Harris & Ellis - [2011] FamCAFC 90

FAMILY COURT OF AUSTRALIA

HARRIS & ELLIS

[2011] FamCAFC 90

FAMILY LAW - APPEAL – CHILD SUPPORT – Where an order was made requiring the mother to return to the Child Support Agency to seek departure from child support assessments – Where proceedings for other orders were pending before the Court at the same time as the mother's application for a departure order - Whether the Magistrate erred in concluding the mother needed leave to pursue her application for departure orders – Leave was not required as the mother’s application was made prior to the 2006 amendments to the Child Support (Assessment) Act 1989 (Cth) – Whether the Magistrate erred in concluding that the Court did not have jurisdiction to deal with the two most recent child support assessments – The Magistrate erred in considering that the 18 month limitation period applied to the mother’s application – The mother's application was properly before the Court and the Magistrate should have dealt with it – Appeal allowed – Matter remitted to the Magistrates Court of Western Australia for determination

Child Support (Adoption of Laws) Amendment Act 2007 (WA)
Child Support (Assessment) Act 1989 (Cth)
Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth)
Child Support (Registration and Collection) Act 1988 (Cth)

APPELLANT:

Ms Harris

RESPONDENT:

Mr Ellis

FILE NUMBER:

PTW

463

2004

APPEAL NUMBER:

2010

DATE DELIVERED:

15 April 2011

PLACE DELIVERED:

Perth

PLACE HEARD:

Perth

JUDGMENT OF:

Thackray J

HEARING DATE:

29 October 2010

LOWER COURT JURISDICTION:

Magistrates Court of Western Australia

LOWER COURT JUDGMENT DATE:

25 January 2010

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

In person

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

The appellant have leave to appeal paragraph 6 of the orders of Magistrate Fleming made in the Magistrates Court of Western Australia on 25 January 2010.
The appeal be allowed.
Paragraph 6 of the orders made by Magistrate Fleming on 25 January 2010 be set aside.
The amended application filed by the appellant on 22 December 2006, insofar as it deals with child support issues, be remitted for hearing by the Magistrates Court of Western Australia.
There be no order for costs in relation to the appeal.
The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by her in relation to the appeal.
The Court grants the appellant a costs certificate pursuant to the provisions of s 8 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of any costs incurred by the appellant in relation to the rehearing.

IT IS NOTED that publication of this judgment under the pseudonym Harris & Ellis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 8L of 2010
File Number: PTW 463 of 2004

Ms Harris

Appellant

And

Mr Ellis

Respondent

REASONS FOR JUDGMENT

This appeal concerns support of the child K (8). The mother has been trying for years to persuade the Child Support Agency to direct the father to contribute to K’s upkeep at the level she considers appropriate.
The mother has now appealed against orders made in the Magistrates Court of Western Australia by Magistrate Fleming on 25 January 2010 which require her to go back to the Agency to ask again for amendment of assessments concerning K’s support.
The father took no part in the appeal, having lost interest in the proceedings prior to the hearing before the Magistrate.

Background

The mother and father lived in an “on and off relationship” until their final separation in September 2003. K, who was born in February 2003, is the only child of the relationship.
In September 2004, the mother commenced proceedings in the Family Court of Western Australia for parenting and property settlement orders. She also sought “a sum to be determined by the Court” both in relation to child support and spousal maintenance.
The mother amended her application on 22 December 2006, seeking more specific orders in relation to support of K, including an order for departure from all child support assessments since October 2005.
The Magistrate described the proceedings as having had a “tortuous transition” through the Court. They did not come on for hearing until 9 September 2009, by which time the mother had filed 14 affidavits. By then, the father was not paying maintenance for the mother as ordered by the Court, nor was he paying any child support as assessed by the Child Support Agency (“the Agency”).
Magistrate Fleming published his reasons on 29 October 2009, but his orders were not formally made until 25 January 2010. The mother obtained the parenting orders she sought. The father was also ordered to pay her $10,000 by way of property settlement, and $14,100 by way of arrears of “spousal” maintenance. The child support orders that are the subject of this appeal were made at the same time.

