Garnaut v Child Support Registrar
[2004] FCA 1100
•25 AUGUST 2004
FEDERAL COURT OF AUSTRALIA
Garnaut v Child Support Registrar [2004] FCA 1100
ADMINISTRATIVE LAW – child support – application for order of review of the decision of a delegate of the respondent to disallow an objection – Part 6B of the Child Support (Assessment) Act 1989 (Cth) – limitations of judicial review – change of assessment application – plethora of material – whether delegate of respondent conducted full merits review as required – consequence of decision not being made within sixty days of objection being lodged – whether relevant considerations not taken into account – whether reconsideration by same delegate is a breach of natural justice – whether negligence or breach of statutory duty claim part of same matter – whether arguable case
Administrative Decisions (Judicial Review) Act 1977 (Cth) Schedule 1
Child Support (Assessment) Act 1989 (Cth) ss 65, 98B, 98C(2), 98Z, 98ZA, 98ZB, 98ZC, 98ZD, 98ZE, 98ZH, 98X, 117(2)Wentworth v Rogers (No 5) (1986) 6 NSWLR 536 referred to
Waterford v Commonwealth of Australia (1986-1987) 163 CLR 54 referred to
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 referred toPATRICIA ANNE GARNAUT v CATHERINE ARGALL, CHILD SUPPORT REGISTRAR
No Q 107 of 2003
SPENDER J
BRISBANE
25 AUGUST 2004
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 107 OF 2003
BETWEEN:
PATRICIA ANNE GARNAUT
APPLICANTAND:
CATHERINE ARGALL, CHILD SUPPORT REGISTRAR
RESPONDENTJUDGE:
SPENDER J
DATE OF ORDER:
25 AUGUST 2004
WHERE MADE:
BRISBANE
THE COURT ORDERS THAT:
1.The application for an order of review be dismissed.
THE COURT DIRECTS THAT:
1.The respondent file and serve any submission with respect to costs within seven days.
2.The applicant file and serve any submissions with respect to costs within fourteen days.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
Q 107 OF 2003
BETWEEN:
PATRICIA ANNE GARNAUT
APPLICANTAND:
CATHERINE ARGALL, CHILD SUPPORT REGISTRAR
RESPONDENT
JUDGE:
SPENDER J
DATE:
25 AUGUST 2004
PLACE:
BRISBANE
REASONS FOR JUDGMENT
On 22 July 2003, the applicant (“Ms Garnaut”) filed an application for an order of review. The relief sought appears to be judicial review pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”), although this is nowhere expressly stated. The decision which she seeks to have reviewed is a decision of Christopher Scott, a delegate of the Child Support Registrar, dated 20 June 2003. In that decision, Mr Scott disallowed an objection by the applicant to a decision made on 10 April 2002 by Ms Lisa O’Neill relating to a change of assessment application lodged pursuant to the Child Support (Assessment) Act 1989 (Cth) (“the Assessment Act”). In the decision of 20 June 2003, Mr Scott also disallowed an objection by Mr Graham Boyd to the change of assessment decision of 10 April 2002.
Mr Scott had previously made a decision, on 24 October 2002, disallowing the objections of Ms Garnaut and Mr Boyd to the change of assessment decision of 10 April 2002.
On 19 November 2002, Ms Garnaut lodged an application to the Federal Court for a review of the decision of 24 October 2002. Dowsett J on 6 December 2002, at the first directions hearing of Ms Garnaut’s application of 19 November 2002 to the Federal Court, ordered that the objection decision be set aside and the matter be remitted to the Child Support Agency (“CSA’) for further consideration in accordance with law, the basis of those orders being the concern that the decision made on 24 October 2002 had been in accordance with the then policy of the CSA in relation to change of assessment decisions, and did not involve a full merits review.
The previous policy by the CSA on change of assessment decisions was that those decisions were reviewed by taking into account the information before the original decision-maker, and considering whether that decision-maker had made a reasonable decision. The decision of the Federal Court gave effect to the view of child support legislation that change of assessment decisions required a full merits review, an approach that the CSA then followed.
Mr Scott, in the decision the subject of the present application, said:
‘The original decision has therefore been reconsidered in accordance with both the direction of the Federal Court and the revised CSA policy. The parts of the original decision that have been amended are highlighted in italics. Some parts of the original decision have also been removed. Both parents were given the opportunity to provide a further response to the issues raised in the other parent’s objection. Both parents provided a further response.’
Mr Scott’s amended decision was:
‘Mr Graham Boyd’s objection is disallowed.’
And:
‘Ms Patricia Garnaut’s objection is disallowed.’
This application is then an application seeking judicial review of the decision rejecting Ms Garnaut’s objection.
Mr Boyd has not sought any review of the decision to disallow his objection.
At the Court’s direction, Mr Boyd was informed of Ms Garnaut’s application for an order of review in respect of the decision on objection of 20 June 2003, but has chosen not to be involved in this application.
In these proceedings Ms Garnaut has appeared on her own behalf. It is clear that not only the originating proceedings but the documents in support of the application for an order of review have been prepared without the benefit of legal assistance. In Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 Kirby P (as he then was) said at 536:
‘... the appellant being a litigant now appearing in person, care must be taken to ensure that this significant disadvantage does not deprive her of the opportunity to have her claim, if any, determined according to law. Persons unfamiliar with the rules of pleading and the technicalities which surround the drafting of a statement of claim in adequate and permissible legal form are inevitably, if unrepresented, at a disadvantage. …’
Recognising this disadvantage, the Court nonetheless has an obligation to deal with the application according to law. In particular, the Court has to recognise the limitations upon judicial review of decisions of an administrative character made under an enactment pursuant to the ADJR Act.
In particular, it is important to recognise that the function of the Court is only to decide whether or not the decision was lawful, not whether it was right. This has an important corollary which has application in the present case that, in relation to applications under the ADJR Act, the Court is in most cases limited to the material which was or which ought to have been before the decision-maker. In other words there is generally no point, having regard to the function of the Court on an application under the ADJR Act in putting on an affidavit directed to putting into evidence, facts or factual assertions which were not before the decision-maker.
