FRISWELL & CHILD SUPPORT REGISTRAR
[2016] FCCA 869
•19 April 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FRISWELL & CHILD SUPPORT REGISTRAR | [2016] FCCA 869 |
| Catchwords: PRACTICE AND PROCEDURE – Summary Dismissal – Application for summary dismissal – whether substantive application has any reasonable prospects of success. COSTS – Applications for costs. PRACTICE AND PROCEDURE – Venue – change of venue – application to transfer proceeding to the Wollongong Registry. PRACTICE AND PROCEDURE – Response – where Response filed more than 14 days after date of service of the Application – where hearing of Application for Summary Dismissal did not take place until 18 March 2014 – no prejudice to Applicant. WORDS AND PHRASES – “non-parent carer” – the phrase “non-parent carer” in Child Support (Assessment) Act 1989 (Cth) at para. 83(1)(b) does not mean the Child Support Registrar. |
| Legislation: Child Support (Assessment) Act 1989 (Cth), ss.58, 80B, 80C, 80D, 80E, 81, 82, 83, 84, 99, 136 Evidence Act 1995 (Cth), s.131 |
| Cases cited: Ackers & Ducley [2010] FMCAfam 809 Felthouse v Bindley (1862) 11 Cb (NS) 869; 142 ER 1037 Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor (2005) 33 Fam LR 123; [2005] FamCA 158 Re JJT & Ors; ex parte Victoria Legal Aid (1998) 195CLR 184; 155 ALR 251; 72 ALJR 1141; FLC 92-812; [1998] HCA 44 In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90-714 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Shammas v Canberra Institute of Technology [2014] FCA 71 Singh v Super City Home Loans Pty Ltd [2011] FCA 646Spencer v Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 Waterford v The Commonwealth (1987) 163 CLR 54; [1987] HCA 25 |
| Applicant: | MS FRISWELL |
| Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | WOC 521 of 2007 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 18 March 2014 |
| Date of Last Submission: | 18 March 2014 |
| Delivered at: | Sydney |
| Delivered on: | 19 April 2016 |
REPRESENTATION
| Applicant: | In person |
| Solicitor for the Respondent: | Mr Gouliaditis |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application filed on 9 October 2013 is summarily dismissed.
Within twenty-one (21) days of the date of these Orders, the Applicant may file and serve a written submission showing cause why an Order should not be made requiring her to pay the Respondent’s costs of these proceedings in accordance with Schedule 1 to the Rules.
IT IS NOTED that publication of this judgment under the pseudonym Friswell & Child Support Registrar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
WOC 521 of 2007
| MS FRISWELL |
Applicant
And
| CHILD SUPPORT REGISTRAR |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Child Support Registrar for summary dismissal of the substantive Application which was filed on 9th October 2013.
The Application seeks the following final orders:
1. The Court make an Order terminating the Ex parte Agreement #2 imposed on the applicant by the Child Support Agency: section 80D(1)(c) and 136(2) of the Child Support (Assessment) Act 1989.
2, The Court make an Order enforcing the Agreement #1 made between the parties: section 111B(1)(l) of the Child Support (Registration and Collection) Act 1988;
3. The Court make an Order remitting the debt raised, fines and fees; for the period between the financial year 2011/2012 to the date of Judgment in this Court; or as the Court thinks fit; section 111B(1)(l) of the Child Support (Registration and Collection) Act 1988 and section 68 of the Child Support (Registration and Collection) Act 1988;
4. The Court make an Order that the respondent is obligated to pay child support arrears, a child support liability, in accordance with Agreement #1: Federal Circuit Court Rules 2001, Reg 25B.07(1)(a) within the meaning of 25B.07(2)(b);
5. Potential publication of this judgment be under a pseudonym or initial/s and not a word/name for the applicant and the children pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth); section 105 of the Child Support (Registration and Collection) Act 1988;
6. The Court make an Order that the respondent reimburse the applicant for the cost of these proceedings where these proceedings were necessitated by the failure of the Child Support Agency to comply with their own requirements: Federal Circuit Court Rules 2001 – Reg 25B.07(2)(f) and section 117(2) of the Family Law Act 1975.
In a Response filed on 29th January 2014, the Child Support Registrar seeks summary dismissal of the Application with costs.
The Final orders sought are:
1. The proceeding be dismissed.
Basis:
(Order 1) The relief claimed is premised on the existence of a “child support agreement”; however, no such agreement exists.