The orders appealed

The Magistrate’s orders regarding child support were as follows:
6Pursuant to Section 111/112 of the Child Support (Assessment) Act:
(a)pursuant to Section 112(4) the Applicant have leave to proceed under Section 111 of the said Act for variation or departure in respect of the following child support assessments:
(i)28 October 2003 to 2 November 2004 - $318.67 per month;
(ii)1 December 2004 to 27 January 2005 - $512.75 per month;
(iii)28 January 2005 to 30 November 2005 - $512.75 per month;
(iv)1 December 2005 to 3 January 2006 - $111.67 per month;
(v)4 January 2006 to 5 January 2006 - $21,67 [sic] per month;
(vi)6 January 2006 to 13 February 2006 - $21.67 per month;
(vii)14 February 2006 to 28 February 2007 - $729.75 per month; and
(viii)1 March 2007 to 31 May 2008 - $407.50 per month.
(b)pursuant to Section 112(1) of the said Act the aforementioned assessments be given leave to be referred to a Registrar to make a determination under Section 98S of the Child Support (Assessment) Act.
(c) in relation to the following assessments:
(ix)1 June 2008 to 30 June 2008 - $435.42 per month; and
(x)1 July 2008 to 31 August 2009 - $366.42 per month
The Court determines that at this time the Court has no jurisdiction to hear those applications.

The Magistrate’s reasons for decision

Magistrate Fleming gave relatively brief reasons for making the orders which are the subject of this appeal. They are set out in full below:
43In her affidavit filed 19 August 2009 at paragraph 13 the Applicant has sought to vary the following child support assessments:
(a)       28 October 2003 to 2 November 2004 - $318.67 per month
(b)      1 December 2004 to 27 January 2005 - $512.75 per month
(c)28 January 2005 to 30 November 2005 - $512.75 per month
(d)      1 December 2005 to 3 January 2006 - $111.67 per month
(e)      4 January 2006 to 5 January 2006 - $21.67 per month
(f)       6 January 2006 to 13 February 2006 - $21.67 per month
(g)14 February 2006 to 28 February 2007 - $729.75 per month
(h)      1 March 2007 to 31 May 2008 - $407.50 per month
(i)       1 June 2008 to 30 June 2008 - $435.42 per month
(j)       1 July 2008 to 31 August 2009 - $366.42 per month
44In her oral testimony the Applicant stated that she had only sought to vary one of the above assessments through the Child Support Agency and that was the original assessment 28 October 2003 to 2 November 2004.
45Under Section 111 of the Child Support (Assessment) Act the Court can deal with or alternatively authorise a Registrar of the Child Support Agency to determine or vary a child support assessment that is more than 18 months old from the date of the making of an application for such variation. Leave, however, is required to be given by the Court so as to enable this assessment to take place. The requirements for leave are set out in Section 112 of the said Act and empowers the Court to, if leave is granted, either determine or vary the matter or refer the matter back to the Child Support Agency for determination. In this case the initial application to this Court was made on 29 April 2004 so at that time there was only the original assessment in place. That assessment at that time was not in excess of 18 months old. Under the then legislation this did not pose any problems and a variation could be sought.
46The amended application was filed on 22 December 2006 and further departure orders were sought from October 2005. That would then mean at that time the first three assessments that have been set out in the relevant paragraph of the affidavit would have been over 18 months old from the date of that amended application.
47The Court considers that, notwithstanding that the present legislation was not in place when both the original and amended application were filed, and given that there appears to have been no transitional provisions in place in respect of the legislation that the present law must prevail notwithstanding.
48The orders sought in the Applicant’s affidavit of 19 August 2009 seeks further variations to later assessments. If the Court considers that the current application before the Court is, in fact, the application contained in the affidavit that seeks to vary various assessments up to date then the Court must conclude that the date of this application, for the purposes of Section 111 of the Child Support (Assessment) Act, should be the date of the filing of the affidavit (the application) which is 19 August 2009.
49On that basis any assessment older than 19 February 2008 (that is 18 months from the date of the deemed application) then leave is required to enable any variation to occur pursuant to Section 112 of the said Act.
50Insofar as the last two assessments are concerned, that is 1 June 2008 – 30 June 2008 and 1 July 2008 – 31 August 2009 these are matters that are within an 18 month period and on that basis this Court has no jurisdiction to deal with the application at this time. These are matters that will, for reasons that will be mentioned later in this decision, be referred back to the Child Support Agency to deal with any review. In the event that the Applicant is not satisfied with that review then the normal procedure to objection would take place within the Agency and again if the matter is to go further then it would proceed to the Social Security Appeal Tribunal. In respect of the assessments (a) to (h) as set out in the affidavit and considering whether leave be granted to enable a variation to take place the Court finds as follows with reference to the matters raised under Section 112(4) of the said Act:
(a)Any responsibility and reason for the delay. The Applicant has been engrossed in these proceedings since 2004. She argues that at that time there was no provision in respect of this 18 month period and she had hoped that the matter would proceed through the Court and be dealt with in an expeditious manner.
For various reasons this matter has been particularly slow moving and on that basis she says that she is not responsible for any delays.
(b)Hardship to the Applicant. The Applicant argues that if she were not given leave to vary these assessments then she would suffer extreme hardship because she argues that the Respondent has not declared his proper income and, therefore, not paid the proper amount in child support. He has not filed tax returns in recent years to enable the Agency to properly evaluate his contribution for the child.
(c)Hardship to the other Party. The Respondent has chosen not to participate in these proceedings and is not paying child support. The Court proposes to make no finding in this regard as there is no evidence in respect of this factor.
51The Court finds that the Applicant’s position in respect of delay is a fair explanation. Similarly there is no doubt that she would suffer hardship if she were not allowed to properly pursue these matters. Accordingly leave will be granted to enable the assessments to be re-evaluated.
52Given the fact that the purpose of the child support legislation is to ensure that the majority of persons within the community should be dealt with in a similar manner, that is, that the matter should proceed through the various stages of the Child Support Agency before going to a higher tribunal, the Court is of the view that these matters should be referred back to the Child Support Agency to enable a Registrar to make determinations on these assessments pursuant to Section 98S of the Child Support (Assessment) Act. This is in relation to items (a) to (h) of the assessments listed in the Applicant’s affidavit. This is especially so given that the final two items (i) and (j) must be assessed in any event by a Registrar. It would therefore, in the Court’s view, be convenient for all applications to be dealt with by a Registrar of the Child Support Agency.
53Given the circumstances of this case I do not propose to proceed with the private enforcement of child support until such time as a final determination is made as to the Respondent’s proper financial contribution.