In this case, there was a very large body of material that was put before the decision-maker, Mr Scott, in connection with the decision made by him on 20 June 2003 to disallow the objection of Ms Garnaut. The complaints of Ms Garnaut, being complaints which allege errors of law, have to be considered against that volume of material.
The applicant’s complaints about the correctness of factual findings, or the weighting given to factual matters by the decision-maker cannot be the subject of judicial review under the ADJR Act. In Waterford v Commonwealth of Australia (1986-1987) 163 CLR 54 Brennan J, as he was then, said at 77:
‘There is no error of law simply in making a wrong finding of fact.’
However, Ms Garnaut has filed a large volume of affidavit material subsequent to the decision of the decision-maker on 20 June 2003, including an affidavit filed 22 July 2003, an affidavit filed 10 February 2004, an affidavit filed 8 March 2004, an affidavit of 22 March 2004, an affidavit of 30 April 2004, and an affidavit filed 17 May 2004. Objection was taken by the respondent to much of the material in those affidavits in a document entitled “List of Objections to Material Sought to be Read by the Applicant” filed on 19 May 2004. The bases of the objections were that most of the affidavits and exhibits are not relevant to the matter before the Court, involve comment and submission, and were not before the decision-maker.
In my view the objections are well taken, and I have considered the application for an order of review against the material that was before the decision-maker. I have considered carefully whether any error of law, either as alleged in the application for an order of review or otherwise, appears to taint the decision on 20 June 2003 to disallow Ms Garnaut’s objection.
The basis on which Ms Garnaut filed that extensive affidavit material subsequent to the decision of 20 June 2003 is contained in pars 6 and 7 of her written submissions.
‘6.I submit that I believe, all my sworn evidence filed since Christopher John Scott made his second Notice of Decision dated 20 June 2003, was necessary to be filed via affidavits, to ensure that the Court had actual current knowledge of my continuing similar circumstances and knowledge of the ill-treatment of Simon, Cameron, Timothy and I, by the Respondent, for failing to compel Graham Boyd to pay my entitlements, in accordance with the Orders and the Judgment of the Honourable Justice Warnick or her own Assessments.
7.I believe it is warranted to continue to file examples of current evidence of the Simon, Cameron, Timothy and my continuing similar financial circumstances, to highlight to the Court and to the Respondent the reason why the Honourable Justice Warnick expressly stipulated that Graham Boyd pay a higher level of Child Support in 1995.’
The grounds of Ms Garnaut’s application for an order of review, as best they might be understood, appear from her application filed 22 July 2003 as follows:
‘Application to review the decision of the Respondent, Catherine Argall Child Support Registrar, for:
(a)having provided the Applicant in the Child Support Case Number 189155 (GARNAUT/BOYD) with a NOTICE OF DECISION ON OBJECTION under Section 98 of the CHILD SUPPORT (ASSESSMENT) ACT 1989 on the 20 June 2003, that the Applicant believes is unfair and unreasonable, because:
1.there has been a denial of natural justice; and
2.there has been an abuse of process; and
3.relevant considerations were not taken into account when exercising discretionary power
4.it is based on incorrect and unsubstantiated information; and
5.it harms, prejudicially affects and causes undue hardship to the Applicant; and
(b)being unfair and unreasonable for failing to provide the Applicant with a NOTICE OF DECISION ON OBJECTION as Ordered by the Honourable Justice Dowsett in Court Order No Q178 of 2002, within the required sixty days as required according to the law; and
(c)being unfair and unreasonable by admitting received the Applicant’s Notice of Objection dated 8 April 2003, on 9 April 2003, and admitting that the Notice of Decision on Objection was not made until 20 June 2003; and
(d)being unfair and unreasonable for continuing to act beyond her jurisdiction and denying the Applicant natural justice by not following procedures that were required by law to be observed in relation to the making of a Decision, because the Decision:
1.involved an error of law; and
2.was not authorised by the enactment under which it was made; and
3.was unfair, unreasonable and biased in favour of Graham Boyd; and
4.relevant considerations were not taken into account when exercising discretionary power; and
5.harms, prejudicially affects and causes undue hardship to the Applicant.
(e)being unfair and unreasonable for admitting that the Orders and Findings of the Honourable Justice Warnick have not been taken into consideration in the making of the Notice of Decision on Objection dated 20 June 2003, even though:
1.the Respondent or Graham Boyd have never appealed the Honourable Justice Warnick’s Orders and Findings in a court of competent jurisdiction; and
2.the Respondent knows that the Honourable Justice Warnick had the privilege of cross-examining Graham Boyd, his mother Joyce Boyd and their Accountant Dulcie Feige under oath, and making an order that the Child Support Registrar at that time collect cumulative arrears debt of $17933.94, my entitlement, from Graham Boyd and pay a higher level of child support; and
3.the Respondent admits that the Honourable Justice Warnick’s findings and orders have never been entered in the Child Support Register or have ever been taken into full consideration when making every subsequent Assessment; and
(f)being unfair and unreasonable because the Respondent knew that the Applicant was ordered a higher-level of Child Support Entitlements from Graham Boyd and the Applicant continues to uphold her commitment to her children and to the Findings expected by the Honourable Justice Warnick, because the Applicant:
1.has continued to involve her children in extra-curricular activities; and
2.maintained MBF Membership to ensure she could meet the costs of expected extraordinary expenses of orthodontist work, and also podiatry, dental, physiotherapy and hospital expenses; and
3.has continued to educate her children at the Holy Family Primary School at Indooroopilly, St Joseph’s Secondary College, Gregory Terrace, Brisbane as expected by the Honourable Justice Warnick; and
yet, the Respondent continues to breach her statutory duty to the Applicant, by failing in her duty of care obligation to the Honourable Justice Warnick’s specific findings entrusted to the Child Support Registrar in 1995, to save disputation in the future.’
