Halley and Wyatt
[2011] FMCAfam 278
•8 April 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HALLEY & WYATT | [2011] FMCAfam 278 |
| CHILD SUPPORT – Arrears of child support – application for enforcement of arrears – where respondent sought to appeal against decision of the Social Security Appeals Tribunal – Child Support Registrar a necessary party – where Child Support Registrar not joined as a party – time limit for instituting appeal – where application for appeal out of time – where respondent sought merits review of SSAT design – merits review not available – appeal under Child Support (Registration and Collection) Act 1988 (Cth) only available on a question of law. |
| Child Support (Registration and Collection) Act 1988 (Cth), ss.101, 103X, 110B, 110C Child Support (Assessment) Act 1989 (Cth), s.117 Family Law Act 1975 (Cth), s.117B Federal Magistrates Court Rules 2001, r.25A.06 |
| Wingrove & Wyatt [2007] FMCAfam 449 Agrippa & Horton (SSAT Appeal) [2010] FMCAfam 1144 PJ & Child Support Registrar [2007] FMCAfam 829; (2007) 38 Fam LR 31 |
| Applicant: | MS HALLEY |
| Respondent: | MR WYATT |
| File Number: | SYC 629 of 2010 |
| Judgment of: | Scarlett FM |
| Hearing date: | 8 June 2010 |
| Date of Last Submission: | 8 June 2010 |
| Delivered at: | Sydney |
| Delivered on: | 8 April 2011 |
REPRESENTATION
| The Applicant: | In person |
| The Respondent: | In person |
ORDERS
The respondent is to pay to the applicant by way of arrears of child support the sum of $5,031.93 to be paid directly to the applicant or through the Child Support Agency at the respondent’s election as follows:
(a)As to the sum of $1000.00 within fourteen (14) days of the date of these Orders;
(b)Thereafter, by instalments of $200.00 per week, the first of such instalments to be paid within twenty-eight (28) days of the date of these Orders and weekly thereafter.
The respondent is to pay to the applicant interest calculated at the rate eight per cent (8%) per annum on all amounts unpaid within one (1) month of the date of these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Halley & Wyatt is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 629 of 2010
| MS HALLEY |
Applicant
And
| MR WYATT |
Respondent
REASONS FOR JUDGMENT
Application
This is an application by the mother of three children for enforcement of arrears of child support in the amount of $5031.93. She has also filed an Enforcement Summons seeking payment of that same amount.
The respondent has filed a response in which he seeks a stay of the enforcement summons on an interim basis. He seeks final orders:
1. That the determination of the SSAT be set aside.
2. The resulting child support arrears be set at $0.00.
The Respondent sets out in his response the reasons why he claims that the SSAT determination should be set aside. He relies on the following grounds:
i)The Child Support Agency and the SSAT erred when concluding the salary for various periods for the applicant, Mr Wyatt;
ii)The CSA and the SSAT did not take into account the increasing borrowings over the period June 2008 to December 2008, shown in credit card statement; and
iii)Ms Halley withheld information about overseas trips and spending during the disputed period;
iv)That the arrears are caused by administrative error by the Child Support Agency; and
v)The SSAT failed to adequately assess the financial stress and equity in the decision based on debts of both parties in light of their rejection of Ms Halley’s financial statement.
Background
The parties were married but separated in February 2002.
The applicant was born [in] 1973. The respondent was born [in] 1967.
There are three children of the marriage:
[W] was born [in] 1998.
[X] was born [in] 1999.
[Y] was born [in] 2000.
The children live with the applicant, their mother.
The respondent’s liability to pay child support commenced in 2002. He was assessed to pay the sum of $439.00 per week from 18th March 2002, although this amount was later reduced. On 12th August 2002 the applicant elected to cease having the Child Support Agency collect child support.
Parenting orders were made by consent in December 2003. Orders for division of property and spousal maintenance were made by consent on 5th November 2004.
The applicant formed a relationship with Mr Halley in February 2005. They later married.
The applicant re-registered child support for collection by the Child Support Agency on 7th November 2005.
The respondent applied for an administrative departure from child support on 2nd March 2006 and the Child Support Agency issued an amended assessment.
The applicant elects for the Child Support Agency to collect the arrears of child support.
The applicant applied to this Court for enforcement of arrears of child support and on 17th May 2007 Henderson FM made the following orders:
(1) The husband pay by way of arrears of child support to the wife the sum of $10,440.00. Such sum to be paid directly or through the agency at his election, by paying the sum of $200.00 per week, with first such payment to be made on 25 May 2007 until the amount is paid in full.