The Grounds of Appeal

The mother’s Notice of Appeal was filed on 23 June 2010, having obtained an extension of time in which to appeal. She relied upon the following grounds (all errors are in the original):
1.That the court has not considered all the circumstances of this matter in making their decision.
2.Child Support Assessment Act S116(1)b(i)(ii) allows for departure notices to be heard by the family court in special circumstances.
3.The act also allows for departure notices to be heard on current assessments and that no leave for departure notice is required for current assessments not withstanding that they have not been through a change of assessment.
4.Powers given under S116 of the Child Support Assessment Act allow the Family court to hear departure notices where the matters are too complicated for the child support agency to deal with.
5.This matter is most likely to be too complicated to be dealt with by the Child support registra for numerous reasons including:
- the amount of time the assessments cover,
- the measures taken by the respondent to conceal their true income from the Child Support Agency and the Family Court
- that a number of assessments under the application have been dealt with already by the Child Support Agency through Change of assessment and objection however all the respondents income has not been considered by the Child Support Agency,
- the Child Support Agency has already made numerous errors with regard to this matter
- a number of Child support Assessments are based on provincial income which has not used the most current income information the Child Support Agency has for the respondent.
- the amount of income documentation involved
6.All of the required documentation is already before the family court and the time and money required to reproduce this documentation for the Child Support Agency would disadvantage the applicant.
7.Some documentation is held in subpoena by the family court.
8.That having the matter refered to the Child Support Registra would unfairly disadvantage the applicant due to the amount of documentation to be reproduced and the time and money involved, that many of the decisions already made by the Child Support Agency the applicant believes to be in error.
9.These decisions should be independently reviewed by the Family court.

