Garrison and Downey and Anor
[2019] FCCA 719
•22 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GARRISON & DOWNEY & ANOR | [2019] FCCA 719 |
| Catchwords: CHILD SUPPORT – Application for departure order for period greater than eighteen months – insufficient evidence provided by Applicant – Application in relation to child support dismissed. |
| Legislation: Child Support (Assessment) Act 1989(Cth), ss.111, 111(1), 112, 112(1), 112(4), 112(5), 116, 117, 117(2), 117(2)(c), 118 Child Support (Registration and Collection) Act 1988 (Cth), s.72Q |
| Cases cited: Bauer & Becker [2009] FMCAfam 480 Manchester & Manchester [2011] FMCAfam 1215 Yewen & Child Support Registrar & Anor [2014] FCCA 2399 |
| Applicant: | MR GARRISON |
| First Respondent: | MS DOWNEY |
| Second Respondent: | CHILD SUPPORT REGISTRAR |
| File Number: | BRC 10544 of 2009 |
| Judgment of: | Judge Cassidy |
| Hearing date: | 1 March 2019 |
| Date of Last Submission: | 1 March 2019 |
| Delivered at: | Brisbane |
| Delivered on: | 22 March 2019 |
REPRESENTATION
| For the Applicant: | Self-represented |
| For the First Respondent: | Self-represented |
| Solicitors for the Second Respondent: | Child Support Registrar, Department of Human Services |
ORDERS
THE COURT ORDERS UNTIL FURTHER ORDER:
That the Applicant’s Application in regards to child support, filed 7 September 2018, be dismissed.
That the matter remain adjourned for mention only at 9:30am on 29 March 2019 in the Federal Circuit Court of Australia at Brisbane.
IT IS NOTED that publication of this judgment under the pseudonym Garrison & Downey & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 10544 of 2009
| MR GARRISON |
Applicant
And
| MS DOWNEY |
First Respondent
And
| CHILD SUPPORT REGISTRAR |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The Applicant father seeks leave under sections 111 and 112 of the Child Support (Assessment) Act 1989 (“the Assessment Act”), for the Court to make a departure order for a period greater than eighteen months.
The Applicant sets out in his Initiating Application, filed 7 September 2018, the orders he seeks:
“1. That leave be granted under Section 111 of the Child Support (Assessment) Act 1989 for the court to make an order under Section 118 of the Act for departure from the administrative assessment of child support payable by Mr Garrison to Ms Downey for the children [X] born … 2005 and [Y] born … 2008 (“the Children”) as follows.
2. That for the period from 14 May 2014 to 30 September 2015, the total amount of child support be set equal to the monies already paid for that period, including the value of any non-agency payments credited for that same period, with the effect that no arrears remain payable, no penalties apply, no overpayment is created and the departure prohibition can be lifted.
3. That for the period from the date of this order the annual rate of child support be assessed in the usual way.”
The Applicant, in his Affidavit, at paragraph [10] seeks:
“10. I apply for a stay of collection of child support for the period subject of dispute and lifting of the departure prohibition.”
The First Respondent in her Response, filed 1 November 2018, seeks:
“CHILD SUPPORT 1. That a Departure Prohibition Order not be lifted for Mr Garrison. 2. That the decision of the Child Support Agency be upheld.”
