Earle and Lampman (SSAT Appeal)
[2009] FMCAfam 1080
•15 December 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| EARLE & LAMPMAN (SSAT APPEAL) | [2009] FMCAfam 1080 |
| CHILD SUPPORT – Appeal from decision of SSAT – decision of Child Support registrar to amend assessment for the relevant child support period – Interpretation of Court order – whether the order was a departure order – whether the Registrar was estopped from amending the Assessment. |
| Child Support (Assessment) Act 1989 Child Support (Registration and Collection) Act 1988 |
| Construing Undertakings and Court Orders (2008) 82 ALJ 82 Repatriation Commission v Nation (1995) 57 FCR 25 Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 Athens v Randwick City Council (2005) 64 NSWLR 58 |
| Applicant: | MR EARLE |
| Respondent: | MS LAMPMAN |
| File Number: | BRC 1720 of 2009 |
| Judgment of: | Slack FM |
| Hearing date: | 25 September 2009 |
| Date of Last Submission: | 25 September 2009 |
| Delivered at: | Brisbane |
| Delivered on: | 15 December 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Burchill & Horsey Lawyers |
The Respondent appeared on her own behalf.
ORDERS
That the Appeal from the decision of the Social Security Appeals Tribunal dated 14 April 2009 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Earle & Lampman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 1720 of 2009
| MR EARLE |
Applicant
And
| MS LAMPMAN |
Respondent
REASONS FOR JUDGMENT
In this Appeal from the decision of the Social Security Appeals Tribunal (hereafter “the SSAT”) dated 14 April 2009, the applicant relies on three grounds in the Notice of Appeal:
1. That the Child Support Agency/Registrar is stopped from reassessing the period prior to 5 September 2006 and that the Social Security Appeals Tribunal incorrectly applied the law of Anshun Estoppel to the current circumstances.
2. That the Social Security Appeals Tribunal incorrectly interpreted Section 118 of the Child Support (Assessment) Act and in particular the interpretation of the word “varying”.
3. That the Social Security Appeals Tribunal erred in interpreting that the Order could not be an agreement pursuant to Section 84(1).
In the Outline of submission the Applicant relies on only two grounds of Appeal. As far as I can determine, although differently worded, the Grounds are largely the same.
Relevant facts
The following facts (some of which are taken from the reasons of the SSAT) do not appear to be in dispute.
The relevant child support assessments relate to the children – R, born 1989 and M, born1992.
An administrative assessment of child support for the period from 1 January 2006 to 31 March 2007 was based on a child support income amount of $40,363 for Mr Earle (his 2004/2005 taxable income), and a child support income amount of $0 for Ms Lampman. The assessment was for the payment of $7,123 annually by Mr Earle.
On 17 January 2006 Mr Earle lodged an estimate of income with the Child Support Agency (CSA) stating his child support income amount for the estimate period 17 January 2006 to 31 March 2007 would be $0. The CSA accepted Mr Earle’s estimate of income and amended the administrative assessment so that for the estimate period it was based on a child support income amount of $0 for Mr Earle.
On 14 March 2008 the CSA reconciled Mr Earle’s estimate of income with his actual income for that period, which they determined to be equivalent of $92,774 per year. The CSA then amended the administrative assessment so that for the period 17 January 2006 to 4 September 2006… the assessment was based on a child support income amount of $92,774 for Mr Earle, creating child support arrears of $13,340.60 owed by Mr Earle.
On 6 October 2008 Mr Earle objected to the decision to reconcile his estimate of income and requested an extension of time within which to lodge the objection.
On 17 October 2008 Mr Earle was granted an extension of time within which to lodge his objection.
On 17 December 2008 the CSA disallowed Mr Earle’s objection.
On 13 January 2009 Mr Earle appealed to the Social Security Appeals Tribunal to review the objection decision.
Further relevant background facts
An Application was filed by the Applicant in February 2005 in the Magistrates Court at Gympie. In that Application the applicant sought an order to reduce the amount of Child Support he was paying for the children. That application did not proceed to a hearing in 2005 and it seems to have been just adjourned without further mention date. It was relisted in 2006 by the Applicant.
The Applicant then made an election (pursuant to s.60 of the Assessment Act) for the Child Support period from 17 January 2006 to 31 March 2007 to reduce his Child Support income amount for the purposes of Child Support assessment to nil.
The CSA accepted the election and amended the assessment to reflect a Child Support income of nil.
The assessment of Child Support for the relevant period was $21.67 per month.
By letter dated 14 February 2006 from the Child Support Agency to the Applicant, he was advised that he still had arrears of $22,488.62.
The Child Support Agency then issued a Statutory Notice on the applicant’s bank account and took $14,000 from the account. The applicant then reinstituted his application in the Gympie Magistrates Court in 2006.
Neither the Applicant nor the Respondent made any application pursuant to Part 6A of the Assessment Act for an administrative change in the assessment.
As far as I am aware there was no amendment to the application filed and the orders sought by the Applicant were never particularised for any specific child support period.