Application to introduce further evidence

The mother sought leave to adduce further evidence on the hearing of the appeal. Essentially, that evidence comprised various documents attached to her affidavit filed in support of her application for leave.
Paragraphs 3 to 11 of the mother’s affidavit are set out below, not only because they explain why she wanted to introduce further evidence, but also because they contain the gravamen of her complaints about the way the Magistrate dealt with her application for child support orders (all errors are in the original):
3.The applicant suggests that the documents merely support claims already made in affidavits before the court for the hearing of the Appeal, or were not available at the time of the filing final affidavits in August 2009.
4.Also some documents support the case that the family court has jurisdiction to hear the matters before the court which was not considered an issue by the applicant or raised by the court until the time of the trial.
5.At the time that the applicant filed the Form 1 application in September 2004 and the amended form 1 filed in December 2006 legislation was such that these applications should have been heard in the family court.
6.Current legislation allows for Child Support matters to be heard when the there are current family court proceedings in action, which was the case at the time the application was before the court.
7.Current legislation allows that when an objection to a decision has been disallowed by the child support agency and the applicant disagrees with the decision they have liberty to apply to a court to review the decision.
8.The applicant has detailed extensively in affidavits before the court the extent at which the respondent has gone to conceal their true earning capacity from the child support agency and the family court and the processes the applicant has followed to object to decisions made by the Child Support Agency regarding the respondent’s income.
9.The applicant detailed in affidavits that the child support agency had disallowed objections to the change of assessment and underestimates of income made by the respondent, even after being advised that the family court found that the financial transactions between the respondent and [D] Pty and the respondent were not above board.
10.The applicant has detailed in affidavits the number of errors that have been made by the child support agency in relation to the management and assessment of child support since the original application for child support was made and some of the documents support this evidence.
11.The applicant then suggests that these documents supports evidence previously stated in affidavits and supports the appeal that:
a.The family court has jurisdiction over the matters of child support assessment made under the applications filed in September 2004 and December 2006.
b.That it is in the best interest of the applicant to have the matter heard before the family court due to:
iFraudulent income estimates made by the respondent that have been accepted by the child support agency, even after objections have been made and decisions made by the court discounting the income
iiOngoing attempts by the respondent to hide their true income earnings and capacity to earn.
iiiContinuous errors made by the child support agency in the application of the correct income and provisional income estimates
ivThe complicated nature of the case due to changes of assessment, income estimates lodged by the responded, objections and reviews of income estimates
vThe respondent not lodging a tax return since the 2005/2006 financial year
viThe respondent not participating in proceedings
viiThe length of time these proceedings have been before the court

The mother’s affidavit went on to detail the further documents on which she wished to rely. Many of these were documents passing between the Agency and the parents and, to that extent, could not be regarded as being contentious.
As I will explain, the Magistrate made a number of errors when dealing with the matter. This can be established by reference to the material before the Magistrate. I nevertheless propose to admit the further evidence as it completes the documentary record of the mother’s dealings with the Agency (and refers to one review of an assessment to which reference had not been made in the original material).

The history of objections to assessments

The mother’s affidavit evidence established that she had been involved in prolonged efforts to persuade the Agency to require the father to make a greater contribution to K’s financial support.
His Honour did not, in his reasons, engage in any consideration of the detail of the mother’s affidavit evidence. Instead, he recorded that in her oral testimony the mother had said she had only sought to vary one assessment (namely the original assessment for the period from October 2003 to November 2004). In fact, the transcript shows that the mother gave conflicting information on this topic when responding to questions from his Honour. It is unnecessary to record the details.
His Honour failed to record that the mother had said in her affidavit evidence that she had objected to the assessments covering the periods from December 2005 to February 2007, and from March 2007 to May 2008. She had also attached to her affidavit letters from the Agency, dated 23 January 2006 and 27 March 2006, in which she was informed that her objections had been disallowed. The letters advised that she could apply to a court if she considered the decisions were wrong.
The further evidence I have allowed to be introduced establishes that the mother had unsuccessfully challenged another assessment in December 2004. On this occasion the mother was also informed by the Agency that she could apply to a court if she considered the decision was wrong.