In that application, Ms Garnaut sets out over fourteen pages details of why she claims to be “aggrieved” by the decision of Mr Scott disallowing her objection. The applicant’s description in the first paragraph of that lengthy dissertation is sufficient to confer standing to bring this application:
‘The inaction, disinterest, unwarranted delays, unfairness of the decision-making procedure; and failure by, the Respondent, Sheila Bird and the Office of the Assistant General Manager of Child Support, the Honourable John Howard and the Office of the Prime Minister of Australia, and by the Honourable Larry Anthony, the Minister for Children and Youth Affairs, to act according to the law and exercise procedural fairness, is unwarranted, and continues to threaten the well-being of the Applicant and continues to deny the Applicant natural justice, cause her harm, a sense of helplessness, financial deprivement, undue hardship and embarrassment;…’
The grounds of the application by Ms Garnaut are:
‘1.that the Respondent is in contempt of the Court Orders of the Honourable Justice Dowsett dated 6 December 2002, for breaching the rules of natural justice, showing lack of procedural fairness, showing lack of jurisdiction to make the decision dated 20 June 2003, not having a decision made that was procedurally just to both parties, and making a decision that was otherwise contrary to law; and
2.that the Applicant is a truthful person, and could be trusted with the findings of the Honourable Justice Warnick, and always submitted the truth, in all documents submitted to prove her claims to the Respondent; and
3.that Graham Boyd, has admitted over and over, and the Applicant has shown over and over in his own paperwork, that he can not be trusted to tell the truth, not only to the Respondent, but also to Judges; and
4.that the Respondent has denied the Applicant natural justice because she made an improper exercise of power where the decision purports to be made in pursuance of a power conferred by an enactment, whether or not the error of law appears on the face of the record of the decision.
5.the non-authorisation of the decision by the enactment in pursuance of which it was purported to be made
6.that the Respondent continually condoned the actions of Graham Boyd to intentionally deceive the Applicant for the purpose of obtaining a financial advantage over her; and
7.the respondent had sufficient evidence and other material to justify making a decision to act according to the express wishes and findings of the Honourable Justice Warnick so as not to disadvantage the Applicant financially because she had been granted full custody of the three children; and
8.that the Honourable Justice Dowsett asked the Applicant on 6 December 2002 if she wanted a Merit Review done in the Family Court, and the Applicant declined and showed evidence to Judge Dowsett of her reasons for a Merit Review not being required in these circumstances, because the Honourable Justice Warnick had already made Judgment on reportable and non-reportable fringe benefits, extra circular activities and a higher level of Child Support to give the Applicant suitable entitlements to rare her three children, and Graham Boyd or the Respondent have not appealed his Judgment; and
9.that the Applicant was denied natural justice because the Respondent failed in her duty of care obligations, to ensure that the orders made by the Honourable Justice Dowsett for her to set aside the Decision dated 24 October 2002 happened if Graham Boyd did not apply to discharge this order on or before 20 December 2002.
10.that here has been an abuse of the process in the making of the Decision dated 20 June 2003, even though the Honourable Justice Dowsett made orders and remitted the matter to the Respondent for further consideration in accordance with the law; and
11.that there has been an abuse of the process in the making of the Decision dated 20 June 2003, even though the Honourable Justice Dowsett made orders and remitted the matter to the Respondent for further consideration in accordance with the law, the Respondent went ahead and did an unwarranted and unlawful Merit Review, instead of making a new Decision according to the law; and
12.that the Decision dated 20 June 2003 is based on incorrect and unsubstantiated information whereby the Respondent failed in her duty of care obligation to the Applicant to give adequate consideration to the information supplied from the Applicant regarding Graham Boyd’s so-called borrowed vehicle; and
13.that the Respondent failed in her duty of care obligation to use her discretionary powers to assume that Graham Boyd’s financial position has the same continuing similar circumstances as the state of affairs known to the Honourable Justice Warnick on 27 April 1995; and
14.that the Respondent failed in her duty of care obligation to exercise her power to direct Graham Boyd to answer particular questions and to have him volunteer his true financial position and the truth of certain facts that are inconsistent with the Applicant’s legitimate claims; and
15.that the Respondent failed in her duty of care obligation to use her discretionary powers and request further and better particulars from Graham Boyd regarding his so-called borrowed motor vehicle and obligation to disclose his true financial position, and because the Respondent did not do so, she failed to make known to the Decision maker, matters likely to affect the decision making of the decision maker who would be relying on the alleged knowledge or good character of Graham Boyd; and
16.that the Respondent failed in her duty of care responsibilities to the Applicant, and to act according to the law, and make a decision in the required 60 days, and caused further harm, and financial losses that prejudicially affected the Applicant; and
17.that procedures that were required by law to be observed in relation to the making of the Notice of Decision on Objection dated 24 October 2002 and 20 June 2003, were not observed, because the Applicant had not been served a copy of Graham Boyd’s Objection to the Notice of Decision dated 10 April 2002, and the Respondent continued to bully the Applicant into making two lengthy Notice of Objections dated 20 May 2002 and 20 January 2003, before finally being told by the Prime Minister of Australia to hand over the Objections as required by law; and
18.that despite the fact that a breach of the rules of natural justice happened in the making of the Notice of Decision on Objection dated 24 October 2002, because the Honourable Justice Dowsett set aside the decision and remitted to the Respondent to make a new Decision, having further consideration in accordance with the law, yet the Respondent had still not acted according to the law as at 16 June 2003 because she failed to make a decision until 20 June 2003; and
19.that despite the fact that the Applicant filed an Application for an Order of Review, and won, and the Respondent was ordered to pay the Applicant’s costs of those proceedings fixed at $640, the Respondent continues to show a lack of procedural fairness, and should again be order to pay the fixed sum of $1000.00 for the lengthy compilation of further documents attached to this second Application for an Order of Review; and
