However, on the 13 November 2014, the applicant obtained ex parte orders from the Melbourne Magistrates Court, which permanently stayed Ms C, her servants, agents and/or assigns, from enforcing the child support arrears.[4]
[4] Annexure D 2 to the applicant's affidavit .
The Child Support Registrar was not a party to that proceeding and did not appear at that hearing.[5]
[5] Paragraph 7 of the second respondent's written submissions.
Procedural history
On 15 June 2015, the applicant filed an initiating application in the Magistrates Court at Melbourne. The application was supported by a Financial Statement and an Affidavit of the applicant.
On 18 December 2015 orders were made by Magistrate K Hawkins as follows:
1. Pursuant to section 92 of the Family Law Act 1975 (Cth), the Child Support Registrar be granted leave to intervene in the proceedings.
2. The child support registrar be added as second respondent to the proceedings.
3. The proceedings be transferred to the Federal circuit court of Australia.
4. There be no order as to costs.
On 5 April 2016, orders were made by His Honour, Judge Curtain, as follows:
1. All extant applications be adjourned to the Duty List of this Court on 2 June 2016 at 10am for Interim Defended Hearing to address the summary dismissal application of the Second Respondent.
2. There be interim Orders, by consent, in terms of the Minute of Consent Orders handed to the Court this day and signed by the parties (“the Minute”).
3. The Child Support Registrar have leave to intervene in these proceedings and is hereby joined as a party to these proceedings (“the Second Respondent”).
4. The applicant be given leave to withdraw his application for Order 1 in the Initiating Application filed 15 June 2015.
5. The Second Respondent make, file and serve an application for summary dismissal of the remained of the Applicant’s Application within twenty-eight (28) days.
6. The parties’ costs of this day be reserved.
On 2 June 2016, orders were made by His Honour Judge Curtain, which provided (in summary) as follows:
i)Dismissing the summary dismissal application of the Second respondent;
ii)Fixing the matter for final hearing;
iii)Procedural orders in anticipation of the final hearing.
Documents relied upon
The applicant relied upon the following documents:
a)Initiating Application filed 15 June 2015 (“the initiating application”);
b)Financial Statement sworn 27 May 2015 and filed 15 June 2015;
c)Affidavit of applicant sworn 27 May 2015 and filed 15 June 2015;
d)Outline of Case filed 30 January 2017.
The first respondent did not participate in the proceedings.
The second respondent relied upon the following documents:
a)Amended response to initiating application filed 3 February 2017
b)Affidavit of Mr S sworn to February 2017 and filed 3 February 2017
c)Affidavit of Ms S sworn and filed 9 February 2017
d)Written Submissions of the second respondent filed 9 February 2017
Evidence
The applicant was granted leave to give some limited oral evidence about the following:
a)Direct deductions from his salary by the child support agency of between $200-$500 per fortnight. He was unable to be specific about the relevant periods;
b)His limited job prospects;
c)The casual nature of his current employment.
In response to questioning by me, the applicant stated he had initially paid legal costs of $5000 to his lawyer. He conceded that the withdrawal of $6000, which appeared in his bank statement on 9 December 2016, included payment of his legal costs of $5500.
The following financial documents were tendered on his behalf:
a)Last three payslips;
b)His bank account statement for the previous 12 months.
The applicant was not cross-examined.
The applicant submissions
At the commencement of the hearing, the Applicant’s Solicitor, confirmed that the applicant sought an order in terms of Order 2 in the Initiating Application, namely that the mother be permanently stayed from enforcing the child support arrears, and associated late payment and other similar penalties, which were said to be owed pursuant to the assessment.
I sought that clarification, notwithstanding order 4 of the orders of Judge Curtain made 5 April 2016, which granted leave to the applicant to withdraw his application for order 1, of the Initiating Application, the applicant’s Outline of Case, sought orders in terms of order 1.