(Order 2) There is no current agreement as alleged, and in any event the Court does not have the power to make the order sought.
(Order 3) The Court has no power to remit child support debts or late payment penalties, and there are otherwise no fines or fees.
(Order 4) There is no current agreement as alleged, and in any event the Court does not have the power to make the order sought.
(Order 6) Opposed.
2. The Applicant pay the Respondent’s costs.
Evidence and Submissions
The Applicant relies on the following:
a)her Initiating Application filed on 9th October 2013;
b)her affidavit filed 9th October 2013;
c)her affidavit filed 11th December 2013;
d)her affidavit filed 26th February 2014;
e)her document entitled “Short Chronology and Issues of Applicant”; and
f)her Written Submissions filed on 26th February 2014.
The Child Support Registrar relies on the following:
a)Response filed on 29th January 2014;
b)Affidavit of Nick Gouliaditis affirmed 28th January 2014;
c)Respondent’s Submissions on Summary Dismissal dated 17th February 2014; and
d)Respondent’s Reply dated 13th March 2014.
The affidavit of Mr Gouliaditis of 28th January 2014 annexes a copy of a letter to the Applicant of 23rd January 2014. The letter was written in an attempt to resolve the matter without the necessity for litigation but it is an open letter and is therefore not caught by the provisions of s.131 of the Evidence Act 1995 (Cth). The letter was intended to:
a)inform the Applicant that her Application was misconceived;
b)invite her to discontinue her Application; and
c)endeavour to reassure the Applicant that her expressed concerns were unnecessary.
The letter states, in part:
The Application purports to invoke the Court’s power to set aside child support agreements under s.136 of the Child Support (Assessment) Act 1989 (Cth) …as we understand it, you assert that the child support payment arrangement between yourself and our client[1] is a “child support agreement” for that purpose…That is not correct for many reasons. For present purposes it is sufficient to note that the Registrar cannot be a party to a “child support agreement” made under Part 6 of the (Child Support) Assessment Act (see s.83).
[1] i.e. the Child Support Registrar
Your Application is therefore misconceived.
The letter went on to address what the Registrar understood to be the main reasons why the Applicant commenced the current legal proceedings, saying:
5.On 13 August 2013, you disagreed with the Registrar using an income of $68,486 in the child support assessment that issued for the period 1 September 2013 to 30 November 2014…That income was based on your income tax return for the 2009/2010 financial year (as adjusted by the inflation factor having regard to s 58 of the Assessment Act). Your concern was that reliance on the 2009/2010 tax return inflated the income component of the assessment and thus the amount of child support payable. On 21 August 2013, you provided an income tax declaration that your income for the 2012/2013 financial year was $30,000. You asserted that the income disclosed in the declaration was a better reflection of your expected income for the 2013/2014 financial year.
Further, you are concerned that you are accruing late payment penalties because your employer deductions are being applied only to child support arrears, and not your ongoing liability.
6. In relation to your first concern:
The Registrar sent you a letter on 7 November 2013…that acknowledged the income tax declaration you provided and stated that it would be used in your assessment from 1 September 2013…
Subsequently, our client received your taxable incomes for the 2010/2011, 2011/2012 and 2012/2013 financial years from the Australian Taxation Office. On 4 December 2013, the Registrar sent you another letter…indicating that our client had received those updated incomes for you. Your income for the 2012/2013 financial year was revised upwards from your estimate to $38,162, on the basis of your taxable income and was used in the child support assessments as set out in the notices that were sent to you (including the notice that we refer to immediately below).
You were sent a new child support assessment notice for the period 1 September 2013 to 30 November 2014…This document stated that your 2012/2013 taxable income of $38,162 was used in the assessment of your child support liability for that period.
7.Therefore, the Registrar believes that your concern regarding the incomes that were used in your assessments has been met.
8. In relation to your second concern:
The Registrar’s letter of 7 November 2013 noted that employer deductions are applied, at first instance, to your ongoing liability…The remainder is applied to any arrears…Late payment penalties will only accrue if payments received directly by you or by way of employer deduction are insufficient to pay your child support debt by the due date (s.67). The Registrar calculates late payment penalties on the unpaid balance of a parent’s child support debt after the due date for each payment period.