20.that despite the fact that the Applicant was extremely upset and in a state of despair at the time the Court proceedings and requested, in writing to the Respondent, that a decision be made within 28 days because she was being caused harm, financial deprivation, stress, embarrassment because was being evicted from her home of over six years and had no means of paying a new bond or relocation expenses, the Respondent still chose to ignore her plea for assistance and to be granted special consideration to fast-track a Decision; and
21.that despite the fact that Graham Boyd did not make an Application to have the Court Orders dated 6 December 2002 discharged, the Respondent made new Assessments, having absolutely no regard whatsoever to the fact that the Honourable Justice Dowsett had set aside the Decision dated 24 October 2002, when it was in the Respondent’s capacity as Registrar of Child Support to make suitable changes in any new Assessments, according to the law, and to commence an investigation into Graham Boyd’s true Discarded Income Amount and Child Support Income Amount, the Applicant’s entitlement; and
22.the Respondent has continued to ignore that the Honourable Judge Warnick made it clear in his Judgment that his Orders and Findings were intended to reduce disputation in the future. Graham Boyd had the opportunity to discharge and appeal all Orders made, and the Respondent knows that by Graham Boyd failing to do so, he has now admitted the facts contained in the Applicant’s Application for an Order of Review dated 19 November 2002 and the Orders dated 27 April 1995 and 6 December 2002; and
23.that despite the fact that the Respondent’s refusal to make a Notice of Decision on Objection within sixty days, was otherwise contrary to law, and denied the Applicant natural justice, by the Respondent failing to notify the Applicant of her refusal to make a Decision within sixty days, is not only contrary to natural justice, it too is also contrary to law, especially considering that the Respondent continues circulates a flyer regarding time limits when making Decisions; and
24.that the Notice of Decision on Objection dated 20 June 2003, was not authorised by the enactment under which it was purported to be made because the Respondent did not complete the process within the statutory must do time period of 60 days, and made no attempt to complete the process until the 20 June 2003, that was over 12 days outside the must do requirement of statute and regulations; and
25.that the Notice of Decision on Objection dated 20 June 2003, involved an error of law as the Respondent has continued to ignore court orders and judgment that have never been appealed by Graham Boyd considering that the Honourable Judge Warnick made it clear in his Judgment that his Orders and Findings were intended to reduce disputation in the future; and
26.that the Notice of Decision on Objection dated 20 June 2003, was otherwise contrary to law, and denied the Applicant natural justice and by making this Decision that is contrary to natural justice, it is also contrary to law.’
What Ms Garnaut claims (as distinct from what are said to be the unfair and unreasonable aspects of the decision of 20 June 2003, and the grounds of her application for review which have been set out above) includes:
‘1.that there must be equality of the status of all of Graham Boyd’s children and that they be given the same rights, obligations and family provision, and that the Applicant be paid, and back paid the higher level of Child Support ordered by the Honourable Justice Warnick, to right the wrong doings to the Applicant and her children; and
…
(4)an indefensible prima facie case does exist to allow the Respondent to exercise her discretion as provided for within Statutes, for an out-of-court settlement to the Applicant, for damages for non-performance and bullying by the Respondent, and damages to the Applicant for loss of bargain, loss of chance, loss of earning capacity, harm, stress and loss of enjoyment; and
…
(13)that the Respondent must accept the Findings of the Honourable Justice Warnick dated 27 April 1995, that have been accepted in part by Review Officers Reithmuller and Ryan Senior Case Officer O’Neill and Authorised Officer King, and Findings that are consented to by Graham Boyd, as he has never appealed them; and
(14)that the Respondent must issue new Assessments dating back to 1 July 1995, and if necessary, the Respondent seek leave of the Court to do so, if it is found that the Respondent does not have jurisdiction to do so; and
…
(19)that all decisions, agreement and assessments must be set aside because the applicant considers that the case has been wrongly decided, and not in accordance with the specific wishes of the Honourable Justice Warnick and that a judgment be made to instruct the Respondent to create a new arrears amount, Debt to the Commonwealth, and allow Graham Boyd 28 days to effect settlement; and
(20)that the Respondent was in contempt of the Court Order dated 6 December 2002 by failing to make a Decision within sixty days, as required by law and natural justice, and because she condoned a merits review to be done by the same decision-maker; …’
Before turning to consider in detail the history of the matter and the grounds of Ms Garnaut’s application for an order of review of the decision of 20 June 2003, it is convenient to note at this stage part of the submissions that Ms Garnaut made in connection with that decision.
In a five-page letter dated Sunday 11 May 2003 addressed to the Assistant General Manager Child Support, Department of Family and Community Services in Canberra, and to the Registrar of Child Support in Brisbane, Ms Garnaut claimed that ‘the decision makers have shown bias to Graham Boyd’, Ms Garnaut indicated that ‘if I find that [the new decision] has not been made according to the Findings of the Honourable Justice Warnick and according to law, … I put you on notice, that firstly I will have the matter Judicially Reviewed.’ The letter canvasses a number of factual matters in great detail and concludes:
‘16.Even though the administrative errors of the CSA for the period 1991 to 1995, were dealt with by the Honourable Justice Warnick, why do you Mrs Argall and other Child Support Registrars since that date refuse to accept this Judgement? Why? This is a denial of natural justice and further grounds for a Judicial Review if the new Decision is not made according to the Judgement dated 27 April 1995 and according to the law.
17.Trust me, I will right the wrong doings that have continually denied Simon, Cameron, Timothy and I natural justice since 1 July 1995 to the present, because I have always had legitimate expectations to be treated fairly and according to the rule of law and the findings of a Judge. I require a response to this letter from both of you, paragraph by paragraph, and within seven days from the date of this letter, and an undertaking that a full investigation of Graham Boyd's true income is made since 1 July 1995, or at least since 1 July 1999 to present, because that should be within your jurisdiction to do so.’
