Farley and Haley and Child Support Registrar (SSAT Appeal)
[2009] FMCAfam 1151
•3 November 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARLEY & HALEY & CHILD SUPPORT REGISTRAR (SSAT APPEAL) | [2009] FMCAfam 1151 |
| CHILD SUPPORT – Appeal from SSAT – consideration of the effect of court orders on Agency obligations. |
| Child Support (Assessment) Act 1989, ss.36, 37, 67, 107, 143 Child Support (Registration and Collection) Act 1988, ss.37, 71AA, 110B, 110F |
| Mercer v CSA [2004] FCA 465 DRP & AJL (2004) FLC 98-022 |
| Applicant: | MS FARLEY |
| First Respondent: | MR HALEY |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | SYC 2028 of 2009 |
| Judgment of: | Sexton FM |
| Hearing date: | 7 September 2009 |
| Date of Last Submission: | 7 September 2009 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2009 |
REPRESENTATION
| Solicitors for the Applicant: | Legal Aid Commission NSW |
| Counsel for the First Respondent: | Mr S. Bishop |
| Authorised representative for the Second Respondent: | Mr K. McWhinney |
THE COURT ORDERS THAT:
The decision of the Social Security Appeals Tribunal dated 26 February 2009 be set aside
The appellant’s objection against the Child Support Registrar crediting payments made for the child [Y] be allowed.
The Child Support Registrar re-calculate the First Respondent’s child support liability according to law.
Liberty to apply for a period of 3 months in relation to the implementation of these orders.
IT IS NOTED that publication of this judgment under the pseudonym Farley & Haley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 2028 of 2009
| MS FARLEY |
Applicant
And
| MR HALEY |
First Respondent
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an appeal by the payee mother (Ms Farley) from a decision of the Social Security Appeals Tribunal of 26 February 2009. The First Respondent is the payer father (Mr Haley) and the Second Respondent is the Child Support Registrar.
The Tribunal affirmed a decision of the Objections Officer of the Child Support Agency of 13 June 2008 to disallow Ms Farley’s objection to the manner in which the Child Support Agency implemented consent orders of the Federal Magistrates Court made on 24 October 2007.
On 24 October 2007, by consent, this Court, in its Launceston Registry, made the following declaration, notation and orders:
1. That the court declares that MR HALEY is not the father of the child [Y] born [in] 1997.
2. That the Court issue a Declaration of Parentage pursuant to section 107(1) of the Child Support (Assessment) Act 1989 that the Respondent MS FARLEY is not a person entitled to Administrative Assessment of child support for the child, [Y], born [in] 1997, payable by the Applicant, MR HALEY.”
3. That there be no order pursuant to section 143 of the Child Support (Assessment) Act 1989 in relation [sic] child support paid by the applicant, MR HALEY for the child, [Y].
4. [not relevant]
AND THE COURT IS ASKED TO NOTE that the parties intend these orders to extinguish all matters under the Child Support (Assessment) Act 1989 in relation to the child [Y] born [in] 1997 and the applicant cannot pursue reimbursement for any child support paid to the respondent for the child.
The effect of a section 107(1) declaration is that the application for administrative assessment of child support is taken never to have been accepted by the Registrar[1].
[1] Section 107(5)
Section 143 of the Child Support (Assessment) Act 1989 provides for the recovery of child support where an amount is paid and no liability exists. Section 143(1) gives the payer the right to seek recovery in a court from the payee, of overpayments the payer has made, when a declaration as to liability has been made pursuant to section 107(1).
To give effect to these orders, the Child Support Registrar varied the Child Support Register under section 37 of the Child Support (Registration and Collection) Act1988.
As the Tribunal stated in its reasons, there is no dispute between the parties as to the material facts. The question is one of legal interpretation.