Background
The Child Support Registrar (“the Registrar”), has accurately summarised the background to this matter in the written submissions provided by Ms Smith, the solicitor with carriage of the matter for the Registrar at paragraphs [6]–[13] of the Submissions filed on 22 February 2019:
“6. The Applicant and First Respondent are the separated parents of:
a. [X] (born … 2005 and 13 years of age); and
b. [Y] (born … 2008 and 10 years of age);
7. The case was first registered for collection on 7 June 2011 and has been collected by the Department of Human Services (Department) since 7 January 2013.[1]
8. For the period 1 December 2012 to 5 February 2014 and the period from 1 January 2017 to now, the annual rate of child support is calculated by applying the child support formula.[2]
9. On 6 February 2014, the Applicant applied to the Registrar for a departure determination pursuant to section 98B of the Assessment Act. On 12 May 2014, a delegate of the Registrar made a determination that changes be made to the assessment of child support such that, from 6 February 2014 to 31 March 2016, the Applicant's adjusted taxable income be set at $94,796.[3]
10. On 23 May 2014, the Applicant lodged an Objection to the departure decision made on 6 February 2014. On 7 August 2014, a delegate of the Registrar made a decision to disallow the Objection.[4]
11. On 2 April 2015, the Applicant applied to the Registrar for a new departure determination pursuant to section 98B of the Assessment Act. On 23 June 2015, a delegate of the Registrar made a decision to refuse the application.[5]
12. On 5 August 2015, the Applicant lodged an Extension of Time request and Objection to the departure decision made on 23 June 2015. The Extension of Time was granted and on 9 October 2015 a delegate of the Registrar made a decision to allow the Objection in part. The departure decision made on 23 June 2015 was set aside and the departure decision of 12 May 2014 was set aside from 2 April 2015 and in substitution, for the period from 2 April 2015 to 31 December 2016, the Applicant's adjusted taxable income was set at $35,930.[6]
13. On 10 April 2015, a Departure Prohibition Order (DPO) was placed on the Applicant.”
[1] Affidavit of Ms A 25 January 2019 (Ms A), p21.
[2] Affidavit of Ms A, p5, 15.
[3] Affidavit of Ms A, p4-8.
[4] Affidavit of Ms A, p10-12.
[5] Affidavit of Ms A, p14-19.
[6] Affidavit of Ms A, p21-30.
Application for Leave
The relevant law is set out in s 111(1) of the Assessment Act:
“Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1) A liable parent, or a carer entitled to child support, (the applicant) may apply to court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
...”
And also in s 112 of the Assessment Act:
Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
…
matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) the court may have regard to any other relevant matter.
…”
While the parties appeared to reach an agreement that leave should be granted by consent, I consider the section requires me to exercise a discretion as to whether to grant leave.
In the present case, the period the Applicant seeks leave for the court to make an order under s 118 of the Assessment Act is 14 May 2014 to 30 September 2015. The effect of what the Applicant is seeking, is to obtain leave for the court to make an order for the whole period from 14 May 2014 to 2 April 2015, when his income was set at $94,796. Also for the period from 3 April 2015 to 30 September 2015, when his income was set at $35,930.
The decision of Bauer & Becker [2009] FMCAfam 480 at [21]-[22] provides:
“21. The legislative provisions, which relate to the amendment of any administrative assessment of child support that is more than eighteen months old were inaugurated following the recommendations of the Ministerial Taskforce on Child Support, chaired by Professor Parkinson. The Taskforce was concerned to limit retrospective applications in respect of child support and the government accepted its recommendations in this regard.
22. The Taskforce reported as follows:
“An application for change of assessment may currently be made for a virtually unlimited time. This is highly undesirable, as it may open periods to re-examination which have long past, to the detriment of the other parent who finds past child support obligations being retrospectively reviewed. Particularly where a parent wishes to avoid complying with large outstanding child support debts, a belated application to reduce the assessment may be available, undermining the CSA’s ability to enforce debt. In practice, most decisions are not retrospective. However, the currently open discretion to make an application to vary past periods should generally be limited to the immediately preceding child support period. However, there may be some exceptional circumstances where a parent has a legitimate reason for delaying their application for a change to a past assessment. One such reason is because information has only recently come to light about a payer’s hidden income. In such cases, a process should exist to enable this general limit retrospective applications to be eased. A court is in the best position to consider the past ‘rights’ of the parties, and determine whether making an exception is appropriate. For this reason the Taskforce proposes that an application should be made to a court (in practice this would be the Federal Magistrates Court), to grant leave to apply out of time. This would be similar to the existing process under s44 of the Family Law Act 1975 in relation to property and spousal maintenance applications.”
I accept the submission of the Registrar at paragraph 16:
“16. The intent behind restricting retrospective variations is clear. It is to encourage paying parents to meet their child support responsibilities on time, seek variation to the liability in a timely manner and prevent the frustration of enforcement.”