As a postscript to that letter of 11 May 2003, the following appears:
‘Copy forwarded and faxed to:
The Prime Minister of Australia, The Hon John Howard, and
The Minister for Children and Youth Affairs, The Hon Larry Anthony MP.I require both your urgent attention to ensure that relevant considerations are taken into account when the new Decision Maker, makes a new Decision, and a response from you both, forwarded to me within seven days from the date of this letter.
PATRICIA GARNAUT
Mother’On Tuesday 3 June 2003 a further letter, of eight pages, was addressed to the same persons. That letter concluded:
‘17.I put you all on NOTICE again, that I will right the wrong doings that have continually denied Simon, Cameron, Timothy and I natural justice since 1 July 1995 to the present, because I have always had legitimate expectations to be treated fairly and according to the rule of law and the findings of a Judge. I put you on NOTICE again, that I required a response, paragraph by paragraph, to my letter dated, 11 May 2003, and within seven days from 11 May 2003, and an undertaking that a full investigation of Graham Boyd's true income is made since 1 July 1995, or at least since 1 July 1999 to present, because that should be within your jurisdiction to do so. By defaulting to respond within seven days, paragraph by paragraph, to the contents my letter to you all, dated 11 May 2003, it is now taken that the contents of this paragraph are admitted, and grounds for another Application for an Order of Review and further actions in a court by me.
18.I put you on NOTICE, that I do not consent to the office of the Assistant General Manager refusal to monitor my case. I have continually given constructive notice to the Assistant General Manager of Child Support, Catherine Argall as Child Support Registrar and others, that would make any reasonable person suspicious, but the Prime Minister, the Minister, the Assistant General Manager, the Registrar and others, have consciously refrained from making straightforward inquiries for fear of learning of fraud or breach of trust, by Graham Boyd and others. You all have actual knowledge of this Child Support Case 189155 and it is a fair comment to say that you have all in some respect, interfered with the proper administration of justice and have little or no respect for the court and its judgments, and have continually delayed reaching a correct decision according to the law and the Findings of a Judge, and in a reasonable timeframe. I put you on NOTICE that this is a denial of natural Justice. Furthermore, it is a denial of natural justice for the office of the Assistant General Manager of Child Support to refuse to respond within seven days, paragraph by paragraph, to my reasonable requests in my letter dated 11 May 2003. By defaulting to respond within seven days, paragraph by paragraph, to the contents my letter to you all, dated 11 May 2003, it is now taken that the contents of this paragraph are admitted, and grounds for another Application for an Order of Review and further actions in a court by me.’
The postscript of that letter provided:
‘Copy forwarded and faxed to:
The Prime Minister of Australia, The Hon John Howard, and
The Minister for Children and Youth Affairs, The Hon Larry Anthony MP.I put you on NOTICE that I required both your urgent attention to ensure that relevant considerations are taken into account when the new Decision Maker, makes a new Decision, and a response from you both, forwarded to me within seven days from the date of my letter dated 11 May 2003. By defaulting to respond within seven days, paragraph by paragraph, to the contents my letter to you both, dated 11 May 2003, it is now taken that the contents of my letter to you dated 11 May 2003, are admitted, and grounds for another Application for an Order of Review and further actions in a court by me.
PATRICIA GARNAUT
Mother’The basic factual background and the legislative framework against which the decision the subject of the application for review falls to be decided is as follows.
Ms Garnaut is a payee under the provisions of the Assessment Act. The assessment of child support payable pursuant to the Assessment Act includes a number of matters, including the father’s income, Ms Garnaut’s income, the number of children for whom child support is payable, and any other children for whom the husband is responsible. The decision of Ms O’Neill of 10 April 2002 was in respect of an application by Ms Garnaut for an increase in child support for the period 1 July 1999 to 31 March 2003. The parents, Ms Garnaut and Mr Boyd, have three children: Simon born 26 June 1983, who is no longer an eligible child, Cameron born 13 June 1984 and Timothy born 13 May 1986. Mr Boyd, the father of Simon, Cameron and Timothy, has “re-partnered” and has a son who was included in the assessment as a relevant dependant.
Pursuant to s 65 of the Assessment Act, in assessing child support that is payable, the Registrar is not required to undertake any enquiries or investigations into the matter, and may rely on the information provided by the parties.
Section 98B of the Assessment Act provides that a liable parent or carer may, by written application, because of special circumstances that exist, ask the Registrar to make a determination resulting in a departure from the provisions of the Assessment Act relating to administrative assessment of child support. Such an application is called a departure application or a change of assessment application. The provisions concerning such departure from administrative assessment of child support are to be found in Pt 6A of the Assessment Act.
Section 98C(1) and (2) requires that before an administrative assessment can be changed, the Registrar has to be satisfied of one or more of the grounds for departure set out in s 117(2) of the Assessment Act; that it is just and equitable as regards the child, the liable parent and the carer entitled to child support; and it is otherwise proper to make a particular determination for a change of the administrative assessment.
The grounds for departure set out in s 117(2) are lengthy but include that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced, or that the costs of maintaining the child are significantly affected, or that application in relation to the child of the provisions of the Assessment Act relating to administrative assessment of child support would result in an unjust and an inequitable determination of the level of financial support to be provided by the liable parent for the child.
The fact that special circumstances exist is not sufficient of itself to entitle an applicant to a change in the assessment of child support. It is clear that a determination of the child support payable involves a balancing exercise of the interests of the children, the liable parent, the carer and perhaps other factors as well.
As with an assessment of child support payable the Registrar, on a change of assessment application may, but is not required to, conduct any enquiry or investigation into the matter: s 98H.
Schedule 1 of the ADJR Act provides that a decision on a change of assessment application is not subject to judicial review: Item (s) of Schedule 1 to the ADJR Act exempts from the application of the ADJR Act ‘determinations made by the Child Support Registrar under Part 6A of the Child Support (Assessment) Act 1992.’