Ms Farley argues that when varying the Register, the Registrar made an error in attempting to give effect to the orders. Ms Farley seeks an outcome which does not give Mr Haley the benefit of a section 143 order under the Child Support (Assessment) Act 1989 when no such order has been made.
I have concluded that Ms Farley’s objection is well founded. I find the father abandoned any claim to any money he had paid in child support for [Y], when, on 24 October 2007, the Court ordered there be no order pursuant to section 143. I find the First Respondent has since attempted to avoid the effect of that order by relying on a technical interpretation by the Child Support Registrar as how the orders should be implemented. I find the Child Support Registrar was in error in crediting the amount paid by Mr Haley for both children to Mr Haley’s child support liability for the child for whom Mr Haley always had a child support liability.
Background facts
On 22 August 2000, the Child Support Agency accepted Ms Farley’s application for a child support assessment in respect of [X], born in 1993 and [Y], born in 1997, two of the appellant’s five children.
Mr Haley was named as the parent liable for child support in respect of both children.
In 2007, DNA testing revealed that [Y] was not Mr Haley’s biological child. The orders of October 2007 followed.
On 8 November 2007, to give effect to the Court’s section 107(1) declaration, the Child Support Registrar varied the Child Support Register. As Mr Haley was in arrears of child support for [X], the child for whom he remained liable for child support, the effect of the variation was a substantial reduction in Mr Haley’s child support arrears.
On 14 April 2008, the appellant lodged an objection as to the quantum of the reduction in Mr Haley’s child support arrears. The appellant contended the Registrar was wrong to credit payments made by
Mr Haley for both [X] and [Y] against the child support arrears owed for [X].
On 13 June 2008, the Objections Officer decided there had been an error in the calculation and that a further amount of $3,486.62 should be excluded from the assessment. However, the Objections Officer decided the Registrar had applied the correct principles in giving effect to section 107(5) of the Child Support (Assessment) Act 1989, and therefore disallowed the objection.
The Objection Officer states:[2]
The effect of the court order was that all payments that have been collected by the CSA are applicable to the registrable maintenance liability for [X] as no s143 order was made to repay any money collected in relation to [Y].
[2] Appeal books folio P59
On 3 September 2008, the mother lodged an appeal with the Social Security Appeals Tribunal to seek a review of the Objection Officer’s decision.
On 10 February 2009, the Social Security Appeals Tribunal heard the appellant’s application. On 26 February 2009, the Tribunal affirmed the objection officer’s decision.
On 7 April 2009, the appellant filed a Notice of Appeal in this Court in relation to the Tribunal’s decision.
Ms Bassant, solicitor for the appellant, Mr Bishop, counsel for the First Respondent, (Mr Hayley, the payer father) and Mr McWhinney, authorised representative for the Second Respondent, all made written and oral submissions.
The Social Security Appeals Tribunal decision
The Tribunal identified in its Reasons, the decision under review as:
A decision made by an objections officer of the Child Support Agency on 13 June 2008, to disallow an objection to a decision made on 8 November 2007 as to the quantum of the reduction in Mr Haley’s child support arrears, as a result of excluding the child [Y] from the applicant’s child support assessment, with effect from the date of application on 16 August 2000.
Ms Bassant argued that the Objections Officer used the wrong method to re-calculate Mr Haley’s child support liability and therefore arrived at the wrong result. She highlighted the Objection Officer’s reference to the difference between the original child support percentage of 27% (for 2 children) of the payer’s child support income and the child support percentage of 18% (for one child) of the payer’s child support income for each period from 16 August 2000.
In summary Ms Bassant submitted as follows:
·The amount that should be assessed for [Y] is a notional child support percentage figure of 13.5% of the payer’s child support income. That is half 27%.
·The correct approach is to apply all payments collected for [X] (that is, apply the notional child support percentage figure of 13.5% of the originally assessed 27%) against the ‘new’ assessment for [X] which assessment is calculated applying the appropriate child support percentage of 18% for one child. This approach required the decision- maker to calculate how much money has been collected for each child to identify how much money paid can be applied to the ongoing assessment for [X] and how much should be treated as an amount paid where no liability existed.