In Yewen & Child Support Registrar & Anor [2014] FCCA 2399 at [104] Brown J held:
“104. In summary, in the exercise of the discretion to grant or refuse leave under section 112(1), the court should have regard to the following factors:
· Is the court satisfied that the applicant concerned has made a prima facie case to have the relevant child support assessments changed. This is a relevant consideration arising under section 112(5);
· In determining whether the applicant has a prima facie case, the applicant’s evidence on that issue is to be accepted, without cross-examination, unless it is inherently unbelievable or contradictory;
· The court must consider the delay in bringing the application concerned and who is responsible for that delay and why;
· The court must consider the hardship which would be occasioned to each of the parties concerned and balance that hardship;
· The court must consider any other relevant fact or circumstance; and
· In the exercise of its discretion to grant or refuse leave, the court may grant leave despite an inadequate explanation of delay, if other considerations warrant leave being granted nonetheless.”
In the present case the Applicant was involved in two separate departure applications and the Applicant sought an internal review of both decisions. In the first departure application, the Applicant was Ms Downey. The decision on 12 May 2016 provided that from 6 February 2014 to 31 March 2016 the adjusted income of Mr Garrison was set at $94,796.
The decision maker recorded:
“Searches undertaken by the Department confirm Mr Garrison became bankrupt in 2010.
Searches undertaken through the ATO have failed to indicate any new Companies owned by Mr Garrison. Ms Downey stated that it is likely any new business venture of Mr Garrison would be registered in the name of his mother who is also his Accountant.
A search of the internet indicates that Mr Garrison is the contact person for a business in the … industry. The name of the business is similar to his previous business.
Searches were undertaken by the Department and confirm the business is not legally owned by Mr Garrison however information obtained by way of legal notice on third parties discloses that he is employed by that Company.
Further searches of the internet indicate that Mr Garrison is showing on Linkedin.com as a professional in the … industry (Brisbane area). The profile of Mr Garrison shows he has been in this line of business since 2001 to date.
Mr Garrison stated he was working for a Company on a base salary and commission basis. He further advised that he had not lodged taxation returns for many years as he had been overseas or involved in legal proceedings and had not got around to it. He was hopeful these would be lodged in due course.
As no information was provided by Mr Garrison in relation to his income from this business, I intend to set his income based on the average weekly wage payable to a person of Mr Garrison’s age in his line of business. A resource often used by the Department “What Jobs Pay – 2012 – 2013” by Rodney Stinson indicates that the average wage for a professional would be $94 796 gross per annum.”
Mr Garrison objected to that decision and the objection was disallowed. That decision by Kevin Cahill records:
“Neither parent has lodged a tax return for several years.
Mr Garrison has not disclosed details of his business, employment or income. In a phone conversation with the department Mr Garrison declared a small British employment pension of $2 to $3,000. He repeatedly stated that he did not earn $96,000 but did not declare what he was actually earning.
In order to clarify matters notices were served on ATO, Centrelink and other third parties.
It was found that Mr Garrison is employed by a company with a similar name to the one which went into liquidation. Mr Garrison also has an internet profile as being a professional in … industry in Brisbane.
Mr Garrison informed that he is working for commission and a base salary. There is some travel but not all that much. He hoped to get around to lodging his tax returns soon.
There is no other evidence to consider.”
On 2 April 2015 Mr Garrison applied on the basis the child support assessment was unfair because his income was incorrectly assessed. The reason was not established and the decision maker Lindsay Wootten recorded:
“The evidence of each parent and other evidence available to the decision maker.
In a covering letter with his application Mr Garrison stated that he wished to ‘make it clear I did not make anywhere near $94,000 last year or in previous years and this will be backed up by the ATO’. No documentary evidence was provided with the application. During my discussions with Mr Garrison he made many similar statements. However, the problem is that as in the previous COA matter and his Objection he has not provided the necessary evidence to show that this is the case. Despite repeated attempts on my part I was apparently unable to get Mr Garrison to understand the necessity for doing this.