Part 6B of the Assessment Act provides, inter alia, for an internal review of a decision on a change of assessment application made pursuant to Pt 6A of the Assessment Act. Section 98Z of the Assessment Act provides that an objection must be lodged within twenty-eight days after service of notice of the change of assessment decision.
On such internal review, the person objecting to a refusal to make a departure determination under Pt 6A is required to state fully and in detail the grounds of the objection: 98ZA of the Assessment Act. The Registrar must serve a copy of the grounds of objection on the other party: 98ZB(1). Because issues of protected information can arise, the Registrar says that it is not uncommon for the respondent to such a change of assessment application to summarise an objection rather than provide the actual objection document. That occurred in the present case and, the Registrar says, has been ‘a source of aggravation for the applicant’.
By s 98ZB(2) of the Assessment Act, the other party may lodge a notice in opposition to, or in support of the objection. The Registrar is required by s 98ZC(1) of the Assessment Act to consider the objection, any notice in opposition to it, and either disallow the objection or allow it in full or in part. Section 98ZC(1) of the Assessment Act says that the Registrar must either disallow the objection or allow it in whole or in part within sixty days after the objection was lodged. (Emphasis added.)
If a person wishing to object to a refusal decision does not lodge an application within the 28-day period after service of the refusal decision, s 98ZD of the Assessment Act provides that the person may ask the Registrar to consider the objection in spite of the ending of the period. The provision as to deemed refusal in s 98ZE(2) applies, in my view, only to an application under s 98ZD.
Section 98ZE of the Assessment Act provides, in part:
‘(1)If a person applies to the Registrar under section 98ZD in relation to an objection, the Registrar must:
(a) consider the application; and
(b)either grant or refuse the application within 60 days after the application was lodged; and
(c)if the Registrar grants the application – deal with the objection under section 98ZC.
(2)If the Registrar does not make a decision on the application within 60 days after the application was lodged, the Registrar is taken to have refused the application at the end of that period.
(3)The Registrar must give written notice of the decision granting or refusing the application to the person who made the application.’
Section 98ZH of the Assessment Act provides that the fact that an objection is pending does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person.
As the material referred to above indicates, a central complaint of Ms Garnaut is that Mr Scott was obliged to give effect to the findings of Warnick J made on 27 April 1995.
Warnick J was concerned with an application by Mr Boyd for departure from certain assessments of child support payable by him pursuant to the Assessment Act. After a two-day hearing on 12 and 13 April 1995, Warnick J gave judgment on 27 April 1995 and gave detailed reasons over some twenty-one pages for his Honour’s conclusion that he was satisfied that a ground for departure existed generally because of the benefits received by the husband. He ordered that the rate of child support payable by the husband, Graham Stephen Boyd, for each of four periods specified by his Honour be in the amounts as specified by his Honour, namely:
‘14.11.91 to 30.6.92 $1,430 per month;
1. 7.92 to 30.6.93 $ 710 per month;
1. 7.93 to 30.6.94 $1,113 per month;
1. 7.94 to 30.6.95 $1,646 per month;and that all previous assessments issued in respect of the above periods be varied accordingly.’
Because of the central complaint of Ms Garnaut that Warnick J in some way intended to set the level of child support for periods after the 30 June 1995, it is necessary to set out his Honour’s reasons in respect of ‘Assessments Beyond June 1995’:
‘While it must be desirable to endeavour to make orders that will prevent future disputes between these parties, there are limited prospects of achieving that in child maintenance cases where so many circumstances are likely to change over the years. I see greater potential for injustice to the parties in attempting to go beyond the current financial year, having regard to the fact that the husband has not had a salary increase for a number of years and there seems no good reason why he might not renegotiate his position. As well, as earlier indicated, I expect the wife will move to become at least more self-sufficient if not in a position to contribute to the support of the children. The position with regard to orthodontic needs of the children may become clearer and up-dated. Some decision may be made about private secondary schooling in the light of the rulings I have made. I do not intend therefore to make orders extending beyond the current financial year, but trust that the findings I have made on many issues will reduce disputation in future.’
On 30 May 1995 the CSA made a new assessment for the period 1 July 1995 to 30 June 1996, the effect of which decision was to reduce child support payable from $1,646.00 to $964.75 per month. On 28 November 1995 Ms Garnaut agreed to a non-Agency payment settling arrears of child support debt owed by Mr Boyd.
On 17 October 1997 Ms Garnaut entered into a child support agreement with Mr Boyd for the period 1 July 1997 to 31 December 2000.
On 4 December 2001 Ms Garnaut applied for a change of assessment in special circumstances. Mr Boyd lodged his response to that application on 16 January 2002, and his response was sent to Ms Garnaut on 30 January 2002. Ms Garnaut replied to Mr Boyd’s response on 6 February 2002, and a delegate of the Registrar, Ms O’Neill made her decision on 10 April 2002. By that decision, amongst other things, Ms O’Neill decided that for the period from 1 January 2002 to 12 June 2002 the annual rate of child support payable by Mr Boyd be increased to $10,562.00, and for the period from 13 June 2002 to 31 December 2003 the annual rate of child support be increased to $7,908.00.
On 27 April 2002 Mr Boyd objected to that decision, and on 20 May 2002 Ms Garnaut objected.
On 13 September 2002 a summary of Mr Boyd’s objection was sent to Ms Garnaut and a summary of Ms Garnaut’s objection was sent to Mr Boyd.
On 24 October 2002 a delegate of the Registrar, Mr Scott, disallowed the objection of Ms Garnaut and the objection of Mr Boyd, summarising his decision:
‘… I am satisfied that the SCO [Senior Case Officer] made a fair and reasonable decision appropriately taking into account all of the information provided by both parents.’