On 5 September 2006 orders were made by consent in the Magistrates Court at Gympie (“consent orders”):
That upon proper consideration of all the circumstances of the case, it is ordered, by consent pursuant to the provisions of Rule 10.15 of the Family Court Rules 2004:
1. That all arrears of child support in the amount of $22,623.64 be paid as follows:
(a) By release of the funds held in the Australian Government Solicitors’ Trust Account of fourteen thousand dollars ($14,000.00); and
(b) By payment by the father of a further sum of $8,623.64 within 30 days of the date of hereof.
2. That from the date of these Orders, child support be set at an amount of twelve hundred dollars ($1,200.00) per month being six hundred dollars ($600.00) for each child from the date of these Orders until each child reaches the age of eighteen (18).
3. That the father pay costs of the Child Support Registrar in the sum of $1,700.00 within 30 days of the date hereof otherwise there to be no Orders to Costs.
4. That all matters between the mother and the father in regard to the Child Support Assessment be removed from the Pending Cases List.
The memorandum of the consent orders was signed by the applicant, the respondent’s solicitor and the Australian Government Solicitor on behalf of the Child Support Registrar.
It is not in dispute that by the consent orders there was a departure order from the Assessment of Child support for the period after 6 September 2006 pursuant to Order 2 of the orders from 5 September 2006.
Ground One of the Appeal-the consent order was a departure order
The Applicant argues that the order of the Magistrates Court Gympie made on 5 September 2006 was a departure order made pursuant to s.118 of the Child Support (Assessment) Act 1989 (hereafter the “Assessment Act”). As a consequence the Child Support Registrar must give effect to the decision in relation to any administrative assessment that has been made in relation to the child (s.119 Assessment Act).Further and perhaps more pertinent, having regard to s64(3) of the Assessment Act (as it was at the time of the decision- now s64(4) of the amended Assessment Act) the departure order has effect over the amended assessment that might occur as a result of application of the provisions of s.64(1A) (now s.64(1)) of the Assessment Act.
Hence the argument is that the amended assessment issued on 8 May 2008 for the relevant child support period from January 2006 until
6 September 2006 must be subject to the consent order.
The Applicant argues that a proper interpretation of order 1 of those orders results in a conclusion that it is a departure order.
In a useful article, Construing Undertakings and Court Orders (2008) 82 ALJ 82, the author John Tarrant, refers to a number of decisions on the approach to the interpretation of Court orders.
In Repatriation Commission v Nation (1995) 57 FCR 25, the Full Court of the Federal Court (Beaumont J, with whom Black CJ and Jenkinson J agreed), said (at 34):
Under the ordinary rules of construction, evidence of surrounding circumstances is admissible to assist in the interpretation of an instrument if the language is ambiguous or susceptible to more than one meaning but not admissible to contradict the language of the instrument when it has a plain meaning.
Although there would appear to be two lines of authority on the use of extrinsic material in the interpretation of orders, it seems clear that if the orders are not clear and unambiguous, then it is permissible for another Court or Tribunal in interpreting those orders to not only rely upon extrinsic evidence but, as a matter of law, should rely upon extrinsic material if that material clarified the intention or intended effect of the orders. In this matter the Applicant submits that there is ambiguity in the orders. It is not clear from a literal reading of order 1 that it was intended to be a departure order pursuant to s.118 of the Assessment Act.
As to what additional material can be referred to in interpreting Court orders:
a)In Owston Nominees No 2 Pty Ltd v Branir Pty Ltd (2003) 129 FCR 558 at 569, Allsop J, in considering the exercise of power to deal with entered orders said:
the reasons, the pleadings and, if necessary, the evidence and how the case was conducted may be relevant extrinsic evidence.
b)In Athens v Randwick City Council (2005) 64 NSWLR 58, Santow JA said that if an order was ambiguous and the ambiguity could not be resolved by reference to the judgment then resort may be had to the proceedings and in particular the pleadings, which provide an interpretive context.
In this matter, there is no challenge to the finding by the Tribunal that order 2 of the consent orders was a departure order made pursuant to s.118 of the Assessment Act. The Applicant challenges the finding that any orders made for the period prior to 5 September 2006 did not constitute a departure order.
Leaving aside the issue as to whether there was any basis for the application given that the assessment was based on a nil income at the time the orders were made, it is nevertheless suggested that because of the negotiations that resulted in the orders, that the orders made were departure orders made in response to a departure application. It is also submitted that the clear intention of the parties at the time the orders were made was to make a departure order for the relevant child support period.
There is no transcript of the proceedings at the time the orders were made and there are no reasons of the Stipendiary Magistrate for the making of the orders.
The respondent did not give evidence before the SSAT and did not participate in that hearing. There is no transcript of the SSAT hearing before me.
Significantly though (and this has not been challenged by the Applicant) the following appears in the reasons of the Social Security Appeals Tribunal (para.23) “Extensive negotiation between the parties ensued. Eventually on advice from Ms Baldwin, Mr Earle made a commercial decision to settle the matter by accepting the administrative assessments up to the date of the order and paying the Child Support arrears outstanding rather than continuing to incur costs of a protracted legal battle.”