Additionally, your claim that our client has omitted child support payments is incorrect…The document you rely on to make this assertion correctly asserts that no payments were made, directly by you or by way of employer deduction, between 20 April 2013 and 17 May 2013…We enclose a “Child Support Payer Transaction Statement” dated 10 January 2014 for the period 1 January 2004 to 10 January 2014. The statement makes it plain that, between 20 April 2013 and 17 May 2013, no payments were made towards your account. However, the statement also records salary deductions being credited on 12 April 2013 and 27 May 2013, among other dates.
9.Therefore, our client believes your concerns regarding how employer deductions are being applied are unwarranted.
The letter later went on:
13.Our client is unable to identify any further action it could take. We invite you to inform us how else our client might address your concerns, should you believe they have not been addressed.
14.We also invite you to discontinue the Application. Should you do so on or before the next court date (28 January 2014), the Registrar will not pursue his costs.[2]
[2] Affidavit of N. Gouliaditis 28.1.2014 Annexure “NG-1”
The Applicant did not discontinue her Application.
The Respondent submitted that the Court should dismiss the Application under r.13.10, which states, relevantly, that:
The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if the Court is satisfied that:
(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim…
A near identical power is contained in s.17A of the Federal Circuit Court of Australia Act 1999 (Cth). As the substance of the relevant tests is the same, the Court may proceed under either or both provisions (see Shammas v Canberra Institute of Technology[3]at [12]-[14], which dealt with s.31A of the Federal Court of Australia Act 1976 (Cth), which is identical to s.17A of the Federal Circuit Court of Australia Act).
[3] [2014] FCA 71
Section 31A was considered by the High Court in Spencer v Commonwealth of Australia[4]. Their Honours Hayne, Crennan, Kiefel and Bell JJ held at [53]:
In this respect, s 31A departs radically from the basis upon which earlier forms of provision permitting the entry of summary judgment have been understood and administered. Those earlier provisions were understood as requiring formation of a certain and concluded determination that a proceeding would necessarily fail.
[4] [2010] HCA 28; (2010) 241 CLR 118
Their Honours went on to hold at [59]-[60]:
59.In many cases where a plaintiff has no reasonable prospect of prosecuting a proceeding, the proceeding could be described (with or without the addition of intensifying epithets like “clearly”, “manifestly” or “obviously”) as “frivolous”, “untenable”, “groundless” or “faulty”. But none of those expressions (alone or in combination) should be understood as providing a sufficient chart of the metes and bounds of the power given by s.31A. Nor can the content of the word “reasonable”, in the phrase “no reasonable prospect”, be sufficiently, let alone completely, illuminated by drawing some contrast with what would be a “frivolous”, “untenable”, “groundless” or “faulty” claim.
60.Rather, full weight must be given to the expression as a whole. The Federal Court may exercise power under s 31A if, and only if, satisfied that there is “no reasonable prospect” of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly.[5]
[5] (2010) 241 CLR 118 at [59]-[60]
The Respondent also referred to the decision of Foster J in Singh v Super City Home Loans Pty Ltd[6] at [129].
[6] [2011] FCA 646
The Respondent went on to submit each substantive claim for relief in the Initiating Application is so devoid of merit as to make any permitted continuation of these proceedings contrary to the administration of justice.
As to Order 1 in the Application, seeking a termination of what the Applicant describes as “Ex parte agreement #2”, the Respondent submits that this order is premised on the existence of a binding child support agreement made in accordance with Part 6 of the Child Support (Assessment) Act. The Respondent submits that the Applicant is not a party to a child support agreement and the Applicant’s child support liability is determined in accordance with formula assessments under Part 5 of the Act.
What the Applicant describes as “Ex parte Agreement #2” is not an agreement but a decision of the Respondent to collect outstanding child support arrears and late payment penalties by way of deduction from the Applicant’s wages, as authorised by s.72A of the Child Support (Registration and Collection) Act.
Further, contrary to what the Respondent believes to be a submission implicit in the Applicant’s affidavit, the Respondent cannot by contract fetter the Respondent’s ability to exercise the Respondent’s powers under the Registration and Collection Act [7](assuming the earlier payment arrangement is capable of being characterised as a contract, which is denied). It is submitted that the Respondent only issued a garnishee notice after the Applicant was deemed to be in default of the payment arrangement.
[7] i.e. the Child Support (Registration and Collection) Act
The Respondent submits that the claim in Order 1 is misconceived and should be summarily dismissed.
The second order sought by the Applicant is to enforce what the Applicant calls “Agreement #1”, the payment arrangement into which she entered with the Respondent to pay off her arrears.