The basis of the applicant’s submissions, was as follows:
a)The court has jurisdiction to grant a permanent stay of the applicant’s child support liability;
b)There was no necessity to join the (country omitted) Child Support Registrar, notwithstanding that the liability was a reimbursement debt;
c)The court should draw an adverse inference, against the first respondent because of her failure to participate in the proceedings;
d)I should exercise my discretion to grant a stay as sought by the applicant.
I will address each of the applicant’s submissions.
Jurisdiction of the court
The applicant submitted that there were a number of sources of the court’s jurisdiction. They are as follows:
a)The authority of Brown & Child Support Registrar; [6]
b)The inherent jurisdiction of this court, and the Family Court;
c)Statutory jurisdiction.
[6] [2006] FamCA 1418.
Brown & Child Support Registrar
The applicant’s solicitor referred me to paragraphs [22] and [50] of Brown & Child Support Registrar[7], as authority for the proposition that the court has jurisdiction to permanently stay proceedings concerning an overseas child support liability registered for enforcement in Australia.
[7] Supra.
He submitted that:
a)The ruling and comments of the trial judge, which are referred to at both the paragraphs [22] and [50] that he would grant a permanent stay in respect of a portion of a child support debt, were adopted by the Full Court;
b)Because the Full Court amended an incorrect date in the original orders of the trial judge, that should be regarded as an endorsement of the court’s jurisdiction.
The Inherent Jurisdiction of the Family Court and this Court
I was referred to the following:
a)The High Court decision in Magill v Magill [2006] HCA 51;
b)A decision of Federal Magistrate Walters (as he then was) , F & Z [2005] FMCA Fam 394 at paragraph 100;
c)A decision of Justice Walters, Selkirk & Caporn [2016] FCWA 206 at paragraph 295.
There were no meaningful submissions or analysis about the factual relevance of each of the authorities.
It was broadly submitted, that all decisions are authority for the proposition that when exercising child support jurisdiction, the court has an inherent jurisdiction to order a permanent stay.
It was also submitted that in addition to inherent jurisdiction, the accrued jurisdiction of this court would provide jurisdiction for a permanent stay. This submission was not elaborated on to any meaningful extent.
Statutory Jurisdiction
I was referred to a number of provisions of relevant legislation. These may be summarised as follows:
a)Sections 104 and 105(1) of the Child Support (Registration and Collection) Act 1988, s.99 of the Child Support (Assessment) Act 1989 and s.66G of the Family Law Act 1975.
b)Section 114 of the Family Law Act 1975;
c)Section 111(B) of the Child Support (Registration and Collection) Act 1988;
d)Rule 25B (13)(g) of the Federal Circuit Court Rules 2001;
e)Section 118 of the Federal Circuit Court of Australia Act 1999.
Whether the (country omitted) Inland Revenue should be joined as a party to the proceedings
It was submitted by the applicant, that it was not necessary to join the (country omitted) Inland Revenue to the proceedings. The basis of that submission was as follows:
a)Part three of the Family Law Regulations[8]state that the proceedings should occur as though it were a normal domestic Australian case.[9]
b)Section 116(3) of the Assessment Act and an unspecified section of the Registration and Collection Act provide that the child support agency is not a party, although it may be joined as a party;[10]
c)The Full Court approached the situation in Brown & Child Support Registrar in that manner;[11]
d)Judge Curtain and I apparently turned our attention to that issue, when procedural orders were made in the course of the proceedings, notwithstanding the concession that neither Judge Curtain nor I, were made aware at the time of the making procedural orders that the child support liability was a reimbursement debt.
[8] Family Law Regulations 1984.
[9] Transcript at page 21, lines 31 – 33.
[10] Transcript at page 21, lines 33 – 35.
[11] Transcript at page 21 lines35 -37.
There were no submissions that it would have been prudent, at the very least, to have served the (country omitted) Inland Revenue with a copy of the proceedings, to at least accord procedural fairness.
Failure of the first respondent to participate in the proceedings
It was submitted that the unexplained failure of the first respondent to participate in the proceedings and failure to adduce evidence, enabled me to infer that the evidence would have been adverse to the first respondent.