There is no transcript of the proceedings before the SSAT. Ms Baldwin was the Applicant’s Solicitor at the time the orders were made and gave evidence in the hearing before the SSAT. There is no challenge to that finding of fact or summary of the evidence and the Applicant has not put anything before the Court to contradict that that was the evidence of Ms Baldwin.
There was a clear admission on the part of the Applicant’s Solicitor who represented him in those proceedings that there was in fact no departure from the administrative assessment for the period up to the date of the orders.
Hence the clear evidence before the SSAT upon which the Tribunal was entitled to rely was that there was no departure order made prior to the date of the consent orders.
Ground one of the Appeal must fail.
Ground Two of the Appeal- whether an estoppel arises against the Child Support Registrar from amending the Assessment and thereby creating a liability for child support arrears
The appeal before the SSAT is an appeal against the decision of the Child Support Registrar to amend the administrative assessment for the relative period.
The Decision taken by the Child Support Registrar to amend the administrative assessment was pursuant to s.64(1A) of the Assessment Act (as it applied as at May 2008).
Section 64(1A) was repealed by Child Support Scheme-New Formula and other Measures Act 2006 but continued in operation until 1 July 2008 (s.64 of the existing Act commenced operation on 1 July 2008).
For the purposes of this application, the amending legislation did not substantially amend the relevant provisions in the legislation as it existed at the time the decision was made on 8 May 2008. Under the legislation at that time in the event that the provisions of s.64(1A) applied, then pursuant to s.64(4) of the then Assessment Act “the Registrar is to take such action as is necessary to give effect to this section to the person (whether by amending the administrative assessment that has been made in relation to the Child Support period or otherwise)” [s.64(5) is in the same terms in the current legislation].
There is no dispute that 64(1A) [or s.64(1)] had application to this matter. Hence pursuant to the then s.64(4) [now s.64(5)] the Registrar was “to take such action as necessary to give effect to the section”. In my consideration, a literal reading of s.64(4) indicates that the Registrar was statutorily obliged to amend the assessment and there would not appear to be any discretion attaching to that decision.
The Registrar was however required to give effect to the terms to the income amount order [s.64(3) of the then Assessment Act-s.64(4) of the existing Assessment Act].
In this matter, the applicant now argues that an estoppel arises against the Registrar because when the consent orders were made the Registrar was aware of the changed income circumstances of the applicant.
As I understand the argument it is that the Child Support Registrar having been informed in 2006 and during the course of the litigation in the Gympie Magistrates Court that the applicant had recommenced employment, had an obligation to either revoke the election and amend the assessment at that time or at least inform the applicant that there would be a review of his election in accordance with the Assessment Act. The applicant further argues that had the assessment been amended in 2006 then the matter could have been addressed in the course of the litigation in the Gympie Magistrates Court. The applicant’s Solicitor gave evidence that had she known of the prospect of the future amendment then she would not have settled the matter as she did. As a consequence, the applicant then argues that the Child Support Registrar ought now be stopped from amending the assessment.
I do not accept those arguments and do not accept that an estoppel arises against the Child Support Registrar in this matter for a number of reasons:
a)The applicant was the person who made the election in January 2006.
b)The applicant could have revoked the election by notice given pursuant to s.62(1A) of the Assessment Act and made a further election. Whilst he says that he notified the CSA of his employment there is no evidence that he took any step to revoke the election or indeed seek a new assessment.
c)The next question is whether the Child Support Registrar had any statutory or other obligation to either revoke the election and reassess or inform the applicant that the Registrar had decided not to amend the administrative assessment. There is no evidence that the applicant ever gave notice to the Registrar to revoke the election (see s.62(1A) of the then Assessment Act). The Registrar had the power to amend the assessment having regard to s.63A and s.63B of the then Assessment Act but the power was discretionary and dependent upon the information received by the Registrar. In my consideration there was a primary obligation upon the applicant to revoke the election if his circumstances changed and there is no evidence that he ever gave formal notice of his revoking the election. The fact that he might have informed the Registrar of his changed employment circumstances did not place any positive obligation upon the Registrar to take action regarding the election.
d)The applicant had as part of his application before the Magistrates Court at Gympie a departure application. For the reasons already given he chose not to proceed with that application. Had he done so then the Child Support Registrar would have been bound to give effect to the income amount order when reviewing the election in 2008. I do not consider that there was any obligation upon the Child Support Registrar to inform the applicant of the consequences of his election particularly as he was legally represented at that time.
e)The scheme of the Act would suggest that departure applications are the intended means by which there would be a review of the application of the Assessment Act and formulas to the assessment of Child Support. The applicant subject to considerations of leave would appear to have the capacity to make an application to depart from the amended assessment for the Child Support for the relevant period.
f)I do not consider that the Child Support Registrar had any discretion in the decision to amend the assessment as was required by s.64(4) of the Assessment Act.
As a consequence I do not consider that this ground has any merit and the appeal fails.
The applicant did not press the third ground of Appeal in the written Submissions. I am not satisfied that there was any error by the Tribunal in the way that the Tribunal dealt with this aspect of the applicant’s arguments.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Slack FM
Deputy Associate: Richard Smith
Date: 15 December 2009
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