Gallagher v Child Support Registrar
[2021] FCCA 462
•12 March 2021
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 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.
IT IS NOTED that publication of this judgment under the pseudonym Gallagher v Child Support Registrar is approved pursuant to s.110X(4)(h) of the Child Support (Registration and Collection) Act 1988 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In the afternoon of 26 February 2021 I made an order ex parte under s 111C of the Child Support (Registration and Collection) Act 1988 (Cth) (Registration and Collection Act) staying up to and including 5 March 2021 the collection of child support assessed under the Child Support (Assessment) Act 1989 (Cth) (Assessment Act) (Stay Order).[1] I made the Stay Order in response to an initiating application the applicant filed against “The Registrar Child Support Agency”. That is intended to be a reference to the Child Support Registrar (Registrar), an office established by s 10 of the Registration and Collection Act. In addition to making the Stay Order, I ordered that by 1:00 pm on 1 March 2021 the applicant serve on the Registrar the initiating application and affidavits on which I relied in making the Stay Order, I listed the proceeding at 9:30 am on 5 March 2021 for hearing an application for the continuation of the Stay Order, and reserved to the Registrar liberty to apply on such notice as the circumstances warranted to vary or discharge the Stay Order.
[1] I made these orders in the exercise of jurisdiction conferred on this Court by s 104(1) of the Registration and Collection Act.
The applicant served on the Registrar the initiating application and affidavits on the basis of which I made the Stay Order, as well as a sealed copy of the orders I made on 26 February 2021, including the Stay Order. The Registrar did not apply to discharge or vary the Stay Order. The proceeding, therefore, came before me on 5 March 2021. The applicant appeared by his counsel, Mr Loxton, and the Registrar was represented by Mr Bishop. After Mr Bishop indicated the Registrar opposed the continuation of the Stay Order, Mr Loxton said he proposed to apply for a continuation of the Stay Order. I heard the application, and reserved judgment to be delivered at 4:15 pm on 12 March 2021. I made an order permitting the applicant to file and serve written submissions by 5:00 pm on 9 March 2021, and the Registrar to file and serve any written submissions in response by 4:00 pm on 11 March 2021. I also ordered that I would give judgment without further hearing unless either party applied for a further hearing. The parties filed written submissions,[2] but neither party has requested a further hearing.
[2] The applicant provided written submissions on 9 and 11 March 2021, and the Registrar on 11 March 2021
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
If the Registrar has accepted an application for an administrative assessment of child support made by a parent of the child under s 25 of the Assessment Act, and neither parent is a resident of a reciprocating jurisdiction, the Registrar must “as quickly as possible . . . assess both parents in respect of the costs of the child under Part 5 . . . and assess under Part 5 the annual rate of child support payable by a parent for the child for the days of the child support period that starts . . . on the day on which the application is made”.[7] Sub-section 31(2) provides that child support is payable until the day immediately before the day on which a “child support terminating event happens in relation to the child” (among others). That expression is defined in s 12(1) of the Assessment Act to include an event where “the child is adopted”.
[7] Sub-section 31(1), Assessment Act
The amount of child support for which a parent may be assessed is calculated by determining a rate, and then applying that rate to the costs of raising a child. The costs of raising a child at various age ranges are specified in “The Costs of the Children Table”, being a table based on the table contained in Schedule 1 to the Assessment Act that is published by the Secretary every year. The rates are determined by the application of formulas specified in the Act. These differ according to a number of factors, such as whether there is a non-parent carer, or if a parent is not a resident of Australia, or if at least one parent is liable to child support for another child.