In support of that proposition. I was referred to the rule in Jones v Dunkel [1959] HCA 8.
There was no explanation as to the relevance of this submission, given that the debt was a “reimbursement debt” and owing to the (country omitted) Revenue and not the first respondent.
That is a clear misunderstanding and misstatement of the rule in Jones v Dunkel (supra). The rule does not permit an inference that the evidence would have been adverse to the party. It only permits an inference that the evidence would not have assisted that party.[12] Jones v Dunkel does not enable the trier of fact to infer that the evidence of the absent witness would have been positively adverse to that party[13].
[12] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361 at [64].
[13] Australian Securities & Investments Commission v Hellicar (2012) 247 CLR 345 at [232].
Second Respondent’s submissions
The respondent submissions were most helpfully and concisely set out in the Written Submissions of the Second Respondent.[14] (“The Second Respondent’s Submissions”)
[14] Written Submissions of the second respondent filed 9 February 2017.
The Second Respondent’s submissions[15] set out the three legal grounds which warrant dismissing the Initiating Application. They are as follows:
a)The proper respondent to the applicant’s application is not the first respondent, but the (country omitted) Inland Revenue;
b)The court has no power to discharge a registered maintenance liability that arises from (country omitted), except to discharge such a liability on a provisional basis. This ground is relevant to order one, initially sought by the applicant in the initiating application, however it is not relevant to order two;
c)The court has no power to order a permanent stay and accordingly, order 2, (the application for a permanent stay of the liability) should not be made.
[15] At paragraph 2.
Counsel for the second respondent made the following additional oral submissions:
a)Brown & Child Support Registrar does not support the proposition that the court has the power to make a permanent stay order. The primary judge and the parties before him assumed he had the power to do so. Acting on that assumption, the primary Judge determined that he was not going to exercise that power in the circumstances of that case. The Full Court said at Paragraph [50]:
“It is thus unnecessary that we concern ourselves with the issue of whether such relief is indeed available in such proceedings”
makes it abundantly clear that the Full Court did not determine the issue of jurisdiction to make a permanent stay order.
b)Inherent Jurisdiction:
i)This court does not have inherent jurisdiction. In support of his proposition, he referred me to DJL v The Central Authority [2000] HCA 17 at paragraph [25]:
“The Family Court is thus not a common law court as were the three common law courts at Westminster. Accordingly, it is “unable to draw upon the well of undefined powers” which were available to those courts as part of their “inherent jurisdiction”. [29] The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution. A court exercising jurisdiction or powers conferred by statute “has powers expressly or by implication conferred by the legislation which governs it” and “[t]his is a matter of statutory construction”; it also has “in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred”. [30] It would be inaccurate to use the term “inherent jurisdiction” here [31] and the term should be avoided as an identification of the incidental and necessary power of a statutory court.”
ii)The Family Court does not have inherent jurisdiction. It only has jurisdiction conferred upon it by statute and, that is also the position of this court.
c)There is no statutory power, which confers jurisdiction on this court to make a permanent stay order. Section 111(C) of the Child Support (Registration and Collection) Act 1988 enables the court to make a stay order only until the substantive proceeding, (under the Registration and Collection Act) which enlivens the power to grant an interim stay, is determined.
d)Section 15 Federal Circuit Court of Australia Act 1999 (Cth):
i)Section 15 empowers the court to “make orders of such kinds including interlocutory orders, as the Federal circuit court of Australia thinks appropriate” but only “in relation to matters in which it has jurisdiction”.
ii)Section 15 does not confer jurisdiction, rather it confers power to make orders on the assumption that the court has jurisdiction. Counsel referred to Carantinos v Magafas [2008] FCA 1107 at [3] as authority for that submission.
e)It is artificial to consider who should be a relevant party to the proceedings, given the submissions that the court has no jurisdiction to make the order sought. In any event, the debt is a reimbursement debt and this court should not make an order which affects a (country omitted) agency without, at the very least, having provided a copy of the proceedings to that agency.
f)The decision in Magill v Magill [2006] HCA 51, which was referred to by the Applicant’s Solicitor, has nothing to do with the powers of a court, rather whether the tort of deceit had been excluded as between a mother and father by the child support legislation.
g)The notion that accrued jurisdiction would permit an order for a permanent stay is erroneous.