·The objections officer had no power to deduct the amount determined to relate to [Y], from the assessed amount payable for [X]. The decision-maker may only offset child support debts between a payer and a payee pursuant to section 71AA of the Registration and Collection Act when the conditions of section 71AA are met. Section 71AA does not apply here because this is not a case when 2 persons each have a child support debt arising from a registrable maintenance liability under section 17 or section 17A. The amount which relates to [Y] is neither a child support debt nor a registrable maintenance liability, because under section 107(5) of the Assessment Act, the assessment in relation to [Y], is taken never to have been accepted. That amount is not capable of being offset against the liability for [X].[3]
·The Objections Officer was in error when she said[4]:
all payments collected by the Agency are applicable to the registrable maintenance liability for [X],
because this would give Mr Haley the benefit of a section 143 order that was not made, and would disregard section 107(5) which provides that the assessment in relation to [Y] is taken never to have been accepted.
·The method used to give effect to the section 107 declaration has disadvantaged [X], for whom there is an ongoing child support entitlement, because Mr Haley is currently paying no child support for [X].
·The legislature cannot have intended that payer parents obtain the benefit of a section 143 order merely by the administrative implementation of a section 107(1) order alone. Section 143(3B) provides for the court to have regard to specific matters when deciding whether or not to grant a section 143 order. In the circumstances of this case, the Registrar has had no regard to these matters.
[3] Mercer v CSA [2004] FCA 465 at 24
[4] Appeal books folio P59
The SSAT summarised the applicant’s case in paragraphs 12-14 of its Reasons. The Tribunal says Ms Bassant submitted that the payments attributable to each child are different in nature. The amount attributable to [Y] is not a debt to the Commonwealth. The Tribunal said Ms Bassant was arguing that the Registrar should have recalculated the child support liability in respect of [X] only, on the basis of 18% of Mr Haley’s income, and applied to that, the amount
Mr Haley has paid and which is notionally attributable to [X] only.
Having heard the appellant’s case, the Tribunal identified[5] the issues for its consideration as:
·Whether payments made in respect of a child support administrative assessment can be identifiably attributed to each of two or more children covered by a single assessment; and
·Whether in this case, the quantum of the reduction in the amount previously assessed as the child support liability has been correctly calculated.
[5] Appeal books, page 5.
The Tribunal noted confusion in the documentation as to the quantum of the amount to be excluded from the assessment in this case. It noted different calculations made at different times since the section 107(1) declaration was made.
The Tribunal noted that Mr Haley lodged taxation returns in 2008 for the tax years 2003 to 2008 inclusive, and that Mr Haley’s actual taxable incomes were less than the incomes on which assessments had been previously based. This had the effect of further reducing his child support liability. Given the different advice Ms Farley and Mr Haley received from the Agency from time to time as to the amount of arrears owed by Mr Haley, the Tribunal concludes[6]:
It is not to be wondered at then, that Ms Farley has little faith in the correctness of the figures by which the liability has been reduced.
[6] Appeal books folio S9 at paragraph 27
The Tribunal then requested calculations from the Agency to clarify the figures relied on by the Objections Officer to calculate Mr Haley’s arrears. Having examined those calculations, the Tribunal was satisfied the arrears figure was correct[7].
[7] Appeal books folio S9 at paragraph 31
The Tribunal then identified the provisions of the Child Support (Assessment) Act 1989, (as they were prior to the changes which came into effect on 1 July 2008) it intended to apply in determining the case. In particular, the Tribunal referred to section 67(1) and section 107(1), (4) and (5) of the Child Support (Assessment) Act 1989.
Section 67(1) provides:
If, in relation to a day in a child support period, child support is payable by a liable parent to a carer entitled to child support for 2 or more children, any administrative assessment of the child support payable by the liable parent to the carer entitled to child support in relation to the day is to relate to all of the children and not to any of the children separately.