The law

There are two ways to seek a departure from an administrative assessment of child support under the Child Support (Assessment) Act 1989 (Cth) (“the Act”). The Child Support Registrar can make a departure determination under Part 6A (on the application of the payer or the payee, or on the Registrar’s own motion). Alternatively, on the application of the payer or the payee, certain courts can make a departure order pursuant to Division 4 of Part 7.
The Registrar may make a departure determination, and a court may make a departure order, if satisfied that one of the grounds for departure referred to in s 117(2) of the Act exist. The orders that may be made by a court on hearing an application for a departure order are set out in s 118 of the Act.
The procedure for seeking a departure determination from the Registrar under Part 6A of the Act is comparatively simple. The Registrar can, however, refuse to make a determination if the issues are “too complex”, in which case the Registrar may recommend that an application be made to a court for a departure order. This is the effect of s 98E (and see also the similar provision in s 98R which concerns an application for a departure determination initiated on the Registrar’s own motion).
There have always been limitations on the circumstances in which a party can apply to a court for a departure order. Those limitations were significantly amended by the Child Support Legislation Amendment (Reform of the Child Support Scheme – New Formula and Other Measures) Act 2006 (Cth) (“the Reform Act”).
The major difference following the commencement of the amendments made by the Reform Act was the requirement for a party aggrieved by a decision of the Agency to seek a review from the Social Security Appeals Tribunal (“the SSAT”), rather than applying to a court for a departure order. A party aggrieved by a decision of the SSAT may appeal to a court, but the right of appeal is restricted to questions of law: Child Support (Registration and Collection) Act 1988 (Cth) s 89 and s 110B.
At the time the mother commenced (and amended) her application to the Court concerning child support, the amendments made by the Reform Act had not come into operation. At that time the limitations on making applications for a departure order were to be found in s 115, which was in the following terms (my emphasis added):
115 Cases to which Division applies
This Division [i.e. Division 4 of Part 7 which relates to departure orders] applies to an administrative assessment of child support in relation to a child in the following cases:
(a) where the child support is for a period up to and including the period ending on 30 June 1992 and the carer entitled to child support or the liable parent wants a court having jurisdiction under this Act to make an order having the effect that the provisions of this Act will be departed from in relation to the child in the special circumstances of the case; or
(b) where the child support is for a period beginning on or after 1 July 1992 and the Registrar has, on application made under section 98B, either made or refused to make a determination under Part 6A in relation to the child; or
(c) where the child support is for a period beginning on or after 1 July 1992 and:
(i) the carer entitled to child support or the liable parent is party to an application pending in a court having jurisdiction under this Act; and
(ii) the court is satisfied that it would be in the interest of the carer and the parent for the court to consider, at the same time as it hears that application, whether an order should be made having the effect that the provisions of this Act relating to administrative assessment of child support will be departed from in relation to the child in the special circumstances of the case; or
(d) where the child support is for a period beginning on or after:
(i) if a day has been prescribed under paragraph 5(2)(b) of the Child Support Legislation Amendment Act 1998 as the 1998-99 commencing day—that day; or
(ii) if no such day has been prescribed—1 July 1999;
and the administrative assessment was made under subsection 66(1). (notes omitted)
Following the commencement of the amendments made by the Reform Act, the limitations on making an application for a departure order are to be found in s 116 of the Act, which is expressed in the following terms (my emphasis added):
116     Application for order under Division
(1)A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a)      all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii)      an objection to the refusal has been lodged;
(iii)the Registrar has disallowed the objection; or
(aa)      all of the following apply:
(i) a decision has been made in respect of the administrative assessment;
(ii)      an objection to the decision has been lodged;