The Respondent submits that this proposed order is also misconceived and should be summarily dismissed, because the payment arrangement is not a contract but a delegated exercise of a discretion conferred on the Finance Minister by s 34(1)(c) of the Financial Management and Accountability Act 1997 (Cth).
Further, it was submitted that the duty to collect outstanding liabilities and decide on the appropriate manner of collection is reposed on the Respondent. The Court’s supervisory jurisdiction permits it to ensure that that the Respondent acts wholly within legal limits but it cannot substitute its own judgment on the best mechanism for collection (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd[8]per Mason J at [40]).
[8] (1986) 162 CLR 24
Thus, it was submitted that the Applicant’s proposed Order 2, to the extent that it pressed independently of Order 1, is also misconceived and should be summarily dismissed.
As to the Applicant’s proposed Order 3, seeking to remit “the debt raised, fines and fees”, the Respondent submits that:
a)Child support debts accrue automatically in accordance with the particulars of a maintenance liability entered in the Child Support Register under s.30(1) of the Child support (Registration and Collection) Act; there is no power to remit child support debts; and
b)Late payment penalties may be remitted in limited circumstances but the power to do so lies with the Child Support Registrar (see Child Support Registrar & Sisley[9] at [16]-[18]). The Applicant may lodge an objection against a decision not to remit these penalties under s.80 of the Child Support (Registration and Collection) Act.
[9] [2007] FMCAfam 724
The Child Support Registrar submits that this claim has no prospects of success and should be summarily dismissed.
The Respondent submits that the meaning of the Applicant’s proposed order 4 is unclear. The Applicant seeks an order that “the respondent is obligated to pay child support arrears, a child support liability, in accordance with Agreement #1”.
Mr Gouliaditis submitted for the Registrar that:
22. It is not clear whether the applicant is seeking to:
22.1have her ongoing child support liability determined by reference to a previous payment arrangement; or
22.2in some way require the respondent to pay that liability (as may be suggested by the purported reliance on r 25B.07(1)(a) and (2)(b) of the Rules.
23. In either event this claim must fail.
23.1Ongoing child support liability is set by reference to the particulars in the Child Support Register (s 30(1) of the Collection Act). If the applicant wishes to challenge any particular, it is open to her to lodge and objection (see item 2 of the table at s 80 of the Collection Act).
23.2Child support debts are payable to the respondent, and may be sued for and recovered by the respondent or the payee (s 113 of the Collection Act). The applicant has no basis, or standing, to take enforcement action against the respondent.[10]
[10] Respondent’s Submissions on Summary Dismissal page 5 at [22]-[23]
The Child Support Registrar submits that this claim should also be summarily dismissed.
In her Written Submissions filed on 26 February 2014, the Applicant submitted that, whilst the Child Support Registrar has disputed her proposed orders 1, 2, 3, 4 and 6, her proposed Order 5 is not in dispute. That said, it does not follow that the Court will necessarily make that order.
The Applicant also noted that her Initiating Application seeks Interim Orders, including a request to transfer the hearing of the substantive Application to the Wollongong Registry of the Court.
The Applicant submits that the Respondent’s application for summary dismissal (contained in the Response) should be dismissed. She submits that it is unsatisfactory for the Respondent to attempt to test the Applicant’s evidence or dispute facts alleged which are matters for a final hearing. The Court may not be able to pre-empt those factual and legal issues raised in paragraphs [3] and [6] of her submission, “being outside of conclusive determination at final hearing”.
The issues to which the Applicant refers at paragraphs [3] and [6] of her Submission are:
3.1The respondent cannot fetter his ability to exercise his various powers;
3.2Child support debts accrue automatically which accrue penalty based on particulars in the Register;
3.3 It is open to the applicant to lodge an objection.
…
6.1.[1] There is no Agreement between the parties as alleged by the applicant; and
6.2.[2] the Court has no power to make the Orders sought by the applicant.[11]
[11] Written Submissions on Behalf of the Applicant, pages 2 and 3
The Applicant submitted that she is the payer under a registered maintenance liability determined by the Registrar in 2004 as a liability to pay child support under Part 4 of the Child Support (Assessment) Act 1989.
The Applicant complains that the Response was filed out of time. It was filed on 29th January 2014, which is without doubt a significant period of time after the time provided by Rule 4.03. A Response should be filed within 14 days of service of the Application to which it relates. The hearing of the application for summary dismissal did not take place until 18th March 2014, almost seven weeks later.