(2) I discharge all arrears of child support owing as at today’s date in the sum of $11,325 determined in the Review Determination dated 5 April 2007 by the Agency.[1]
[1] Wingrove & Wyatt [2007] FMCAfam 449
On 22nd May 2009 a decision was made by an objections officer to allow in part an objection by the applicant and set the respondent’s adjusted taxable income at $130,000.00 for the period 1 February 2009 to 31 January 2010. The respondent appealed to the Social Security Appeals Tribunal.
On 12th November 2009 the Tribunal set aside the decision under review and substituted a new decision that the respondent’s adjusted taxable is set at $130, 000.00 from 1 February 2009 to 30 September 2010. As the Tribunal stated, that meant that the respondent’s appeal was not successful.
The Tribunal decision stated that the date of despatch was
25 November 2009.[2]
[2] A copy of the SSAT decision forms Annexure “A” to the applicant’s affidavit affirmed 3 February 2010
The applicant commenced these proceedings by filing an application, a financial statement and a supporting affidavit on 3rd February 2010. She later filed an Enforcement Summons on 19th April 2010.
The respondent filed a response, a supporting affidavit and a financial statement on 23rd April 2010.
Evidence
The applicant deposed that:
a)
the respondent commenced full time employment on
4th November 2009;[3]
b)he has been self employed and is the director of a company called [omitted], whilst paying money paid to him into the bank account of his fiancée Ms N;
c)the respondent has consistently earned in excess of $130,000.00 per year over the previous five years;
d)the respondent’s fiancée earns $800.00 per week and his only liability is $200.00 per week for rent;
e)Ms N has purchased a home, owns a motor vehicle that the respondent drives and owns two motor bikes;
f)when the applicant and the respondent were before the court in 2007 the respondent’s bank statements showed large sums of money being transferred from his company account into Ms N’s personal bank account;
g)the actual amount of child support that the respondent should have been paying from 1st February to 2nd June 2009 should have been $501.21 per week;
h)the respondent has told the applicant that “he will not pay as he has not got any money and does not agree with the decision”;[4] and
i)she is currently suffering extreme financial hardship.
[3] Affidavit of Ms Halley 3.2.2010 at paragraph [4]
[4] Affidavit of Ms Halley 3.2.201 at [15]
The applicant was not required to be cross-examined on her affidavit.
The respondent deposed in his affidavit sworn or affirmed on 23rd April 2010 that:
a)In September 2008 he applied to the Child Support Agency for a change to his assessment for the period August to December 2008;
b)He was employed on a permanent basis in November 2008 at a salary of $130,000.00;
c)On 19th February 2009 he was notified by the Child support Agency that his child support liability was set at $780.50 from 1st December 2008 to 12th February 2009 and would increase to $944.83 from 13th February 2009;
d)The Child support Agency assessed him as having an income of $84,000.00 although it was less than $53,000.00;
e)The applicant objected to that decision;
f)The Child Support Agency reviewed the decision and handed down a new assessment in May 2009 backdating his assessment to the beguiling of February 2009;
g)On 22nd May 2009 the Child Support Agency notified him that his liability had changed and the payments were set at $2171.92 from 13th February 2009 to 31st January 2010;
h)He appealed to the Social Security Appeals Tribunal in august 2009;
i)The SSAT handed down its decision in November 2009;
j)The respondent believes that the SSAT decision is “grossly incorrect”;[5]
k)He wrote to the SSAT in December 2009 “to point out the error in their decision”[6] but did not receive a reply;
l)In February 2008, 2009 an d2010 he paid over half of the children’s school fees and over $1500.00 of other tuition fees;
m)In October 2009 and 2010 he paid for his daughters’ school excursions;
n)Since June 2007 he has paid for private health insurance for his daughters and out of pocket expenses for dental and optical care;
o)He has over $50,000.00 in current liabilities stemming from his period of low income;
p)“The monies that Ms Halley is claiming for is for the period 1/2/2009 to 25/5/2009 and has nothing to do with her current financial circumstances;[7] and
q)In late 2009 the applicant divorced Mr Halley and received a “large financial settlement”[8] which she has not disclosed.
[5] Affidavit of Mr Wyatt 23.4.2010 at paragraph [13]
[6] Ibid at [16]
[7] Ibid at [24]
[8] Ibid at [25]
The respondent annexed to his affidavit:
a)Child Support Assessment issued 17 February 2009;
b)Child Support Assessment issued 22 May 2009;
c)New Child Support Assessment issued 21 December 2009;
d)A document headed Term 3 Bulk Payment Advice;
e)An invoice from [omitted] Dental Centre for the child [W];
f)A copy of the Reasons for Judgment of Henderson FM in Wingrove & Wyatt.[9]
[9] [2007] FMCAfam 449
In cross-examination by the applicant, the respondent said that his fiancée earned $800.00 per week and that they kept their finances separate. She lent him the sum of $83,000.00 to pay off a credit card debt. He said he was paying rent of $575.00 for two weeks, which he denied was excessive.