Section 107(1) provides:
Where the Registrar accepts a carer application for administrative assessment of child support for a child, the person from whom the application sought payment of child support may, subject to subsection (1A), apply to a court having jurisdiction under this Act for a declaration that the applicant was not entitled to administrative assessment of child support for the child payable by the person because the person is not a parent of the child concerned.
Section 107(4) provides:
The court may grant the declaration if the court is satisfied that the applicant was not entitled to administrative assessment of child support for the child because the person from whom the application sought payment is not a parent of the child.
Section 107(5) provides:
If the court grants the declaration, [as in this case in relation to [Y]] the application for administrative assessment of child support is to be taken never to have been accepted by the Registrar.
The Tribunal says[8] that the Registrar recalculated Ms Farley’s child support entitlement based on 18% of Mr Haley’s child support income from time to time during the relevant period. The total amount of her entitlement was then deducted from the total amount of her entitlement which had previously been calculated in respect of two children.
[8] Appeal books folio S11 at paragraph 41
At Paragraph 42 of its Reasons[9], the Tribunal states:
At the time of the relevant recalculation, Mr Haley’s child support account was in arrears of $ 21,879.83. The difference between
Ms Farley’s entitlement for one child and her previous entitlement for two children was approximately $11,396.09. This amount was therefore deducted from the total arrears amount showing on
Mr Haley’s account. As noted earlier in these reasons, two further amounts were deducted from the total liability, one to correct an error and the second to reflect more up to date information about the payer’s income.
[9] Appeal books folio S11 at paragraph 42
The Tribunal considered and rejected Ms Bassant’s argument that a separate identifiable amount paid for each child should be “quarantined”. The Tribunal referred to section 36 of the Assessment Act which concerns the formula to be applied when calculating a paying parent’s child support liability. The Tribunal highlighted the words in section 36(1) “annual rate of child support payable… by a liable parent for the child, or all of the children, for whom child support is payable….” The Tribunal decided that this section contemplates only one annual rate of child support, regardless of the number of children included in the assessment. The Tribunal also referred to section 37 of the Assessment Act which provides for various income percentages to be applied in an assessment according to the number of children: 18% for one child, 27% for two children, 32% for three children etc. The Tribunal noted the section does not specify a particular percentage is to apply to any particular child, the subject of the assessment, and that section 67(1) states that an assessment “is to relate to all of the children and not to any of the children separately.” The Tribunal determined[10]:
The Tribunal’s view is that sections 36, 37 and 67(1) are to be read in conjunction and that the combined effect of these sections is that child support liability is calculated as a single annual rate, which applies to an assessment, regardless of the number of children who are the subject of that assessment…
The Tribunal does not consider that the law allows for specifically identifiable amounts of child support paid in respect of an individual child, in an assessment involving two or more children.
[10] Appeal books folio S12-S13 at paragraphs 48-50
Social Security Appeals Tribunal decision
The Tribunal affirmed the decision of the Objections Officer.
The Appeal
Section 110B of the Child Support (Registration and Collection Act) provides that a party to a proceeding before the SSAT may appeal to a court having jurisdiction, on a question of law, from any decision of the Tribunal in that proceeding. This is not a review on the merits.
The appellant relies on the Notice of Appeal filed on 7 April 2009 which sets out 3 grounds of appeal.
a)Whether the SSAT construed properly section 36 of the Child Support (Assessment) Act 1989 (as that Act was at 13 June 2008, the date of the decision under review).
b)Whether the Tribunal construed properly section 67(1) of the Child Support (Assessment) Act 1989 (as that Act was at 13 June 2008, the date of the decision under review).
c)Whether the Tribunal has overlooked submissions worthy of serious consideration.
