Gallagher v Child Support Registrar

Case [2021] FCCA 462

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gallagher v Child Support Registrar [2021] FCCA 462

File number(s): SYG 300 of 2021
Judgment of: JUDGE MANOUSARIDIS
Date of judgment: 12 March 2021
Catchwords: PRACTICE AND PROCEDURE – Child Support – application under s 111C(3) of the Child Support (Registration and Collection) Act 1988 (Cth) for continuation of a stay of a decision made by the Child Support Registrar (Registrar) under s 30(1) of the Child Support (Assessment) Act 1989 (Cth) (s 30(1) Decision) that an application for administrative assessment of child support had been properly made – whether there is a serious question that the applicant could rely as a ground to his objection to the s 30(1) Decision that the applicant is not a parent of the child because the child has been adopted – no serious question - whether there is a serious question that the applicant could rely as a ground to his objection to the s 30(1) Decision that the applicant and the claimant for administrative assessment had agreed that the claimant would make no claim for child support – no serious question - whether assuming the Registrar was required to give the applicant notice before making the s 30(1) Decision the Registrar’s failure to do so would have been material to the s 30(1) Decision – no serious question – application for continuation of stay dismissed – proceeding for stay dismissed.
Legislation:

Child Support (Assessment) Act 1989 (Cth) ss 23, 24, 25, 25A, 27, 29, 75, 77, 78, 79, 106A, 107

Child Support (Registration and Collection) Act 1988 (Cth) ss 4, 10, 17, 26, 30(1), 72D, 72Q, 80(1), Item 9, 80(4), 104(1) 111C

Property Relationships Act 1984 (NSW) ss 45(2), 47
Cases cited:

Black & Black [2008] FamCAFC 7

In the Matter Of: B and J (Artificial Insemination) [1996] FamCA 124

Jones v Child Support Registrar [2007] FCA 1732

Luton v Lessels [2002] HCA 13; 210 CLR 333

Number of paragraphs: 40
Date of hearing: 5 March 2021
Place: Sydney
Counsel for the Applicant: Mr J Loxton, by telephone
Solicitor for the Applicant: Christopher Levingston & Associates
Solicitor for the Respondent: Mr C Bishop of Mills Oakley Lawyers, by telephone

ORDERS

SYG 300 of 2021
BETWEEN:

MR GALLAGHER

Applicant
AND:

CHILD SUPPORT REGISTRAR

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS THAT:

1.The application for a continuation of order 1 of the orders made on 26 February 2021, as continued by the orders made on 5 March 2021, is dismissed.

2.The proceeding is dismissed.

3.Subject to order 4, the applicant pay the respondent’s costs.

4.The parties have liberty to apply by email communication to the chambers of Judge Manousaridis by no later than 26 March 2021 for an order to vary or discharge order 3, such communication to be supported by short written submissions stating the orders that are sought, the grounds on which the orders are sought, and whether the party requires a hearing or…

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Gallagher v Child Support Registrar [2021] FCCA 462
Case
[2021] FCCA 462
Decision Date

CaseChat Overview and Summary

In the matter of *Gallagher v Child Support Registrar*, Mr Gallagher, the applicant, sought the continuation of a stay order against the Child Support Registrar, the respondent. The dispute arose after Mr Gallagher became aware of child support deductions from his tax return, having not received prior notification from the Child Support Agency. He subsequently received notices from Services Australia regarding child support deductions from his pay, and a letter concerning overdue amounts.

The court was required to determine whether to continue the stay order. This involved considering the statutory provisions under the *Child Support (Registration and Collection) Act 1988* (Cth) and the *Child Support (Assessment) Act 1989* (Cth) that governed the application for a stay. Specifically, the court needed to assess the applicant's grounds for objection to the child support assessment, which appeared to be based on a termination agreement suggesting the child had been adopted by a stepfather, thereby ceasing his parental responsibility.

Manousaridis J considered the principles for granting a stay, including whether there was a serious question to be tried and the balance of convenience. The Registrar argued that the termination agreement, not made in accordance with Part 6 of the Assessment Act, could not legally bar a child support application. The applicant contended that the termination agreement, supported by an affidavit and referencing adoption, constituted a "terminating event" and was binding under NSW legislation. The applicant also offered to continue meeting assessed liabilities pending the determination of his objections, submitting this favoured the continuation of the stay.

The application for a continuation of the stay order was dismissed, and the proceeding was dismissed. The applicant was ordered to pay the respondent's costs, with liberty to apply to vary or discharge this costs order by a specified date, supported by written submissions and indicating whether a hearing was required.