…
I advised Mr Garrison that in the circumstances I would need evidence as to the finances of the company and his current business as a sole trader. In regard to the company I advised that a Profit and Loss and Balance Sheet would be required and that company bank statements would also assist. Mr Garrison verbally resisted this request as he did when I asked for evidence as to the pension that he receives from the UK employer. He argued that he should only need to provide evidence as to his current pay from his business. I tried to explain that when a person has a business whether operating as a company or as a sole trader it is necessary for DHS to consider the finances of the business in determining what is fair for child support purposes. This is standard practice in such circumstances but Mr Garrison continued to argue he should not be required to provide this. In a later conversation he argued that as it was not his company he didn’t have the ability to provide the evidence. However, in circumstances where the evidence was that his mother had set up the company for him to operate his business through this argument cannot be accepted by DHS.”
That decision was made on 23 June 2015.
On 5 August 2015, Mr Garrison objected to that decision and on 9 October 2015, the objection decision provided:
“The decision of Change of Assessment (CoA) Decision Maker (DM) Lindsay Wootten of 23 June 2015 is set aside. CoA DM Dawn Wyatt’s decision of 12 May 2014 is also set aside from 2 April 2015 and replaced with the following:
- For the period 2 April 2015 to 31 December 2016, Mr Garrison’s adjusted taxable income is set at $35,930 per annum.”
I note during this hearing Mr Garrison provided the following evidence:
“Statutory declaration from Ms B dated 29 April 2015, which states I declare that myself and my son’s father have jointly helped to financially support my son Mr Garrison from Feb 2013 till present date to the sum of (approx.) $60,000.
- Bank statements for Mr Garrison for period 10 May 2013 to 11 March 2015.
- Business Profit and Loss for January to June 2015.
- Balance Sheet as of 30 June 2015:
- Business Activity Statement (BAS) for Mr Garrison 3rd and 4th quarter of 2014-15 financial year.
-BAS for [Business] for 2013-14 financial year.”
Mr Garrison also applied to the Administrative Appeals Tribunal on 11 August 2017, seeking an application for an extension of time from an earlier decision refusing an earlier application for extension of time. That application was refused.
It is apparent from the above discussion that the Applicant has sought extensive reviews of the assessment. He is now seeking leave of this court to vary the assessment.
Brown FM in Bauer & Becker (supra), considered the Applicant’s history of taking part in the review and objections process. His Honour held:
“…he has not been denied the opportunity to put his case. In these circumstances, it is my view that there must be something exceptional to justify the court’s revisiting of decisions which were made some time ago.”
I agree with this view.
The Applicant attached a medical report by Dr C from Medical Clinic that reports that the Applicant has had medical issues since 2003. These have been ongoing but they did not prevent the Applicant from seeking extensive reviews of the child support assessment he now seeks leave to vary.
I do not consider the Applicant’s medical history provides evidence of an exceptional circumstance that would justify granting leave.
Prima Facie Case
The Applicant has a child support debt amounting to $18,291.37. The amount relating to the relevant period is $13,148.26. Thus the Applicant has demonstrated a relatively poor commitment to meeting his obligations.
The Applicant has not provided me with sufficient evidence of his financial position during this period other than to tender a document from the Australian Taxation Office evidencing that he did not need to put in a tax return. This evidence alone does not allow me to answer the question about a prima facie case that favours the Applicant.
Hardship
There is clear detriment to the First Respondent, who finds long past delegations to pay child support being reviewed. The hardship is:
a)The loss of potential funds owed to the First Respondent; and
b)The loss of an opportunity for the Registrar to enforce the debt.
The hardship to the Applicant is a requirement for him to pay the debt he owes, in circumstances where he has had numerous attempts to review the assessment administratively.
Conclusion
I am not satisfied for the reasons set out above that I should grant leave to the Applicant to review the assessment for the relevant period.
The Departure Application
If I am not correct in the conclusion I have reached in relation to the leave I will consider the departure application.