Discussion
I will address each submission in turn.
Jurisdiction of the Court
Brown & Child Support Registrar
The relevant paragraphs of Brown & Child Support Registrar are as follows:
i)at paragraph [22}:
“Accordingly, his Honour, having cited a passage from the decision of the High Court majority in Walton v Gardiner (1993) 177 CLR 379 (at 392 – 3), ruled at paragraph 10 of his reasons that he would grant a permanent stay “in respect to that portion of the debt i.e. $3940.45.”
ii)At paragraph [50]:
“It is clear from the written and oral submissions that each party made to his Honour and from his Honour’s reasons for judgement that all concerned proceeded on the basis that the High Court decision in Walton and Gardiner (supra) establishes in his Honour’s words (paragraph 3 of this judgement), that the court “has power, and its inherent jurisdiction, to stay proceedings which are in an unjust or unfair”, and that such relief is available in proceedings concerning an overseas child support liability registered for enforcement in Australia. It is vast unnecessary that we concern ourselves with the issue of whether such relief is indeed available in such proceedings.”
An examination of the actual comments of the Full Court, and in particular the last sentence of paragraph [50], makes it clear that the Full Court did not consider whether such relief (the permanent stay of an overseas child support liability registered for enforcement in Australia) is available in such proceedings.
I agree with the submissions of Counsel for the Second Respondent, that the primary Judge and the parties before him at first instance, assumed that he had the requisite power. Furthermore, acting on that assumption, the primary Judge determined that he was not going to exercise that power in the circumstances of the case.
I do not accept the submission of the applicant’s solicitor that by correcting dates, in the orders, the Full Court endorsed the proposition as stated by the applicant’s solicitor.
The submission that Brown & Child Support Registrar [16] is Full Court authority for this court’s jurisdiction to stay proceedings concerning an overseas child support liability registered for enforcement in Australia is wrong.
[16] Supra.
I agree with the submissions of Counsel for the Second Respondent.
Inherent jurisdiction
I have had the opportunity to consider the three authorities referred to by the applicant’s solicitor.
Magill[17] does not assist in any manner whatsoever with the current application before me. The proceedings in that matter were originally commenced in the County Court and not this court or the Family Court. I do not accept the broad statement from the solicitor for the applicant that Magill is authority for the proposition, in this court “that in child support context, the common law applies as well”. [18]
[17] Supra.
[18] Transcript at page 34 lines 15 and 16.
The facts of F&Z[19] required a determination of two issues:
i)An application to extend time limits for a declaration pursuant to s.107 of the Child support (Assessment) Act 1989;
ii)An application for parentage testing pursuant to s.69W of the Family Law Act1975.
[19] Supra.
His Honour’s comments at Paragraph [100] were in the context of an exercise of discretion pursuant to s.69W of the Family Law Act 1975. Unlike the present case, there was no issue about the court’s jurisdiction or power to exercise its discretion.
The facts of Selkirk & Caporn & Anor[20] required determination of three matters:
i)Whether the Family Court of Western Australia has inherent or implied powers to stay its own orders;
ii)Whether res judicata or “Issue Estoppel” operated to preclude the husband from arguing that the child maintenance provisions of the s.86 deed had no affect and whenever enforceable;
iii)Whether “Anshun Estoppel” applied.
[20] Supra.
Obviously, issues of Estoppel have no relevance to the current dispute.
I was referred to the comments of His Honour at paragraph [295] which states:
“In RS2 at [92] the registrar submits that this court . “Does not have an inherent power to stay its own orders”. In support of that proposition, the registrar refers to passages from DJ L v Central Authority [HCA] 17; (2000) 201 CLR 226.”