There is no prejudice to the Applicant due to the late filing of the Response.
The Applicant has made submissions in support of her contention that the Response, seeking summary dismissal of her Application, should itself be dismissed.
As to Order 1 sought by the Respondent (“The Proceeding be dismissed”), the Applicant has addressed the various grounds out of numerical order. In respect of the Registrar’s first and third grounds, the Applicant relies on the decision of Monahan FM[12] in Ackers & Ducley[13], where his Honour, at [42] and [43], considered the provisions of the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) relating to child support agreements made before 1 July 2008.
[12] As his Honour then was
[13] [2010] FMCAfam 809
With respect, the relevance of this decision is not apparent, as his Honour was discussing transitional arrangements for child support made before 1st July 2008, and the agreements to which the Applicant refers appear to have been made in 2012.
The Applicant takes issue with the Respondent’s contention that the Respondent is not a party to what she submits is a child support agreement, submitting that if that is the case, then s.83 of the Assessment Act would serve no purpose. She further submits that if an agreement is deemed “binding”, then pursuant to s.136((2)(d)) of the Assessment Act it may only be set aside by evidence of exceptional circumstances.
The Applicant also takes issue with the Respondent’s application for costs, referring to s.117 of the Family Law Act 1975 (Cth) and noting that:
a)Parties bear their own costs under s.117(1) of the Act; and
b)Circumstances which would render an award of costs appropriate are at the discretion of the Court under s.117(2).
The Applicant also relied on the decision of the High Court of Australia in Re JJT & Ors; ex parte Victoria Legal Aid.[14] She submitted that, in considering the matters required to be considered in s.117(2A) of the Act:
[14] (1998) 195 CLR 184; 155 ALR 251; 72 ALJR 1141; FLC 92-812; [1998] HCA 44
On this basis, noting there is no charge for applications in a Case of Child Support, the respondent’s conduct becomes relevant to the Court in respect of the Family Law Act 1975 as follows [emphasis added]:
“(2A) in considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(g) such other matters as the court considers relevant”.
If so, the respondent’s claim that the principle[15] application is wholly unsuccessful does not conclusively determine the width of the discretion of the Court on these matters; as the applicant had also underestimated. Only God knows.[16]
[15] sic
[16] Applicant’s Written Submissions 26.2.2014 pages 9-10
The Applicant denied the Respondent’s contention that the Applicant’s case is so fundamentally weak that it lacks a reasonable cause of action. The Applicant went on to submit:
However, the respondent is essentially attacking those Orders sought by the applicant. The Submissions represent a factual situation whereby the respondent is dissatisfied with the applicant.
Findings of fact are not to be turned into questions of law.[17]
[17] Applicant’s Submissions page 10 at paragraph [25]
The Applicant refers the Court to the decision of the High Court in Waterford v The Commonwealth.[18]
[18] (1987) 163 CLR 54; [1987] HCA 25
The Applicant goes on to submit at paragraphs [27] and [28]:
27.Whilst it is often difficult to gauge what success and absence thereof might ensue in proceedings the Court may not be satisfied that the applicant could be fairly and accurately pre-determined as being wholly unsuccessful.
28.The applicant’s submissions are claimed to have some force save the contention that there could be any argument that their claim may fail on the basis advanced by the respondent.[19]
[19] Applicant’s Submissions page 11 at [27]-[28]
Consideration
The Applicant’s case is based on there being two child support agreements in existence.
In Order 1 of her application filed on 9th October 2013, the Applicant seeks an order terminating what she describes as “the Exparte Agreement #2 imposed on the applicant by the Child Support Agency”.
In Orders 2 and 4 of the Application, the Applicant seeks an order enforcing what she describes as “the Agreement #1 made between the parties” and an order that “the respondent[20] is obligated to pay child support arrears, a child support liability, in accordance with Agreement #1”.
[20] Should this mean the Applicant?
The Applicant relies on her affidavits of:
a)8th October 2013;
b)19th November 2013; and
c)26th February 2014.
It is the Applicant’s first affidavit, of 8th October 2013, that refers to the two Agreements that form the subject of the Application. The second and third affidavits annex various items of correspondence.
In her affidavit of 8th October 2013 the Applicant claims at sub-paragraph 1(a):
A registered Child Support Agency Agreement (Reference: 912873599288) exists between the parties as at July 2012, and money was paid to the Child Support Agency by the applicant.