(iii) in making a decision on the objection, the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(ab) the [Social Security Appeals Tribunal] has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment; or
(b)      both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent—the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1). (notes omitted)
The mother asserts that both before and after the commencement of the amendments made by the Reform Act, she was entitled to apply to a court for a departure order. This is because when the Court was dealing with her child support application, it was also dealing with various other applications she had before the Court. In the case of the legislation in its pre-Reform Act form, the mother also says she was entitled to seek a departure order because the Registrar had made a determination under Part 6A of the Act in relation to objections she had made to administrative assessments.
The Reform Act made other amendments that Magistrate Fleming considered of significance. Until the commencement of the various amendments made by the Reform Act (which mostly came into effect on 1 January 2007), the legislation did not provide for a time period within which an aggrieved payer or payee had to apply for departure from an administrative assessment. This was a cause of much difficulty in cases where a parent sought to challenge assessments made in the distant past (see “In the Best Interests of Children – Reforming the Child Support Scheme”, Report of the Ministerial Taskforce on Child Support (May 2005), p 195).
The Reform Act dealt with this difficulty by imposing a time period within which challenges to assessments should ordinarily be made. If the challenge involves a request to vary the amount of support payable for a day that is more than 18 months before the date on which the challenge is formally made, the applicant must first obtain leave of a court. This is the effect of s 98S(3B) and s 118(2B) of the Act.
The provisions dealing with applications for leave to apply out of time are found in Division 3 of Part 7 of the Act. Section 111(1) provides that a liable parent or a carer entitled to child support may apply to a court for leave for the Registrar to make a departure determination, or for leave for a court to make a departure order, in respect of a day in a child support period, being a day that is more than 18 months (but less than 7 years) earlier than the day on which the application is made.
Section 112(1) provides that on an application being made under s 111, the court may grant leave for the Registrar to make a determination under s 98S, or it may grant leave for a court to make an order under s 118.
The circumstances in which a court may grant leave for an application to be made for a departure order are set out in s 112(2), which is in the following terms:
(2)The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
Section 112(3) provides that if the court is not satisfied it would be in the interest of the parties for the court to consider making a departure order under s 118 at the same time as it hears the application for leave under s 111, it may nevertheless grant leave for the Registrar to make a departure determination. In other words, having decided that the assessment can be challenged, but that it should not be challenged in a court, the matter is referred back to the Agency for the assessment to be reviewed.
In considering whether to grant leave to seek either a departure order or a departure determination, the court must have regard to specific matters set out in s 112(4) of the Act (which were addressed by the Magistrate in paragraph 50 of his reasons.)
The clear policy intention of the legislation is that the internal review/objection processes of the Agency are generally to be preferred over court based processes. Nevertheless, s 112(2) and s 116(1)(b) make clear that there are circumstances in which it will be in the interests of the parties for a court to deal with the dispute, even when the Agency’s internal objection procedures have not been utilised, because the court is, at the same time, already dealing with matters involving the parties.
I have mentioned that most of the amendments made by the Reform Act came into effect on 1 January 2007. This was not the case for ex nuptial children in Western Australia. Western Australia has not referred power to the Commonwealth to legislate in relation to child support for ex nuptial children, such as K. Amendments to the Commonwealth legislation only take effect upon the commencement of Western Australian legislation adopting the amendments. The Reform Act was adopted in Western Australia by the Child Support (Adoption of Laws) Amendment Act 2007 (WA). The provisions of that legislation relevant to this appeal did not come into effect until 1 November 2007.