That paragraph does not assist in my determination. However, the Applicant’s Solicitor submitted:
“His Honour said that this phrase “inherent jurisdiction” really should be avoided and merely said that all courts who deal in this child support arena have all the powers which, although incidental to those actually given, are necessary for them to carry out the work that Parliament has given”[21]
[21] At transcript page 36 , lines 17 – 21.
That further submission again does not assist in my determination and I am unsure as to the relevance of that submission.
I am persuaded by and agree with the oral submissions of counsel for the second respondent, which are referred to at paragraph 41(b) hereof.
Statutory jurisdiction
As stated at paragraph 32 hereof, the applicant’s solicitor referred me to various legislation. The submissions were generalised and confusing.
Firstly, it was submitted the court has generalised child support jurisdiction pursuant to s.104 and s.105(1) of the Child Support (Registration & Collection) Act 1988 and s.99 of the Child Support (Assessment) Act 1989. Pursuant to s.105 (1) of the Registration and Collection Act, the Family Law Act 1975 applies to proceedings under that act. Therefore s.66G of the Family Law Act 1975 applies to both pre-and post-1989 child support cases.
When specifically asked for authority for that proposition, the applicant solicitor was unable to provide any such authority. I do not accept that proposition.
Secondly, it was submitted that s.114 of the Family Law Act 1975 empowers the court to grant an injunction, and “to some degree is what is being asked here”[22].
[22] Transcript at page 31 line 26 – 27.
There were no further submissions made about section 114 of the Family Law Act 1975.
Thirdly, it was submitted that s.111B(1) of the Child Support (Registration and Collection) Act 1988, gives the court powers, once it has jurisdiction in a case.
The submission made concerning s.111B(1) of the Child Support (Registration and Collection) Act 1988, does not assist my determination of whether the court has statutory jurisdiction as the power is contingent upon the court having jurisdiction .
Fourthly, it was submitted that Rule 25B.13(g) of the Federal Circuit Court Rules 2001 provides the court with statutory jurisdiction, because the rules of court are specifically referred to in s.105(1) of the Registration and Collection Act 1988.
It seems to me that the submission in relation to Rule 25B.13(g) is reliant upon my acceptance of the submission referred to in paragraph 60 hereof. I do not accept the submission referred to at paragraph 60 hereof, and accordingly I do not accept the submission in relation to r.25B.13 (g).
In his Written Submissions, Counsel for the second respondent provided a comprehensive and helpful submission in relation to statutory power, or lack thereof.
It was submitted that as this court is a creature of statute, it is necessary to identify a statute source of power which would enable the court to make orders sought by the applicant.
Secondly, possible statutory sources of power were referred to as follows:
a)Section 111C of the Registration and Collection Act;
b)Section 111B of the Registration and Collection Act;
c)Section 15 of the Federal Circuit Court of Australia Act1999 (Cth).
Section 111C of the Child Support (Registration and Collection) Act 1988
Section 111C provides as follows:
Stay orders - (1) This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the AAT for an AAT first review; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975:
(a) in the case of a proceeding instituted in a court--apply to that court for an order under this section; or
(b) otherwise--apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4) The court may, by order, vary or revoke an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified--until a decision of the court, the Registrar or the AAT determining the proceeding becomes final.
The applicant seeks an order for a permanent stay of enforcement of the child support arrears, (“and associated late payment and other similar penalties”.[23]
[23] Order 2 of the final orders sought in the initiating application filed 15 June 2015.
It is submitted by counsel for the second respondent, and I agree with that submission, that s.111C provides no statutory basis for such an order. Section 111C empowers the court to make a stay order that will continue only until the substantive proceedings, commenced under the act, are determined. These are not substantive proceedings in this matter
Section 111C was considered by His Honour Judge Reithmuller [24], who stated as follows:
“To the extent that the appellant seeks orders for ‘a permanent stay with respect to payment of late payment penalties’, there are no reasons to stay the enforcement under s.111C of the Child Support (Registration and Collection) Act, given that there are no further proceedings pending. Nothing has been placed before the Court to demonstrate the basis of any jurisdiction to stay or injunct a government department from carrying out its statutory mandate, on the basis of common law or some form of general jurisdiction of the Court. The Court’s inherent jurisdiction in this regard relates to proceedings brought before the Court, not to the conduct of the Executive generally. If, at the heart of this argument, is some form of constitutional challenge (which has not been articulated, nor is it apparent on the face of the material) then proceedings ought to be brought in the appropriate form.”