In written submissions[11], Ms Bassant for the appellant argues:
The applicant seeks an outcome whereby the second respondent’s implementation of a section 107 order does not give the first respondent the benefit of a section 143 recovery order in circumstances where a section 143 recovery order has not been made.
Was the Tribunal in error in its interpretation of section 36 and section 67(1) of the Child Support (Assessment) Act 1989 (as that Act was at 13 June 2008, the date of the decision under review)?
[11] Paragraph 1 of the Applicant’s written submissions
Ms Bassant submits that the Tribunal erroneously ignores the words “for whom child support payable” in sections 36 and 67(1) of the Assessment Act. [Y] is not a child for whom child support is payable. Ms Bassant argues[12] that these provisions do not provide a bar to notionally identifying the amount of child support assessed or paid that relates to the child for whom child support is payable, and notionally identifying the amount of child support paid that relates to the child the subject of the section 107(1) declaration. Ms Bassant notes that the purpose of section 67(1) was to prevent separate assessments, each calculated at 18%, for each child of a relationship.
[12] Paragraph 7 of the Applicant’s written submissions
Counsel for the First Respondent, Mr Bishop, submits[13] that “neither section 36 nor section 67(1) of the Act authorises the identification of discrete amounts of child support.” Counsel submits that the scheme of the Assessment Act including sections 36, 37 and 67(1) “clearly confirms that what is created by the Act is an indivisible liability regardless of the number of children encompassed by it.[14]” Counsel contends that it is not open to the Registrar to “notionally identify” the amount of child support paid by a paying parent for each of two children, “the construction contended for by the Applicant does violence to the plain words of the statute[15].”
[13] Paragraph 2 of the First Respondent’s written submissions
[14] Paragraph 18 of the First Respondent’s written submissions
[15] Paragraph 24 of the First Respondent’s written submissions
Mr McWhinney, solicitor for the Child Support Registrar submits the SSAT properly interpreted and applied the relevant legislation to their considerations; and no error in law is evident in the SSAT decision.
Mr McWhinney submits that there is no provision within the child support legislation or regulations that supports the interpretation that a “notional amount” of paid child support can be identified within the single annual rate of child support for each child of the assessment.
I make findings about this issue under the heading “Discussion” below.
Did the Tribunal overlook submissions worthy of serious consideration?
Ms Bassant refers to paragraph 52 of the Tribunal’s reasons which reads[16]:
…the applicant made further legal argument relating to amounts overpaid. However, as the tribunal does not accept the argument that the child support amounts paid are divisible between the two children, those further arguments will not be addressed in these reasons.
[16] Appeal books folio S13 at paragraph 52
Ms Bassant contends it was open to the Child Support Registrar to identify discrete amounts of child support paid by Mr Haley for each of [X] and [Y] and to categorise each separate amount in accordance with its proper classification. Ms Bassant submits that the amount of child support relating to [X] (for whom child support is payable) is properly classified as a registrable maintenance liability and a child support debt. However, the amount of child support relating to [Y] (the subject of the section 107(1) declaration), in the absence of a recovery order under section 143 is an amount paid where no liability existed, and is therefore not a registrable maintenance liability or child support debt.
Ms Bassant argues it was not necessary for the Tribunal to first accept the applicant’s argument with regard to ‘identifying discrete’ amounts of child support paid for each child as a pre-condition to consideration of further argument. Ms Bassant says[17]:
…the applicant is not intractably committed to the view expressed at para 4 of the applicant’s written submissions to the Tribunal but simply suggested that course as a possible alternative method of properly giving effect to the consent orders.
[17] Paragraph 14 of the Applicant’s written submissions
Ms Bassant highlights other submissions made to the Tribunal which I have already summarised, to which she contends the Tribunal should have had regard.