The end result of the assessment is the determination by the Registrar of an annual and daily amount of child support for which a parent is liable to pay during a “child support period”.[8] The annual and daily amount must be set out in a notice of assessment the Registrar must issue and provide to the “liable parent” and to the “carer entitled to child support”.[9] The expression “liable parent” is defined to mean “a parent by whom child support is payable for the child under the administrative assessment”;[10] and “carer entitled to child support” is defined to mean “a parent, or non-parent carer, of the child who, under the administrative assessment, is entitled to be paid child support in relation to the child”.[11]
[8] Section 69, Assessment Act
[9] Section 76, Assessment Act
[10] Section 5, Assessment Act
[11] Section 5, Assessment Act
Under s 75(1) of the Assessment Act the Registrar may “at any time, amend any administrative assessment by making such alterations and additions as the Registrar considers necessary to give effect to this Act or the Registration and Collection Act”. Under s 75(4)(c), the Registrar “may amend any administrative assessment for the purpose of . . . giving effect to the happening of a child support terminating event in relation to a child”, among other things. As I have already noted, the expression “child support terminating event in relation to a child” is defined in s 12(1) of the Assessment Act to include an event where “the child is adopted”.
Sub-section 80(1) of the Registration and Collection Act, which is contained in Part VII of that Act, provides that persons identified in the table in s 80(1) may lodge with the Registrar an objection to the decisions identified in the table. Relevant to these reasons is the decision identified in Item 9, namely, a decision “to accept an application for administrative assessment of child support for a child under subsection 30(1) of the Assessment Act”. That, however, must be read with s 80(4) of the Registration and Collection Act, which provides that an objection to a decision of the Registrar to accept an application for administrative assessment of child support under s 30(1) “may not be lodged on the ground that the person is not a parent of the child concerned”. The procedure for lodging objections, and for the Registrar to determine such objections, is regulated by the provisions contained in Part VII of the Registration and Collection Act.
In addition to providing for the method of assessing child support, the Assessment Act also provides for the creation of liabilities for the payment of child support that has been assessed by the Registrar, and their enforcement by action. First, there is s 77 of the Assessment Act, which provides:
(1) This section applies if the Registrar:
(a)assesses the annual rate of child support payable for a child or children in a child support case, for a day in a child support period, by a liable parent to a carer entitled to child support; and
(b)converts the annual rate into a daily rate and specifies both rates in a notice of assessment given under section 76 in relation to the assessment.
(2)Child support is payable for the child or children by the liable parent to the carer entitled to child support for each day in the child support period.
(3)The amount of child support payable for the child or children for the day by the liable parent to the carer entitled to child support is the amount of the daily rate specified in the notice of assessment.
Second, there is s 78 of the Assessment Act, which specifies when an amount of child support payable by a liable parent is due and payable in any calendar month; and that is on the seventh day of the following calendar month or the thirtieth day after the liable parent is given a notice of assessment under s 76 of the Act, whichever is later.
Third, there is s 79 of the Assessment Act which provides:
An amount of child support due and payable by a liable parent to a carer entitled to child support is a debt due and payable by the liable parent to the carer, and may be sued for and recovered in:
(a)a court having jurisdiction for the recovery of debts up to the amount of the child support; or
(b) a court having jurisdiction under this Act.
An alternative to suing for a debt created by s 79 of the Assessment Act is for the carer entitled to child support to apply to the Registrar under s 25(1) of the Registration and Collection Act to register with the Child Support Register the liable parent’s liability to pay child support. Such liability is included in the definition of “registerable maintenance liability” in s 17 of the Registration and Collection Act.[12] The entry of a registerable maintenance liability in the Child Support Register must contain the particulars specified by s 26 of the Registration and Collection Act. These include the amounts payable by the liable parent. The effect of registration is specified by s 30(1) of the Registration and Collection Act:
If a registrable maintenance liability is registered under this Act, amounts payable under the child support assessment . . . under which the liability arises are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register.
[12] Sub-section 17(2) provides that “a liability is a registrable maintenance liability if it arises under a child support assessment”
Subsection 30(3) provides:
If a registrable maintenance liability is registered under this Act, the payee of the liability is not entitled to, and may not enforce payment of, amounts payable under the liability other than by instituting a proceeding under section 113A to recover a debt due in relation to the liability.