Orders

Orders of the court

SYG 300 of 2021

BETWEEN:

MR GALLAGHER

Applicant

AND:

CHILD SUPPORT REGISTRAR

Respondent

ORDER MADE BY:

JUDGE MANOUSARIDIS

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS THAT:

1. The application for a continuation of order 1 of the orders made on 26 February 2021, as continued by the orders made on 5 March 2021, is dismissed.

2. The proceeding is dismissed.

3. Subject to order 4, the applicant pay the respondent’s costs.

4. The parties have liberty to apply by email communication to the chambers of Judge Manousaridis by no later than 26 March 2021 for an order to vary or discharge order 3, such communication to be supported by short written submissions stating the orders that are sought, the grounds on which the orders are sought, and whether the party requires a hearing or instead consents to Judge Manousaridis determining on the papers the application for the variation or discharge of order 3.

Section 110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

The power conferred by s 111C(3) of the Registration and Collection Act is discretionary; and the principles for the exercise of that power were considered by Emmett J in Jones v Child Support Registrar in the context of an application to stay a “departure prohibition order” made by the Registrar under s 72D of the Registration and Collection Act pending the determination of an appeal to the Federal Court under s 72Q. His Honour said:[14] It appears to me that, before a stay could be granted, I would have to be satisfied that there is a serious question to be tried on the appeal or, putting it another way, that there is at least some arguable basis for suggesting that the appeal might succeed. Secondly, it would be necessary for the Court to have regard to the balance of convenience. Section 111C(3) of the Act requires the Court to take into account the interests of the persons who may be affected by the outcome of the proceeding. That, I suspect, does not go much beyond the balance of convenience. [14] Jones v Child Support Registrar [2007] FCA 1732, at 10BACKGROUND On about 1 February 2021 the applicant became aware that an amount had been deducted from a tax return and transferred to the Child Support Agency (CSA). The applicant says he had not received any notice from the CSA of any application for child support. On 1 February 2021 the applicant sent a letter to the CSA requesting the CSA “explain what this is about”, and demanding “an immediate refund”. On 23 February 2021 the applicant received three documents issued by Australian Government Services Australia (Services Australia). One is a document titled “Notice of Child Support Deductions” dated 16 February 2021 issued to the applicant’s employer which relevantly states: This notice sets out the child support deductions DEPARTMENT OF COMMUNITIES AND JUSTICE is required to make from the salary/wage of the employee/contractor named below. It should be used until it is replaced by a new one or the employee/contractor no longer works for you.Name of employee/contractor: [Applicant]Date of Birth [date specified]Payroll number [number provided]Pay day start: 4 March 2021Amount to deduct: [amount per fortnight stated]The protected earnings amount is currently [amount stated] per fortnight. For more details about this amount please refer to the Employer Handbook A second document is a letter dated 16 February 2021 addressed to the applicant in his capacity as employee. It states that Services Australia asked the applicant’s employer “to start deducting child support payments from your pay”. The letter provided further information, including the child support reference number that had been assigned to the child support payments, and a telephone number the applicant could call if he has any questions. A third document is a letter dated 17 February 2021 addressed to the applicant. It begins by stating “[w]e would like to talk to you about the payment of your overdue amounts”. The letter identified the amount which it described as “child support”. The letter continued (emphasis in original): If we do not hear from you within seven days from the date of this letter we will arrange deductions from your pay for the ongoing child support amount and additional deductions for overdue amounts.You employer will deduct . . . from your pay each fortnight . . . . The deductions will begin on 3 March 2021.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It therefore appears the Registrar made a child support assessment in favour of the Child Support Claimant and against the applicant (Child Support Decision). That necessarily implies the Registrar made a decision under s 30(1) of the Assessment Act that the Child Support Claimant’s application for administrative assessment of child support was properly made (s 30(1) Decision). By letter to the Registrar dated 24 February 2021 the applicant objected to “the application against me”. The applicant said the grounds on which he relies are set out in “my affidavit, copy attached”. That is a reference to the affidavit the applicant made on 24 February 2021 which annexes the draft of the Termination Agreement. That includes a term to the effect that the applicant will consent to the Child Support Claimant being adopted by the Step Father. Thus, it may be taken that the applicant claims that he is no longer the child’s parent because, as contemplated by the Termination Agreement, the Step Father adopted the child. The applicant did not otherwise object to the amount for which the Registrar assessed the applicant for child support. The applicant’s letter dated 24 February 2021 to the Registrar, therefore, may be taken to be an objection to the s 30(1) Decision and, for that reason, is an objection to a decision of the sort identified in Item 9 of the table to s 80(1) of the Registration and Collection Act. PARTIES’ SUBMISSIONS The submissions Mr Bishop made on behalf of the Registrar at the hearing on 5 March 2021 appeared to assume that by his letter to the Registrar dated 24 February 2021 the applicant challenges the s 30(1) Decision and the Child Support Decision; and the applicant does so on the ground that the Termination Agreement bars the Child Support Claimant from making any application “for administrative assessment of child support” under the Assessment Act. Mr Bishop submitted, however, that the applicant has no reasonable prospects of persuading the Registrar or any court having jurisdiction under the Registration and Collection Act that the Termination Agreement, assuming it has been executed in the form of the draft that is in evidence, bars the Child Support Claimant from applying for administrative assessment of child support under the Assessment Act; and that is because the only agreements in relation to the assessment and payment of child support that can have legal effect are those that are made in accordance with Part 6 of the Assessment Act. Mr Bishop submitted the Termination Agreement is not an agreement that has been made by reference to Part 6 of the Assessment Act. In his written submissions filed on 9 March 2021 the applicant submits the Termination Agreement is evidence that the child in relation to which the Child Support Decision was made has been adopted; and, for that reason, a “terminating event” within the meaning of s 4 of the Registration and Collection Act. The applicant also submits that the Termination Agreement, assuming it was made in the terms of the draft that is in evidence, is binding under s 47 of the NSW PR Act. The applicant has offered to continue to meet the liabilities the Registrar has assessed on the basis that the Registrar will not release the money he pays until the Registrar determines his objections. Given that offer, the applicant submits the balance of convenience favours the continuation of the Stay Order.