Counsel for the First Respondent agrees with the Tribunal that the Registrar properly applied all monies paid by Mr Haley for both [Y] and [X], to Mr Haley’s child support liability for [X] alone. Counsel says[18]:
The Registrar is a creditor in respect of that liability and at common law the receipt by a creditor of monies paid by a debtor entitles the creditor to appropriate them in satisfaction of the liability.
[18] Paragraph 9 of the First Respondent’s written submissions
Counsel submits this is the common law and “in the absence of any contrary statutory provision, it will apply.”
Mr McWhinney for the Child Support Registrar, the Second Respondent, submits that this case can be distinguished from Mercer’s case[19] in that the Registrar has not refunded to Mr Haley any monies paid by him for [Y]’s support. He disputes the claim that the Registrar has in effect, given Mr Haley the same benefit of a section 143 order without such an order being obtained from the court. Mr McWhinney contends[20]:
The Registrar considers the Applicant’s proposal that the amounts of child support collected cannot, in effect, be fully applied to the liability on the Register as inconsistent with the legislation. The Registrar submits that she cannot, on one hand, vary the liability … for [Y] “as if it never existed” but then identify and segregate an amount of credit as if it did exist.
[19] Mercer v CSA [2004] FCA 465 at 24
[20] Paragraph 25 of the Second Respondent'
Discussion
I accept the First and Second Respondent’s submissions on the first question. I accept the appellant’s submissions in relation to the second. I find it noteworthy that Ms Bassant acknowledged there may be some other method of giving effect to the October 2007 consent orders, other than the method she suggested. I am satisfied there is another method.
As already noted, section 107(5) of the Assessment Act provides that Ms Farley’s application for administrative assessment of child support for the child [Y], is taken never to have been accepted by the Registrar. This means there was no registered maintenance liability in respect of [Y] because a condition for the raising of a registered maintenance liability is the acceptance of an application for administrative assessment of child support.[21]
[21] Mercer v CSA [2004] FCA 465 at 24
There is a prima facie entitlement on the part of Mr Haley to a refund of the child support paid as provided for in section 143(1). This is subject to any orders the court may make under section 143(3).[22] In the present case, on 24 October 2007 the court made an order that there be no order under section 143 in relation to the child [Y]. This means
Mr Haley cannot claim a refund of any child support paid for [Y].
[22] Riethmuller FM in DRP & AJL (2004) FLC 98-022 at 65
However, as a result of the section 107(1) declaration, the Child Support Registrar varied the child support register in accordance with section 37 of the Collection Act. Section 37 relevantly provides that when the Registrar believes an order has been made and the order varies or otherwise affects a registered maintenance liability:
The Registrar shall make such variations (if any) to the particulars entered in the Child Support Register in relation to the liability as the Registrar considers necessary or desirable to enable the order … to be given effect to under this Act[23]…
[23] Section 37(b) Child Support (Registration and Collection) Act 1988
I make these findings of fact about which there is substantial agreement between the parties. The Child Support Registrar credited all payments Mr Haley had paid for both [X] and [Y] against Mr Haley’s child support liability for [X]. Mr Haley at all relevant times had a child support liability for [X]. Mr Haley had no child support liability for [Y] at any time. The child support payments made by Mr Haley for [Y] were therefore an overpayment. When the Child Support Registrar credited all the child support payments made by Mr Haley for both children, to his liability for [X], the Registrar recovered Mr Haley’s overpayment for [Y].
I find the Child Support Registrar cannot recover monies paid when there is no registrable maintenance liability for the child to whom the overpayment relates. Registrable maintenance liabilities are defined in sections 17 and 17A of the Assessment Act. Mr Haley has never had a registrable maintenance liability for [Y] under either section 17 or section 17A. Under section 17, a liability is a registrable maintenance liability if it is a liability of Mr Haley to pay periodic support to
Ms Farley for [Y]. Mr Haley has no such liability for [Y]. Under section 17A a liability would be a registrable maintenance liability if Ms Farley had been required to pay an amount to Mr Haley as a result of a section 143 court order. In this case, there is no section 143 order.