The respondent then proceeded to say why he believed that the Social Security Appeals Tribunal had made factual errors.
Submissions
The applicant submitted that she was a person in severe hardship, which is why she had to move back in with her parents. She said she still owed $3000.00 in rent after signing over her bond. She also submitted that the respondent constantly had a credit card debt.
The applicant further submitted that the child support assessment was handed down in 2008. The SSAT did not apply the new figures for three months. In her view, the SSAT was more than generous in its decision.
She submitted that rents for houses within ten kilometres of her children’s school were “astronomical”. When she did move in with
Mr Halley the respondent stopped paying child support.
The respondent submitted that the SSAT found the applicant’s financial statement to be unreliable. He said that her financial statement filed in this matter was also unreliable, noting that:
a)She claims for a car loan but has no car;
b)She appears to have no furniture; and
c)Her outgoings are more than double her income.
The respondent stated that the applicant, whilst claiming to be in financial hardship, had travelled to Europe and the United States of America in December 2009. The children had stayed with her mother.
Further, he submitted that the Child Support Agency had made errors when it came to the conclusion that his income was low, more than it thought it would be or should be. He queried whether the child support assessment handed down on 22nd May 2009 was fair and just in regard to the prior six months period.
The respondent submitted that the Court should have regard to the provisions of subsection 117(4)(b) of the Child Support (Assessment) Act 1989, which requires the Court to be satisfied that the proper needs of the children are met. He said that the children’s needs were being met by the money that was being paid (by him).
The respondent further claimed that he would suffer hardship if he were required to pay the amount claimed by the applicant. He conceded that the applicant was in a stressed financial situation but he provided assistance to the children.
He submitted that the child support debt related to the May 2009 period. The child support liability arose from an error by the Child Support Agency, he submitted. He had put that argument to the Social Security appeals Tribunal. He further submitted that the SSAT backdated the liability from May to February, which created the liability for the arrears.
In reply, the applicant stated that she had no credit cards and had lost her credit rating. The SSAT did no require her to supply bank statements. She said she sold the car, a Toyota Kluger, for $18,000.00 and paid off the car loan of $15,000.00. She used the balance of $3000.00 to go to Thailand because she was suffering depression. Further, she stated that the holiday in the USA was a fully paid holiday provided by Mr Halley. She only paid about $500.00 for the holiday.
The applicant reiterated that the respondent had been given three months grace by the Social Security appeals Tribunal. In her view the SSAT was more than fair.
Conclusions
The respondent has chosen to defend the application by seeking to:
a)
revisit the decision of the Child Support Agency made on
22nd May 2009; and
b)appeal against the decision of the Social Security Appeals Tribunal.
The decision of the Child Support Agency made on 22nd May 2009 has already been the subject of an appeal. It was heard by the Social Security Appeals Tribunal on 3rd September and 12th November 2009. the decision was made on 12th November and despatched on
25th November 2009.
In certain circumstances a person can appeal to the Federal Magistrates Court on a question of law from a decision of the Social Security Appeals Tribunal (see Child Support (Regulation and Collection) Act 1988, s.110B). The Child Support Registrar is a necessary party to the appeal (ss.101 and 110D; Agrippa & Horton (SSAT Appeal)[10] at [2]).
[10] [2010] FMCAfam 1144
The Child Support Registrar was a party to the appeal before the Social Security Appeals Tribunal. Section 101(1) of the Act provides:
The parties to a review under this Part are:
(a) the applicant; and
(b) the Registrar; and
(c) any other person who was entitled to apply for review of the decision under section 89; and
(d) any other person who has been made a party to the review under subsection (4).
Similarly, section 110D provides that:
The parties to a proceeding under this Subdivision are the people who were the parties to the proceeding before the SSAT when the SSAT made the relevant decision.
As the Child Support Registrar was a party to the appeal, it follows that the Registrar should have been joined as a party to this proceeding by the respondent. There is no evidence that this was done or that the Child Support Registrar was made aware of the respondent’s intention.
This error would be sufficient for the Court to find that the response was not competent, or that the matter should not proceed until the Registrar had been joined.