The Applicant went on to depose at sub-paragraph (c):
The parties further agreed in September 2012 to amend the ‘Mode of Payment’ to be paid by the employer of the applicant, on a regular basis, in accordance with the July 2012 Child Support Agency Agreement.
The Applicant claims that she and the Child Support Registrar “entered into a contractual Agreement #1” for the period 31st July 2013 to 8th September 2015, which forms the child support agreement which the Applicant claims should still be in force.[21]
[21] Affidavit of Ms Friswell 8.10.2013 at paragraph [5]
She deposed in her affidavit that a letter dated 19th July 2012 sets out that agreement. The Applicant asserts that a copy of that letter can be found at Annexure “C” of her affidavit, but it appears that an error has occurred, because the document at Annexure “C” is a letter from the General Manager Child Support Operations dated 24th September 2012. This letter states that “your child support payments will be made to the Child Support Agency (CSA) from funds which are or will be held by NSW Health Service – (omitted).”
The letter goes on to state that the current outstanding child support amount is $3,432.27 and:
NSW Health Service – (omitted) is required to pay $0.07 cents in every dollar until the outstanding child support is paid in full.[22]
[22] Ibid Annexure “C”
There is a letter dated 19th July 2012 annexed to the Applicant’s affidavit at Annexure “D”. It is possible that this is the document to which the Applicant refers. That letter confirmed to the Applicant that the Child Support Agency discussed with her about her payment arrangements for her outstanding child support amount of $3,485.06. The letter told the Applicant that she was required to pay:
a)Ongoing additional payments of $42.25 per fortnight, with the first payment due on 31st July 2012 and continuing until 8th September 2015;
b)A final payment of $20.56 payable 22nd September 2015; and
c)Those payments were in addition to her regular child support amount of $38.58 per month, with the next payment due on 7th August 2012.
Whichever of those two documents is claimed by the Applicant to be a child support agreement under the provisions of the Child Support (Assessment) Act 1989, it is clear that neither of them in any way constitutes such an agreement.
The existence of a document that the Applicant describes as the “Exparte Agreement #2”, which the Applicant seeks to have set aside, is even more mystifying. The Applicant describes the situation in paragraphs [9] to [14] of her affidavit, which I have reproduced in full.
The Applicant deposes:
9.The applicant became concerned that the Child Support Agency misconstrued the legal effect of the Agreement #1, when an income assessment (for period 2013/2014 financial year) was conducted based on a taxation return more than 4 years previous. The applicant wrote to the Child Support Agency about these concerns in a letter dated 13 August 2013. ‘Annexure E’ is a letter entitled “Your letter dated 31 July 2013: Re Child X” dated 13 August 2013 identifying the applicant’s concerns.
10.The letter entitled “Your letter dated 31 July 2013: Re Child X” dated 13 August 2013 identifying the applicant’s concerns was faxed to the Child Support Agency and attached was an account statement dated 18 May 2013. The account statement dated 18 May 2013 from the Child Support Agency appeared to omit child support payments being made according to the Agreement #1. ‘Annexure F’ is the Child Support Agency “Account Statement” dated 18 May 2013.
11.The applicant received a phone call from the Child Support Agency within a period of 9 days by a representative, Ms M, where an unsatisfactory discussion took place on 22 August 2013.
12.The rise of the Child Support Agency’s Exparte Agreement #2, reflecting a unilateral imposition to bind the applicant by silence or not informing the applicant about the change to an essential term in contractual agreement #1, was confirmed by Ms M in the phone call of the Child Support Agency on 22 August 2013. This fact and other concerning issues are identified in a letter written to the Child Support Agency by the applicant dated 1 September 2013. ‘Annexure G’ is the letter written to the Child Support Agency “RE: Operator Ms M, Child Support Agency, conduct on 22 August 2013 regarding Child Support Reference Number (omitted)” dated 1 September 2013.
Aggravating Factors
13.The Exparte Agreement #2 imported no Quid Pro Quo; no negotiation; no effect to policy, common law or legislation and the applicant was denied any right or opportunity to object. Silence (by the applicant and lack of knowledge afforded to the applicant by the Child Support Agency) cannot give rise to a contractual exparte agreement: Felthouse and Bindley (1862) 11 CB (NS) 869; 142 ER 1037.