Section 113A of the Registration and Collection Act permits the payee of a registrable maintenance liability to sue for the recovery of the debt if the payee gives the Registrar fourteen days’ notice.
The principal consequence of registering a child support assessment is that it may be recovered as a debt by the Commonwealth by means provided for under the Registration and Collection Act. Relevant to this proceeding are the provisions contained in Part IV of the Registration and Collection Act which provides for the deduction by an employer of a registrable maintenance liability from the wage or salary due to the person who is under such liability.
The effect of the Assessment Act and the Registration and Collection Act was outlined by Gleeson CJ in Luton v Lessels:[13]
It may be observed that, although the legislation is enacted in furtherance of a clearly defined public policy, it creates a distinctly personal liability. The natural and moral obligation of a parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt, calculated in accordance with the Assessment Act, owing by a parent to a carer of the child. . . .
The principal objects of the Registration and Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (s 3). Those objects are achieved by a system of registration and enforcement. The scheme is available to a carer who wishes to take advantage of it. Some carers may not. They can rely on private enforcement if they wish. If a liability has arisen under a child support assessment, it may be registered under the Registration and Collection Act (s 17). The effect of registration is that the carer is no longer entitled to enforce payment of the liability and, instead, there is a debt owing by the liable parent to the Commonwealth (s 30). The carer entitled to child support becomes entitled to payment of an amount equivalent to that collected by the Commonwealth from the liable parent or on account of that parent's liability (s 76). The debt owed by the liable parent to the Commonwealth must be paid in the manner prescribed by the Act, and may be collected from certain debtors of the parent. Amounts collected are paid into, and disbursed to carers out of, the Consolidated Revenue Fund. The Commonwealth does not benefit financially.
[13] Luton v Lessels [2002] HCA 13; 210 CLR 333, at 340-341 ([6], [7])
SECTION 111C OF THE REGISTRATION AND COLLECTION ACT
Next, it is necessary to consider s 111C of the Registration and Collection Act, which is as follows:
(1) This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the AAT for an AAT first review; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975:
(a) in the case of a proceeding instituted in a court - apply to that court for an order under this section; or
(b) otherwise - apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4) The court may, by order, vary or revoke an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified—until a decision of the court, the Registrar or the AAT determining the proceeding becomes final.
The 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 10
BACKGROUND
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 2021
Amount 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.
On 24 February 2021 the applicant telephoned the CSA and spoke to an officer of the CSA. The officer informed the applicant of the name of the person who had “opened” the case (Child Support Claimant). The officer said the “case was opened on” 11 December 2008 and marked for “private collection”, but the Child Support Claimant made a new application on 11 December 2020. The applicant told the officer he had not received any notice of the new application. The officer informed the applicant of two telephone numbers at which the CSA attempted to call the applicant, and an address to which correspondence had been sent. The applicant said that one of the two telephone numbers is not his, the applicant had not used the other for two years, and the applicant had not lived at the address to which the CSA had sent letters.
The applicant recognised the name of the Child Support Claimant. The applicant and the Child Support Claimant had been in a relationship and had a child together (the child). The applicant says, and for the purposes of this application I will assume, that in around 2011 the applicant and the Child Support Claimant entered into an agreement (Termination Agreement) purportedly under the Property Relationships Act 1984 (NSW) (NSW PR Act) which recorded that, at the request of the Child Support Claimant, the applicant would have no further contact with the Child Support Claimant or the child, and that the parties agreed, among other things, the applicant would agree to the child’s formal adoption by a person whom the Child Support Claimant intended to marry (referred to in the draft agreement as “the Step Father”, which is how I will refer to that person in these reasons), and to the applicant making a number of payments and providing a number of other benefits to the Child Support Claimant. The Termination Agreement also contained the following clause:
The Mother hereby acknowledges and agrees that she will advise the Child Support Agency that she has by this agreement settled all past and future claims for child maintenance against the Father and she and the Child have no past or future claim for child maintenance, and the Mother hereby promises that in consideration of the monies paid to date she will in the future make no claim for child maintenance against the Father.