However, the respondent faces a more serious problem in that the application in the response to appeal against the decision of the SSAT appears to be out of time. Section 110C provides that there are time limits for instituting appeals. Subsection 110C(1) provides:
An appeal by a person under this Division must be instituted in a court:
(a) within:
(i) the time prescribed by the applicable Rules of Court; or
(ii) such further time as is allowed under the applicable Rules of Court.
The time prescribed by subrule 25A.06(2) for filing an appeal from a decision of the SSAT within 28 days of receiving a written statement of reasons for the decision under subsection 103X(3) or (5) of the Child Support (Registration and Collection) Act.
Section 103X of the Act requires the SSAT to give written notice to the parties of the decision within 14 days.
Subsection 103X(3) requires the SSAT to give the parties written notice that sets out the reasons for the decision, the findings on any material questions of fact and refers to evidence or other material on which the findings of fact are based within 14 days after making the decision.
A party may make a request under s.103X(4) within 14 days after the notice of the decision was given, in which case the SSAT must comply with the request within 14 days after it receives the request.
The SSAT decision was made on 12th November 2009. The statement of reasons for decision was despatched on 25th November 2009.
The response, which sought, in effect, to appeal against the decision of the SSAT, was not filed until 23rd April 2010. It is clearly out of time. The application for appeal was not made until more than 28 days had elapsed.
The respondent did not apply to the Court for an extension of time under Rule 25A.06. Consequently the purported appeal against the SSAT decision is not competent as it is out of time.
It is also noteworthy that the response sought to cavil with the SSAT’s factual findings. A review on the merits is not available in an appeal from the SSAT under s.110B. I note the decision of Riethmuller FM in PJ & Child Support Registrar[11] where his Honour said at [38]:
The only right of review of a decision of the SSAT is an appeal ‘on the question of law’ to the courts…Most significantly, such an appeal does not allow for a review on the merits. As a result, it is important for the Tribunal to provide appropriate reasons.
[11] [2007] FMCAfam 829; (2007) 38 Fam LR 31
If follows that the response filed on 23rd April 2010 must fail.
The respondent did not challenge the applicant’s evidence by way of cross-examination. Therefore, the applicant’s evidence stands.
On the other hand, the applicant cross-examined the respondent at some length and in some detail.
As Henderson FM held in the earlier proceedings between the parties (Wingrove & Wyatt)[12],
This is an enforcement summons and as such is a discretionary matter. I am under no obligation to agree with the wife’s application or the husband’s application. It is a matter where in the exercise of my discretion I must have regard to all the relevant facts surrounding the matter as well as the parties’ evidence and my assessment of their evidence.
The exercise of the discretion encompasses a wide field. I must determine whether the orders contended for by each of the parties are just and equitable, proper, appropriate, in accordance with law, and reasonably able to be enforced.[13]
[12] supra
[13] [2007] FMCAfam 449 at [53]-[54]
The applicant has annexed to her affidavit copies of her bank statements showing payments by the respondent into her account between 6th January 2009 and 3rd June 2009. Until 17th February 2009 the amount of $179.50 was being paid in each week. After that date, the payments increased to $217.29 each week. On 3rd June 2009 a lump sum of $2171.92 was paid and the applicant has made the notation beside that transaction “starts paying the correct amount”.
In my view, the amount of $5031.93 is properly payable by way of arrears and there does not appear to be any reason why it should not be paid.
The next matter to be decided is the manner in which the amount outstanding should be paid. The applicant in her application seeks payment of a lump sum within 7 working days.
The respondent’s financial statement does not disclose any fund from which an amount of $5031.93 can be paid immediately. The respondent discloses a bank account with a balance of $900.00 and an investment with the ANZ Bank in the sum of $1000.00.
The evidence is that the respondent is in permanent employment at a gross salary of $130,000.00. He is living with fiancée who earns an average weekly amount of $950.00, according to the respondent’s financial statement.
It would appear that the reason why the respondent did not pay the amount of arrears was because he did not agree with the SSAT’s decision. That is not a reason not to pay.
The respondent also claimed that he did not have the money. Whilst there is no evidence that he has a fund from which the arrears can be drawn in one lump sum, I am satisfied that he has a regular income from which payments by instalments can be made.
The respondent should make a lump sum payment of $1000.00 within 14 days. Thereafter, he should pay instalments of $200.00 per week.
I am also of the view that interest should accrue on unpaid amounts. Rule 22.01 provides that the rate of interest payable is the rate prescribed by the Family Law Rules for interest under s.117B of the Family Law Act 1975. The Court may order that interest be paid at another rate, and I propose to order that interest be paid at the rate of 8% on all amounts outstanding after one month from the date of these Orders.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 8 April 2011
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