Ms Garnaut then sought the order of review in the Federal Court in respect of the decision of Mr Scott of 24 October 2002. At the directions hearing on 6 December 2002, the Registrar conceded that an error of law had occurred in connection with the 24 October 2002 decision, namely, that the Pt 6B review had been conducted by way of an appeal and not by way of merit review. The concession by the Registrar was made specifically without any concession concerning the other claims by Ms Garnaut of an error of law. The order of the Federal Court on 6 December 2002 was to set aside the decision of 24 October 2002 and to remit the matter to the Registrar to make a decision according to law.
It appears that the CSA considered that it should review both the decision concerning the dismissal of Ms Garnaut’s objection and the decision dismissing Mr Boyd’s objection. On 23 December 2002, CSA wrote to Mr Boyd giving Ms Garnaut’s grounds of objection and giving him twenty-eight days to respond, which he did on 30 December 2002.
On 20 January 2003 Ms Garnaut lodged what was styled the “second objection” to the assessment and her response to Mr Boyd’s objection. On 26 January 2003 she lodged further material with CSA, and again on 10 February 2003 she lodged further material with CSA and requested Mr Boyd’s original letter of objection. On 21 February 2003 she was sent a copy of Mr Boyd’s original objection document and given twenty-eight days to respond. Ms Garnaut then submitted further material on 9 April 2003, 11 May 2003 and 3 June 2003. On each of the latter two occasions Ms Garnaut queried why the decision was taking so long.
On 20 June 2003 a delegate of the Registrar, Mr Scott, disallowed both objections and, in the course of his reasons for his decision dismissing Ms Garnaut’s objection, Mr Scott noted:
‘In her objection, Ms Garnaut states that she has not had the opportunity to peruse all of the information and evidence provided by Mr Boyd and considered by the SCO in the making of her decision. Ms Garnaut believes this to be unfair.
I am unsure as to what information and evidence Ms Garnaut believes she has not had access to. I am satisfied that all relevant information provided by Mr Boyd was made available to Ms Garnaut.’
Mr Scott’s “objection report” indicates that the original decision [the objection decision of 24 October 2002] has been reconsidered as ‘a full merits review’, and his amended decision was relevantly ‘Ms Patricia Garnaut’s objection is disallowed.’
If there be any possible criticism of Mr Scott’s decision as to process, it is that he considered the various aspects considered by the Senior Case Officer (“SCO”) in the earlier decision and considered the evidence in connection with it, and then expressed the view that the SCO ‘has made a correct decision’ (emphasis in original). On merits review it is necessary for the decision-maker to reach what is “the correct or preferable decision”. The reference that the decision of the SCO is a correct decision has the connotation of an unsuccessful appeal from the decision, rather than an independent arrival at the correct or preferable decision on all the material.
However, looking at the reasons for decision generally, Mr Scott repeatedly refers to “my finding” or “my findings” on this matter, and says:
‘I am satisfied … that it is appropriate to increase the child support payable by Mr Boyd …’
I am satisfied that in connection with his decision of 20 June 2003, Mr Scott did what he said he intended, and was obliged to do, namely make a decision on Mr Garnaut’s objection after a full merits review.
Much of the material and submissions by Ms Garnaut are not directed to the establishment of legal error, but to merits review of the decision of 20 June 2003.
From the plethora of material, it seems to me appropriate to isolate what might be regarded as possible legal error from the multitude of complaints made by Ms Garnaut and deal with those matters as so isolated.
The first possible ground of legal error is directed at the fact that the decision was not made within sixty days of the objection being lodged, contrary to the requirements of s 98ZC(1) of the Assessment Act. In my opinion the sixty-day time limit operates from the lodging of the objection. It is not the case that where further material is submitted, that amounts to a fresh objection, so the time recommences to run. Notwithstanding that Ms Garnaut lodged documents dated 8 April 2003, 11 May 2003 and 3 June 2003 in support of her objection, in my opinion the decision was not made within the time period required by s 98ZC(1) of the Assessment Act.
The subsection uses the word “must”, but in my judgment this does not have the effect that a decision not made within the statutory period is invalid or is unauthorised by the Assessment Act. In my judgment, where an internal review on a change of assessment objection decision is not made within the statutory period, the original decision that the objector wants changed remains in force: s 98ZH of the Assessment Act. The consequence of a decision not being made within the statutory time period is, in my opinion, to expose the Registrar to prerogative orders to comply with the statutory obligation to make a decision. In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the High Court said at 381-382:
‘A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals (Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J).’
In my opinion, to interpret s 98ZC(1) as depriving the Registrar of jurisdiction to make a valid decision on a Pt 6B objection would not give effect to harmonious goals of the Assessment Act and, in particular, the original decision that the objector wants changed would remain in force, as indicated above.
In the view I take of the matter, the fact that a decision on the internal review under Pt 6B was not made within the period required by s 98ZC(1), particularly having regard to the bombardment of additional material by Ms Garnaut, does not assist her in having the decision set aside for legal error.
The second possible legal error to be discerned from the plethora of material is that the decision of Warnick J was a relevant consideration that was not taken into account,or that there was some legal obligation on the decision-maker to apply his Honour’s decision beyond 30 June 1995, the end of the period of its stated operation.
In my opinion it is plain that Warnick J did not intend his findings to have a continuing application past the period within which he made a determination and, in particular, did not intend that his findings have application to circumstances as they might exist eight years after his determination. The fundamental error on the part of Ms Garnaut is, it seems to me, that she so regards his Honour’s findings.
It is also plain, in my view, on the face of the reasons for decision the subject of this application, that Warnick J’s reasons for judgment were considered. The decision-maker in his reasons properly expressed his obligations as being to consider the child support properly payable at the time he was making his decision, based upon the parties’ financial circumstances and their obligations at that time. In discharge of this function, Mr Scott did not disregard Warnick J’s decision. In my opinion the decision-maker did not ignore Warnick J’s decision as an irrelevant consideration. No error of law has been demonstrated in respect of the discharge of the decision-maker’s function, and in particular, because Mr Scott did not apply the factual considerations and determinations of Warnick J decided on the circumstances that obtained some eight years earlier.