The process is accurately described in the Registrar’s submissions at paragraph [35]:
“35. If the Court proceeds to consider whether to make an order under s 118 of the Assessment Act, upon the granting of leave, the application is treated as an application for a departure under s 116. In considering whether to make a departure order the Court must be satisfied of the matters in s 117 of the Assessment Act:
a. Whether one or more of the grounds of departure referred to in s 117(2) of the Assessment Act exist?
b. If so, would it be just and equitable as regards the child, the liable parent and the carer entitled to child support to make a particular departure order; and
c. If so, it would be otherwise proper to make a particular departure order.”
The Applicant I presume is seeking to rely on s 117(2)(c) of the Assessment Act, for the departure order:
“Matters as to which court must be satisfied before making order
Court may make departure order
…
(c) that, in the special circumstances of the case, application in relation to the child of the provisions of this Act relating to administrative assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child:
...
(ia) because of the income, property and financial resources of either parent; or
(ib) because of the earning capacity of either parent; or
…”
The evidence provided by the Applicant is set out at paragraphs [10]–[21] of his Affidavit. The Applicant’s evidence of relevance is at paragraphs [15]–[17] of his Affidavit filed 7 September 2018:
“15. On 6 February 2014 an assessment was issued by the Child Support Registrar for payment of child support by me for [X] and [Y] based on income of $94,796 gross p.a. which was extremely inflated.
16. The ATO has since assessed my earnings for 2014 and 2015 and I am not required to lodge a return. During that period I lived off my British pension and assistance from relatives in Britain.
17. On 23 May 2014 I lodged an objection to the decision on the ground that my earnings had been greatly inflated. It was disallowed by the Child Support Registrar on 7 August 2014.”
This evidence on its own is not sufficient to allow me to make a finding that there are special circumstances to depart from the administrative assessment. The Applicant provides no evidence of property or financial resources. Nor does he provide evidence that demonstrate the assessment would result in an unjust or inequitable determination.
The Applicant provides no evidence in relation to s 117(1)(b):
“Matters as to which court must be satisfied before making order
Court may make departure order
(1) Where:
…
(b) the court is satisfied:
(i) that one or more of the grounds for departure mentioned in subsection (2) exists or exist; and
(ii) that it would be:
(A) just and equitable as regards the child, the carer entitled to child support and the liable parent; and
(B) otherwise proper;
to make a particular order under this Division;
the court may make the order.”
Conclusion
I would not make a departure order on the basis of the evidence provided by the Applicant in the present case as he has not discharged the onus to prove his case.
Departure Prohibition Order
The Registrar submits with respect to the departure prohibition order at paragraph [38]-[41] of her written submissions:
“38. Order two seeks for the departure order to be made with the effect that the departure prohibition order (DPO can be lifted. It is not clear whether the Applicant is actually seeking for the Court to lift the DPO or merely stating that will be the consequence of the nil arrears.
39. Section 72Q of the Child Support (Registration & Collection) Act 1988 (Collection Act) provides that a person aggrieved by the making of a DPO may appeal to the Federal Court or the Federal Circuit Court against the making of the DPO. An appeal under s 72Q against the making of a DPO may, in its discretion, make an order setting aside the DPO or dismiss the appeal: s 72S.
40. An application to set aside a DPO is required to be made by way of a Notice of Appeal (Child Support) (NOA) filed in the General Federal Law registry of the Federal Circuit Court. The parties to those proceedings are the Applicant and Second Respondent only. The First Respondent should not be party to those proceedings. The NOA should contain grounds of appeal which explains the basis on which the order to set aside the DPO is sought.
41. The Registrar submits that the Application is therefore deficient as it has not been prepared on the correct form, it fails to specify the grounds on which the Applicant appeals the decision to issue the DPO and includes the First Respondent as a party to those proceedings. The Registrar contends that an application for leave under s111 should not be bought in conjunction with an appeal against the making of a DPO. This is because they are different causes of action with different parties and different avenues of appeal from any decision made (Manchester & Manchester [2011] FMCAfam 1215).”
I accept the Registrar’s submission in relation to the departure prohibition order.
Conclusion
Therefore, I will dismiss the Applicant’s Application in relation to child support.
I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of Judge Cassidy
Date: 22 March 2019
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