14.The Exparte Agreement #2 was imposed on the applicant by the Child Support Agency’s alleged voluntary assumption of legal enforceability and the applicant incurred fines that would otherwise not have occurred. It is said that there is no ‘just cause’ to this unilateral arrangement that could remotely imply the Child Support Agency act/s was ‘right’ and ‘proper’ because of the lack of regard for the Commonwealth and common law: In the Marriage of Lutske[23](1979) 5 Fam LR at 559.
[23] Sic The case is called In the Marriage of Lutzke (1979) 5 Fam LR 553; FLC 90-714
There is nothing in any of the Applicant’s affidavit evidence that goes any way towards demonstrating the existence of any document that could fit the Applicant’s description of Ex parte Agreement #2.
Child Support Agreements
The law relating to child support agreements can be found in Division 1 of Part 6 of the Child Support (Assessment) Act1989.
There are two types of child support agreements provided by the Act:
a)Binding child support agreements; and
b)Limited child support agreements.
The purpose of child support agreements is set out in s.80B of the Act:
This Part applies where the parents of an eligible child, or a parent or the parents of an eligible child and a non-parent carer of the child, want to give effect to an agreement between themselves in relation to child support payable for the child.
Binding child support agreements are covered by s.80C of the Act, which provides:
(1) An agreement is a binding child support agreement if:
(a) the agreement is binding on the parties to the agreement in accordance with subsection (2); and
(b) the agreement complies with subsection 81(2).
(2)For the purposes of subsection (1), an agreement is binding on the parties to the agreement if, and only if:
(a) the agreement is in writing; and
(b)the agreement is signed by the parties to the agreement; and
(c)the agreement contains, in relation to each party to the agreement, a statement to the effect that the party to whom the statement relates has been provided, before the agreement was signed by him or her, as certified in an annexure to the agreement, with independent legal advice from a legal practitioner as to the following matters:
(i) the effect of the agreement on the rights of that party;
(ii) the advantages and disadvantages, at the time that the advice was provided, to the party of making the agreement; and
(d)the annexure to the agreement contains a certificate signed by the person providing the independent legal advice stating that the advice was provided; and
(e)the agreement has not been terminated under section 80D; and
(f) after the agreement is signed, either the original agreement or a copy of the agreement is given to each party.
Section 81 of the Act provides:
(1) An agreement is a child support agreement if:
(a) the agreement is a binding child support agreement; or
(b) the agreement is a limited child support agreement.
(2)An agreement is a binding child support agreement or a limited child support agreement if it complies with the following provisions:
(a)section 82 (children in relation to whom agreements may be made);
(b)section 83 (persons who may be parties to agreements);
(c)section 84 (provisions that may be included in agreements).
Limited child support agreements are defined by s.80E(1) of the Act, which provides:
(1) An agreement is a limited child support agreement if:
(a) it is in writing; and
(b) it is signed by the parties to the agreement; and
(c) it complies with subsection 81(2); and
(d) either:
(i) it meets the conditions in subsection (2), (3) or (4), as the case requires, (assuming the agreement is accepted by the Registrar): or
(ii) it has been accepted by the Registrar under section 98U.
Conclusions
The Applicant’s case is predicated upon the existence of two purported child support agreements, which she calls “Agreement #1” and “Exparte Agreement #2”. There are no such agreements.
The Application is fundamentally misconceived, in that neither of the purported agreements are child support agreements in any way. There certainly be no such document as an “ex parte agreement”. The phrase “ex parte” means something done by one party in the absence of the other[24]
[24] Osborn’s Concise Law Dictionary 8th Edition, Sweet & Maxwell, page 137
The Child Support Registrar cannot be a party to a child support agreement, as the Registrar is not a parent of the child or a non-parent carer (see s.80B).
There is no document signed by the parties (ss.80C, 80E) with any statement that the parties received independent legal advice (s.80C).
There is no compliance with s.81(1) as the requirements of s.83 have not been met, notwithstanding the Applicant’s assertion to the contrary. Subsection 83(1) provides that:
An agreement is a child support agreement only if it is made between:
(a)2 parents of a child who, under section 25, would be able to properly make an application for administrative assessment of child support for the child in relation to whom the agreement is made on the day on which the agreement is entered into; or
(b)one or both parents of a child, and a non-parent carer of the child, who, under section 25 and 25A of the Act, would be able to properly make an application for administrative assessment of child support for the child in relation to whom the application is made on the day on which the agreement is entered into.