Concerning the multifarious complaints of a denial of natural justice, it seems to me appropriate to consider only the allegation by Ms Garnaut that the Registrar did not provide her with a copy of Mr Boyd’s response to her notice of objection, which response is dated 17 September 2002, and Mr Boyd’s response of 30 December 2002, which was made subsequent to a communication of the decision of Dowsett J that the matter was remitted to the respondent ‘for further consideration in accordance with the law’ and his Honour’s direction that Mr Boyd be notified of the application to the Federal Court made by Ms Garnaut and the orders made by Dowsett J on 6 December 2002.
The two documents referred to are Mr Boyd’s responses to the applicant’s objection to the decision made by Ms O’Neill on 10 April 2002.
There is no requirement under the Assessment Act which requires the Registrar to provide a copy of a response to an objection to a decision to the person making the objection. The procedure laid down in the Assessment Act provides that a person may lodge with the Registrar an objection in writing to, inter alia, a decision of the Registrar to make or refuse to make a departure determination under Pt 6A: s 98X of the Assessment Act. By s 98ZA the objection must state fully and in detail the grounds of objection relied on. Section 98ZB (1) then requires the Registrar to serve a copy on the grounds of objection:
‘… (b) if the person objecting is a carer entitled to child support in relation to an administrative assessment – on the liable parent in relation to the administrative assessment.’
By s 98ZB(2):
‘A person served with a copy of the grounds of objection may lodge with the Registrar a notice in opposition to, or in support of, the objection.’
This notice, by subs (iii) must be in writing and lodged within twenty-eight days after service on the person of the copy of the grounds of objection.
Section 98ZC of the Assessment Act requires the Registrar to consider an objection and any notice of opposition or support lodged under s 98ZB, and then to either disallow the objection or allow it in whole or in part within sixty days after the objection was lodged. The Act does not direct the Registrar to serve a copy of the notice of opposition (or support) on the objector.
The legislation does not require a notice in opposition (or support) to an objection to be forwarded to the objector, so that the objector might respond to that notice in opposition (or support): the procedure under the Act does not require an endless process of response, counter-response, counter-counter response and so on.
In my view there has been no breach of the procedural requirements of the Assessment Act in relation to this complaint of Ms Garnaut, and further, Ms Garnaut has not pointed to anything in these responses by Mr Boyd to her objection that was relevant to the decision under review which required the respondent to depart from the process in Pt 6B set out above.
An allegation of bias in favour of Mr Boyd is alleged, but there is no evidence of bias demonstrated in the material contained in the voluminous affidavits filed by Ms Garnaut. Ms Garnaut does not demonstrate bias in a decision-maker by pointing to circumstances where a decision-maker has weighed competing factors and has made a decision which Ms Garnaut considers should have been more favourable to her rather than to Mr Boyd.
It is necessary to refer to some other matters raised in the application for an order of review.
Ms Garnaut complains that the remission of the matter ‘for further consideration in accordance with the law’ was referred again to Mr Scott, and that this involves a breach of natural justice and constitutes the non-observance of a procedure required by law to be observed that was not observed. It is further contended that this conduct constitutes contempt.
There was no direction by the Federal Court that the further consideration be by somebody other than the person who had conducted the original review. There frequently is utility in the further consideration being conducted by the person who had made the initial consideration of the matter, provided that the further consideration is conducted according to law. This is particularly so, one might think, where the material upon which the issues fall to be considered is extensive, and the history of the various dealings long, as is the case in the present matter.
There is no basis for concluding that the procedure in fact adopted was contrary to what was required to be observed, or that the further consideration by Mr Scott constituted a contempt of the Federal Court.
The further consideration ordered by Dowsett J required merit review. The completion of the objection process as a full merits review does not, in my view, amount to an attempt to pervert the course of justice by preventing the Registrar’s actions from being judicially reviewed.
Ms Garnaut seeks that the Court review all decisions regarding child support from 1 July 1995. In response to this request, it should be pointed out that Pt 6B of the Assessment Act was introduced with effect from 1 July 1998, and that prior to the introduction of the method of internal review, decisions made on a change of assessment application were made pursuant to Pt 6A of the Assessment Act. Such decisions are specifically excluded from review under the ADJR Act.
Further, for the period from 1 July 1997 to 31 December 2000, child support arrangements between the applicant and Mr Boyd were governed by an agreement between them. There were no child support assessments made by the respondent Registrar in that period to be reviewed.
The decisions to which Ms Garnaut refers have not been identified. Since only decisions under Pt 6B of the Assessment Act can be the subject of judicial review, and since the present application seems to be an application about the only relevant assessment, there is nothing in this ground of complaint.
In the course of the extensive claims in the application for review, Ms Garnaut asserts a claim for damages in negligence, allegedly based on a breach of statutory duty or a breach of the respondent Registrar’s duty of care. Any such claim would, on the present application, have to come within the accrued jurisdiction of the Court. In my opinion, such a claim is not part of the “matter” that is properly before the Court, namely Ms Garnaut’s application for an order of review under the ADJR Act in respect of the decision of 20 June 2003. Further, there does not appear to be any evidentiary basis, apart from assertion, for a conclusion that any assessment of child support was wrong. Since it is necessary, in a claim for damages, to establish an entitlement to a higher payment of child support over what was assessed, a necessary ingredient of a viable claim for damages has not been shown to exist.
There is nothing in the material, in my opinion, which would ground any other relief which Ms Garnaut has sought.
So far as the application for an order of review is concerned, doing the best I can on the extensive material I am satisfied that no error of law has been demonstrated by Ms Garnaut in respect of the decision of Mr Scott of 20 June 2003, and the application for an order of review should be dismissed.
I will hear from the parties on the question of costs.
I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender . Associate:
Dated: 25 August 2004
The applicant appeared on her own behalf Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 21 May 2004 Date of Judgment: 25 August 2004
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