Under section 71AA of the Collection Act the Registrar may offset child support debts between payer and payee when both have a child support debt referred to in sections 17 or 17A. This is not the case here. It is clear that the legislature intended that section 143 of the Assessment Act alone, provide for the recovery of any overpayment by the payer from the payee. I am satisfied the Registrar had no power to recover that overpayment as the Registrar has done.
It is true that Ms Farley is not being asked to repay funds she has actually received from the Child Support Agency as a result of payments made by Mr Haley in child support for both [X] and [Y]. However, the Child Support Registrar has recovered the over payment made by Mr Haley for [Y] by crediting the whole of the amount paid in child support by Mr Haley to his liability for [X].
While I agree with Ms Bassant for the appellant that the Objections Officer was wrong in the method of calculation, as earlier noted I do not accept her contention that it is open to the Registrar to nominally attribute half the amount paid by Mr Haley to [Y] and half to [X]. I find no basis in the provisions of the Assessment Act for Ms Bassant’s proposition that the child support paid for both [Y] and [X] should be categorised as 13.5% (half of 27%) for [Y] and 13.5% (half of 27%) for [X].
I find that the Registrar should have calculated the date to which
Mr Haley was paid for both [Y] and [X]. To that date, Mr Haley will have overpaid by one third of the total amount paid. (He was liable to pay at a rate of 18% but he paid at a rate of 27% so the overpayment is a third). The Registrar should have excluded that ‘one third’ overpayment from its calculations. From the date to which Mr Haley paid for both children going forward in time, Mr Haley should have been assessed to pay at a rate of 18% of his child support income for his one child, [X]. From the date to which Mr Haley has paid for both children going back in time, Mr Haley cannot recover because he abandoned that right when the court ordered there be no section 143 order. The Child Support Registrar has no power to recover this overpayment on Mr Haley’s behalf.
When the Registrar calculated the original assessed amount for [X] and [Y] from the child support liability ‘start date’[24] and deducted the correct assessment for [X] alone, I find the Registrar was in error. The Registrar failed to recognise that monies paid by Mr Haley related to
2 children.
[24] Appeal books folio P54
By calculating the “overpayment” in this way, the Registrar has incorrectly included the amount Mr Haley overpaid for [Y]. Mr Haley had a right to recover that ‘one third’ from Ms Farley but cannot do so because the court has ordered there be no section 143 order. The legislature has provided the mechanism for recovery of overpaid monies in section 143 of the Assessment Act. I am satisfied the legislature did not intend the Child Support Registrar to treat the overpayment as a registrable maintenance liability which can be recovered by the Registrar unless section 17A applies. As already noted, section 17A does not apply in this case.
Mr Haley’s right to recover merged in the judgment of the Court of October 2007. Mr Haley has no right to recover the ‘one third’ or any part of the ‘one third’, from the Child Support Agency. The amount
Mr Haley paid for [Y] is not recoverable.
It may be that the Registrar’s error occurred because [Y] and [X] are both children of one mother, Ms Farley. Had Mr Haley been paying child support for a child, the subject of a section 107(1) declaration, who was the child of a different mother, the error may have been avoided.
Determination
Section 110F of the Child Support (Registration and Collection) Act 1988 sets out the powers of courts when determining an appeal from the Tribunal. It provides:
The court…may make such order as it thinks appropriate by reason of its decision.
I have decided that the Tribunal’s decision will be set aside and the matter remitted to the Child Support Registrar for a re-calculation of Mr Haley’s child support liability according to law.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Sexton FM
Deputy Associate: Jessica Willis
Date: 3 November 2009
CORRECTIONS
Coversheet of Reasons amended to reflect Mr McWhinney’s correct title as “Authorised representative for the Second Respondent”
Paragraph 19 of the Reasons amended to reflect Mr McWhinney’s correct title as “Authorised representative for the Second Respondent”
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