It is difficult to fathom why the Applicant submits that if the Respondent were not a party then s.83 would serve no purpose (see at [41] above). Section 83 makes it quite clear that the parties to a child support agreement must either be the child’s parents or one or both of the parents and a non-parent carer. The phrase “non-parent carer” cannot possibly mean the Child Support Registrar.
The Applicant has sought to rely, primarily, on three authorities:
a)Ackers & Ducley[25];
b)Felthouse v Bindley[26]; and
c)In the Marriage of Lutzke[27].
[25] supra
[26] supra
[27] supra
All of them can be distinguished.
Ackers & Ducley concerns an application to set aside a child support agreement made in 2004 and involves an analysis of the Court of the transitional provisions enacted by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 insofar as they relate to child support agreements entered into prior to 1st July 2008. With respect, it has no relevance to the present matter.
Felthouse v Bindley is a contract case, establishing that silence to an offer cannot be construed as acceptance of the offer. This is trite law but, with respect, is irrelevant to the present matter, as there is no contract between the Child Support Registrar and the Applicant.
In the Marriage of Lutzke is a case concerning an order discharging an order form child maintenance made under the Family Law Act 1975. In the decision, Lindenmayer J considered the circumstances where a Court may discharge a maintenance order under the provisions of s.83 of the Family Law Act. The decision can be distinguished as it has no relevance to the matters to be decided in this case.
The Application must fail, as it seeks to set aside a child support agreement that was never made and to enforce an equally non-existent child support agreement. The Application is without any merit and the Applicant has no reasonable prospect, or in deed any prospect whatsoever, of successfully prosecuting her claim.
The Application will be summarily dismissed.
The Respondent Child Support Registrar seeks an order for costs on dismissal in accordance with Schedule 1 to the Rules. Costs are governed by the provisions of s.117 of the Family Law Act. Whilst it is the case that, under s.117(1), each party to proceedings shall bear his or her own costs, this is subject to subsection (2) of s.117.
Subsection 117(2) provides that if the Court is of opinion that there are circumstances that justify it in doing so, the Court may, subject to subsection 2A, make such order as to costs as the Court considers just. There are, in subsection 2A, seven paragraphs, (a) to (g), containing matters to which the Court shall have regard when considering making an order under subsection (2).
The matters under subsection 2A are, in summary:
a)the financial circumstances of each of the parties;
b)whether any party is legally aided;
c)the conduct of the parties to the proceedings;
d)whether the proceedings were necessitated by the failure of a party to comply with previous court orders;
e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
f)whether any offer in writing has been made to settle the proceedings; and
g)any other matters the Court considers relevant.
There is no evidence of the Applicant’s financial circumstances. It is unnecessary to inquire as to the financial circumstances of the Respondent, as it is an agency of the Commonwealth Government.
There is no evidence that any party is in receipt of a grant of legal aid.
There is nothing untoward about the conduct of the parties to the proceedings. Whilst the Applicant has made much of the fact that the Respondent’s written submissions were late, no injustice arises from that fact.
There is no evidence of a failure by either party to comply with a previous order of the Court.
The Applicant has been wholly unsuccessful in the proceedings.
The Respondent did make a written offer of settlement early in the proceedings. On 23rd January 2014 the solicitor then acting for the Respondent wrote an open letter to the Respondent about her claim, challenging the contentions in her Application and attempting to address what the Registrar understood to be her concerns. The letter forms Annexure “NG1” to the affidavit of Nick Gouliaditis affirmed 28th January 2014.
The offer is contained in the final paragraph of the letter, paragraph 14, which says:
We also invite you to discontinue the Application. Should you do so on or before the next court date (28 January 2014), the Registrar will not pursue his costs.
Prima facie, it would appear that the Respondent has made out a case for an order for costs. It is established that there only needs to be one factor established in s.117(2A) to allow the Court to form an opinion that there are circumstances that justify the Court to make an order for costs. In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish & Anor[28], the Full Court of the Family Court held at [41]:
…Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.[29]
[28] (2005) 33 Fam LR 123; [2005] FamCA 158
[29] (2005) 33 Fam LR 123 at 130 [41] per Kay, Warnick & Boland JJ
Here, there are two factors which support the Registrar’s contention that an order for costs should be made against the Applicant. The Applicant will be given an opportunity to file and serve a written submission as to why an order for costs should not be made against her.
The Application will be summarily dismissed under Rule 13.10.
I certify that the preceding ninety-three (93) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 19 April 2016
3
10
10