[24] Welke v Child Support Registrar. [2011] FMCAfam 2 at para 36.
Section 111C as also considered by the Full Court[25]which said as follows:
50. “It can be seen that the court is given a wide discretion to make orders “until a decision of the court ... determining the proceedings becomes final” or “until such other period as is specified in the orders”. The discretion is bounded by the requirement to take into account “the interests of the persons who may be affected by the outcome of the proceeding”.
51. By their terms his Honour’s 2013 orders were for a “permanent stay”. It cannot be said that they were orders made “pending the hearing and final determination of the proceeding”; they were themselves intended to be the final determination of the proceedings. Once made as they were intended, there were no other proceedings on foot. In reality, and despite their express terms, the orders were, in any event, not in the nature of a “stay”; they were intended as a mandatory injunction. (The orders also, in any event, misapprehend the nature of the liability. It was neither owed to, nor could be pursued by, the mother and the relevant (country omitted) agency and the CSR cannot, as a consequence, be seen as her “agent” or similar).[39]
52. Section 111C of the CSRC Act could not be the source of power for either of the orders made in 2013.
[25] Child Support Registrar v Higgins (2016) 54Fam LR 275 at 285.
The factual similarities between this proceeding and Child Support Registrar v Higgins[26] are extraordinary. The mothers in both proceedings lived in (country omitted) and the fathers lived in Australia. The child support obligations of both fathers derived from a (country omitted) assessment. Both amounts owing were substantial reimbursement debts.
[26] Supra.
The orders sought in Higgins in the first instance application are almost identical to those sought by the applicant in this proceeding. They are as follows:
[13] The originating process filed by the father sought five substantive orders . However, he proceeded with an application for only two of those orders before his honour. They were in these terms:
3. By way of Regulation 36 Family Law Regulations 1984 [”the Regulations “] (or other legislative measure), the child support arrears said to be owed by [the father] to [the mother] regarding [the child]… be hereby discharged and set at $ nil.
4. In the alternative to orders three above, [the mother] (and her servants, agents and/or assigns – whether stated she or otherwise) be permanently stayed from enforcing those child support arrears (and associated penalties) said to be owing by [the father].[27]
[27] Paragraph 13.
Furthermore, the Applicant’s Solicitor in this proceeding was the advocate for the applicant father in Higgins, albeit Mr Higgins appeared in person at the appeal. I was not referred to decision of the Full Court in Higgins.[28]
[28] Supra.
There is no substantive proceeding in the current application before me. The order sought by the applicant is for a permanent stay, and cannot possibly be construed as an order made “pending the hearing and final determination of the proceeding”. Furthermore, the debt is not owed to the first respondent, the mother, but to (country omitted) inland Revenue and as such there is a misunderstanding of the nature of the liability.
Section 111C(3) requires the court to take into account the interests of the persons who may be affected by the outcome of the preceding.
If an order were made, as sought by the applicant, the (country omitted) Inland Revenue would be affected by the outcome of the proceeding, as the liability is a reimbursement debt. I refer to paragraph 34 hereof in relation to my comments, about providing procedural fairness to the (country omitted) Inland Revenue.
In my view, s.111C does not provide any source of power for the order sought by the applicant.