Ratio Decidendi

Legal Principle Established

In these reasons for judgment, therefore, I consider whether I should continue the Stay Order. Before I identify and consider the parties’ submissions, it will be necessary to identify the statutory provisions the application for a continuation of the Stay Order engages, and the facts out of which the application for a stay under s 111C of the Registration and Collection Act arise. ASSESSMENT ACT AND REGISTRATION AND COLLECTION ACT The starting point is the Assessment Act, which provides for the administrative assessment of financial support a parent must provide for his or her child or children. I begin with s 23 of the Assessment Act. It provides that an application “for administrative assessment of child support is properly made” only if: the application is made in relation to a child in relation to whom, under s 24 of the Assessment Act, such applications can be made; any one of s 24, s 25, and s 25A applies; and the application complies with the formal requirements provided for by s 27 of the Assessment Act. Relevant to these reasons for judgment is s 25 of the Assessment Act, which covers the circumstances in which a “parent” of a child may apply for an administrative assessment of child support for a child. Section 30 of the Assessment Act requires the Registrar to consider whether the Registrar is satisfied an application for administrative assessment of child support for a child has been properly made. If satisfied, the Registrar must accept the application; if not satisfied, the Registrar may refuse to accept the application. Sub-section 29(2) of the Assessment Act identifies the matters of which the Registrar must be satisfied before the Registrar can be satisfied that a person who makes an application under s 25 is the parent of the child in relation to whom the application for administrative assessment of child support is made. If the Registrar does not accept an application, the Registrar must immediately notify the applicant in writing;[3] and if the Registrar does not accept the application because the Registrar is not satisfied that the person who was to be assessed for the costs of the child is a parent, the Registrar must include in the notice a statement to the effect that the Registrar is not satisfied under s 29 of the Assessment Act that the person is a parent of the child, and a statement to the effect that an application may be made to a court having jurisdiction under Assessment Act for a declaration under s 106A of that Act that the person should be assessed “in respect of the costs of a child because the person is a parent of the child”.[4] If, on the other hand, the Registrar accepts the application for administrative assessment of child support for a child, the Registrar must notify the applicant and any parent who is to be assessed for the costs of the child.[5] The notice must be accompanied by a statement to the effect that an application may be made to a court having jurisdiction under the Assessment Act for a declaration under s 107 of that Act that a person should not be assessed in respect of the costs of the child because the person is not the parent of the child.[6] [3] Sub-section 33(1) of the Assessment Act[4] Sub-section 33(2), Assessment Act[5] Sub-section 34(1), Assessment Act[6] Sub-section 34(2), Assessment Act