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.
In the written submissions filed on 11 March 2021, the Registrar submits that, to the extent the applicant’s objection to the Registrar’s decision is based on the child having been adopted by the Step Father, s 80(4) of the Registration and Collection Act prevents the applicant from objecting to the s 30(1) Decision. The Registrar in any event submits there is no evidence the child has been adopted. The Registrar’s written submissions also proceed on the view that the applicant has objected to the s 30(1) Decision and the Child Support Decision on the ground that the applicant did not receive notice of the Child Support Claimant’s application for administrative assessment of child support in relation to the child. The Registrar accepts the applicant was not given notice; but the Registrar submits the giving of notice is not essential to the Registrar’s deciding the Child Support Claimant had made a proper application for administrative assessment of child support, and is not a precondition to the Registrar’s duty under s 31(1) of the Assessment Act to “assess both parents, or the relevant parent, (as the case requires) in respect in respect of the costs of the child under Part 5”.
SHOULD THE STAY ORDER BE CONTINUED?
The first question is whether there is a “proceeding [that] has been instituted . . . before the Registrar under Part VII” of the Registration and Collection Act within the meaning of s 111C(1)(b) of that Act. I am satisfied there is such a proceeding. As I have already found, by his letter dated 24 February 2021 the applicant seeks to challenge the s 30(1) Decision; and that is a decision in relation to which an objection may be made under s 80(1) of the Registration and Collection Act.
The next question is whether any of the grounds on which the applicant relies in his objection to the s 30(1) Decision raises a serious question that would result in the Registrar making a different decision to the s 30(1) Decision. There is no prospect the Registrar will make a different decision to the extent the applicant relies on the ground that he is not a parent of the child; and that is because s 80(4) of the Registration and Collection Act excludes as a ground for objecting to a decision made under s 30(1) of the Assessment Act that a person is not a parent of the child in relation to which the application for administrative assessment of child support has been made.
There is also no prospect the Registrar will make a different decision to the s 30(1) Decision because of the terms of the Termination Agreement.
(a)There is no evidence, and the applicant has not submitted, that the matters required by s 47 of the NSW PR Act have been satisfied in relation to the Termination Agreement. In particular, there is no evidence that a certificate from a solicitor, as required by s 47(1) of that Act, was furnished to both the applicant and the Child Support Claimant.
(b)Even if the Termination Agreement were signed, and it was signed in circumstances that satisfied s 47(1) of the NSW PR Act, s 45(2) of that Act provides that nothing in a “domestic relationship agreement or termination agreement affects the power of a court to make an order with respect to the right to custody of, maintenance of or access to or otherwise in relation to the children of the parties to the agreement”.
(c)Assuming the applicant and the Child Support Claimant executed the Termination Agreement, and the formalities required by s 47 of the NSW PR Act have been satisfied, the clause on which the applicant relies for claiming the Child Support Claimant is barred from making an application for administrative assessment of child support under the Assessment Act would be unenforceable; and that would be because of what the Full Family Court said in Black & Black (emphasis added):[15]
As discussed by the Full Court in Naughton and Naughton [1983] FamCA 24; (1983) FLC 91-327; (1983) 9 Fam LR 47, the statutes, namely the Matrimonial Causes Act 1959 (Cth) to 1975 and the Family Law Act 1975 (Cth) since that time, gave to parties of a marriage or former marriage certain rights of application in respect of property and maintenance. The parties could not by agreement outside the confines of that legislation contract themselves out of the right to institute such proceedings: (see generally Hyman v Hyman [1929] AC 601; Davies v Davies [1919] HCA 17; (1919) 26 CLR 348; Brooks v Burns Philip Trustee Co Ltd [1969] HCA 4; (1969) ALR 321; Wright and Wright [1978] HCA 4; (1977) FLC 90-221; (1977) 3 Fam LR 11,150; Burgoyne and Burgoyne (1978) FLC 90-467; (1978) 4 Fam LR 204; Candlish and Pratt (1980) FLC 90-819; (1980) 6 Fam LR 75 and the cases therein referred to).