Section 111B of the Registration and Collection Act
Section 111B of the Registration and Collection Act provides as follows:
General powers of court (1) A court's powers under this Act include the power to do all or any of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic amount;
(c) order that a specified transfer or settlement of property be made;
(d) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;
(e) order that any necessary deed or instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f) order that payment be made to a specified person or public authority or into court;
(g) make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;
(h) make an order expressed to be retrospective to such day as the court considers appropriate;
(i) make an order:
(i) discharging an order; or
(ii) suspending the operation of an order wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(iii) reviving wholly or in part the operation of an order that has been suspended; or
(iv) varying an order in any way;
(j) make an order imposing terms and conditions;
(k) make an order by consent;
(l) make any other order (whether or not of the same kind as those referred to in paragraphs (a) to (k)) that the court considers appropriate;
(m) make an order at any time.
(2) The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Act, in relation to a child does not prevent a court from making a subsequent order (whether under this Act or otherwise) in relation to the child.
(3) The applicable Rules of Court may make provision with respect to the making of orders under this Act (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of any child support payable under them.
Counsel for the second respondent submitted[29] that whilst the section is broad, it has no application to the present proceedings. The reason for that is because s.111B is only available in proceedings under the Registration and Collection Act. That is apparent from the simplified outline of s.111A of the Act.
[29] At paragraph 36 of the written submissions.
I agree with that submission.
Section 15 of the Federal Circuit Court Act 1999 (Cth)
Section 15 of the Federal Circuit Court Act 1999 (Cth) provides as follows:
Making of orders and issue of writs
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a) make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b) issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
Counsel for the second respondent submitted[30] that the broad powers conferred by s.15, are premised upon the court already having jurisdiction to deal with a matter.
[30] At paragraph 38 of the written submissions.
In this proceeding, the court does not have jurisdiction under some other provision to determine the permanent stay application, and accordingly s.15 cannot be relied upon to confer jurisdiction. It is a conferral of power to make orders, when the court has jurisdiction to do so.
I agree with that submission.
In conclusion, I am not persuaded by the submissions of the Applicant’s Solicitor as to jurisdiction to make the order sought.
Whether the (country omitted) Inland Revenue should be joined as a party to the proceedings
The solicitor for the applicant submitted that the proceedings should be determined as a normal domestic Australian case. He was unable to provide any authority for that proposition. What he omitted to say was that any order made in Australia, applying Australian law, is a provisional order, and it has no force or effect unless and until it is confirmed by a court of competent jurisdiction in (country omitted). [31]
[31] Paragraph 40, child-support registrar and Higgins.
The Full Court in Child Support Registrar v Higgins[32] said at paragraph 2:
“A fundamental premise of the laws giving recognition to the agreement is that while the child support assessments, liabilities and orders of one country can be subject to applications made in the other country, any orders made in that country can only be given binding effect by the courts of the country from which the assessments, liabilities or orders originated. Any Australian order that seeks to alter the (country omitted) assessment, liability or order is provisional only and of no force or effect until confirmed by a (country omitted) court.”
[32] Supra.
The applicant solicitor was unable to provide in the explanation why the (country omitted) Inland Revenue had not the very least been provided with a copy of the proceedings. The submissions of the solicitor for the applicant, that Judge Curtain and I turned our mind to the addition of the (country omitted) Revenue is audacious in the extreme.
At the time of His Honour’s orders made on 5 April 2016, and 2 June 2016, there was no evidence about the proper inclusion of (country omitted) Inland Revenue as a party to proceedings. The relevant affidavit is that of Ms S filed on 9 February 2017.
In any event, as I intend to dismiss the application, consideration of the relevant parties to the proceeding is academic.
Similarly, as I have determined, the court has no jurisdiction to entertain the application, I am not required to address matters relevant to the exercise of discretion.
Conclusion
For the reasons set out in this judgment, I intend to make orders dismissing the applicant’s application.
At the conclusion of his oral submissions and in his written submissions[33] counsel for the second respondent, sought that I defer the matter of cost until after delivery of this judgment. It was submitted that a convenient course would be to require written submissions as to costs, and the cost be determined on the papers. I agree with that course of action and will make the appropriate order.
[33] Paragraph 40 of the written submissions.
I certify that the preceding ninety eight (98) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 17 March 2017
0
9
6