[15] Black & Black [2008] FamCAFC 7, at [41]
Also relevant are the observations Fogarty J made in In the Matter Of: B and J (Artificial Insemination):[16]
However, I should say that it is, in my view, untenable to suggest that an otherwise liable parent may contract out of liability for child support, or that an otherwise entitled parent may waive a “right” to assistance for the support of his or her child.
It is well established that statutory rights granted to individuals which rest upon wider principles of public policy may not be waived. As Dawson J said in Brown v. The Queen [1986] HCA 11; (1986) 160 CLR 171 at 208, a statutory right or benefit may only be waived if it is “a personal or private one and (it) must not rest upon public policy or expediency”. See the long line of authority supporting this proposition, including Great Eastern Railway Co. v. Goldsmid (1884) 9 App. Cas. 927; Wilson v. McIntosh [1894] A.C. 129; Toronto Corporation v. Russell [1908] A.C. 493; Equitable Life Assurance Society of the United States v. Reed [1914] A.C. 587; Davies v. Davies [1919] HCA 17; (1919) 26 C.L.R. 348; and more recently The Commonwealth v. Verwayen (1990) 170 C.L.R. 394, especially per Mason CJ at 405-6.
The financial support of children is a matter of great public interest. The community as a whole would be adversely affected if a person were permitted to waive a "right" to seek support from a child's parent. The enactment itself of the Assessment Act in 1989 and the amendments made to the child support provisions of the Family Law Act in 1987 emphasise the significance of the primary responsibility of parents for the support of their children and were specifically enacted to deal with what were regarded as deficiencies in the previous position. Longstanding authority in Australia and overseas has made it clear that such is the nature of the responsibility in this area that parents may not contract out of that responsibility. In addition, it needs to be emphasised that not only has the community a substantial interest in this area but the right to child support is the right of the child which may not be waived or contracted out by that child's parents, both of whom have the responsibility for that child.
[16] In the Matter Of: B and J (Artificial Insemination) [1996] FamCA 124
What of the applicant’s claim that he was not given notice of the Child Support Claimant’s application for administrative assessment of child support? I am prepared to assume there is a serious question whether the Registrar was required to give the applicant notice before the Registrar made the s 30(1) Decision, and it is open to the applicant to object under s 80(1) of the Registration and Collection Act to the s 30(1) Decision on the ground that the Registrar did not give the applicant notice. But even on these assumptions there is no prospect the applicant would succeed in the Registrar making a different decision to the s 30(1) Decision; and that is because the Registrar’s failure to give notice would not have been material. Had the Registrar given the applicant notice before the Registrar made the s 30(1) Decision, the applicant would have brought to the Registrar’s attention the very matters the applicant has identified in his affidavit of 24 February 2021, and none of these matters could have led the Registrar to make a decision different from the s 30(1) Decision. First, there is no evidence the Step Father has adopted the child. On the contrary, it is likely the Step Father has not adopted the child because, had he done so, the applicant would have given evidence that he signed documents, or participated in some process, by which he signified his consent to the adoption. Second, the applicant would have faced the same difficulties I have already identified in relation to the applicant’s relying on the Termination Agreement as constituting a bar to the Child Support Claimant’s application for administrative assessment of child support in relation to the child.
I am not, therefore, satisfied the applicant’s objection to the s 30(1) Decision raises a serious question that would result in the Registrar making a different decision to the s 30(1) Decision. For that reason, it not necessary, and it would not be useful, to consider issues relating to the balance of convenience.
DISPOSITION
I propose to order that the application for a continuation of the Stay Order be dismissed, and that the proceeding be dismissed. I also propose to order that the applicant pay the Registrar’s costs, although I will reserve to the parties liberty to apply within 14 days for an order varying or discharging the costs order I propose to make.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 12 March 2021
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