The issues requiring determination on the appeal

Three main questions potentially arise for consideration in this appeal.
The first is whether the Magistrate was correct in concluding that the mother needed leave to pursue her application.
The second is whether his Honour was correct in concluding he did not have jurisdiction to deal with the two most recent assessments.
The third is whether his Honour was correct in believing there was some potential role for the SSAT in dealing with the mother’s concerns.

Was leave needed?

The mother first sought orders relating to child support when she applied for property settlement and parenting orders in 2004. On 22 December 2006, she filed an amended application, in which she was still seeking property settlement and parenting orders; however, she also set out more detailed orders relating to child support.
The child support orders sought in the mother’s amended application of December 2006 are set out below (all errors are in the original):
14.That there be a departure from the all child support assessments made since October 2005.
15.That the Family Court determine an appropriate amount (not less than $200/week) of child support from the period of October 2005.
16.The Child Support assessment be based on the respondent father’s earning capacity and additional non-taxable income received, the general needs and living expenses of the child [K], as well as costs of childcare and education, sporting and recreational costs (including swimming dancing and music), medical needs and other miscellaneous costs including toys, furniture and gifts.
17.That ongoing payments for child support are to be made fornightly into a bank account to be provided by the applicant mother
18.That a credit of $350 given to the respondent father for child support in April of 2004 be over turned by the Family Court.
19.That the respondent father be ordered to pay any backpay resulting from a reassessment of child support from October 2005.
20.Any backpay in child support that cannot be paid as a lump sum or by selling of assests, be paid at no less than $100 per week to be paid fortnightly.
21.That any future reassessments are to be determined by the Family Court.
22.The applicant mother be paid a sum to be derermined by the court in relation to child support.
On 19 August 2009, the mother filed an affidavit in support of her amended application. In paragraph 13, she set out a list of the “current child support assessments since separation”. These covered ten different periods (being the eight referred to in paragraph 6(a) of the Magistrate’s orders and the two in paragraph 6(c) of those orders).
It will be recalled that Magistrate Fleming dealt with the matter on the basis that the date of filing of the mother’s affidavit of 19 August 2009 should be treated as being the date of her application for leave pursuant to s 111 of the Act. The mother had not, in fact, sought leave; nevertheless, the Magistrate determined leave was needed to challenge “any assessment older than 19 February 2008 (that is 18 months from the date of the deemed application)”.
His Honour’s reason for taking this approach was that although when the mother actually made her original application to the Court, and at the time she amended her application seeking a departure order, she did not need leave of the Court, she nevertheless did need leave by the time the matter finally came before him, as the legislation had been amended in the meantime. In reaching his decision, his Honour found that “there appears to have been no transitional provisions in place in respect of the legislation…”.
His Honour clearly had the Reform Act in mind when referring to “the legislation”; however, he erred in concluding there were no transitional provisions. Item 42 of Part 2 of Schedule 4 of the Reform Act relevantly provided that the amendments made by items 11, 14 and 19 of Schedule 4 applied only in respect of “an application under section 116 of the Assessment Act after this item commences” (my emphasis added).
Items 11, 14 and 19 of Schedule 4 contained the amendments which imposed the 18 month limitation period and inserted the new Division 3 of Part 7 into the Act (which deals with the procedure for obtaining leave to apply in relation to assessments more than 18 months old). The mother’s application to the Court for child support was made, and amended, prior to the commencement of any of these provisions. They therefore did not apply to the mother’s application and she therefore did not need leave to proceed with her application.
The only question that might be thought to arise is whether different considerations applied to the mother’s challenges to the assessments that were issued after the provisions of the Reform Act came into operation in Western Australia. It could be argued that these could not be seen as properly challenged by the mother’s application, since they did not exist at the time she made (and subsequently amended) her application. If that is so, it might be thought that the mother needed to follow the Agency’s internal review processes first in seeking to challenge those assessments (and then go to the SSAT if aggrieved by the outcome).
I do not consider different considerations applied to the assessments that were issued after the Reform Act provisions came into operation. The mother’s amended application sought departure from “all child support assessments made since October 2005” and proposed that “any future reassessments are to be determined by the Family Court”. In my view, the application had both a retrospective and prospective operation. On the hearing of the mother’s application, it would be open to the Court to make an order departing from all of the assessments made to the date of the hearing. Indeed, pursuant to s 118, it would be open to the Court to make orders governing the level of child support to be paid in the future, past the date of operation of the most recent administrative assessment.
Even if I am wrong concerning the status of the mother’s challenge to the assessments issued after the commencement of the amendments made by the Reform Act, there could be no doubt that the proper application of s 116(1)(b) would result in the Court determining that it would be in the interests of the parties for all of the challenges to all of the assessments to be considered at the same time.

Did the Magistrate have jurisdiction to deal with the recent assessments?

It will be recalled that in his reasons the Magistrate found:
50.Insofar as the last two assessments are concerned, that is 1 June 2008 – 30 June 2008 and 1 July 2008 – 31 August 2009 these are matters that are within an 18 month period and on that basis this Court has no jurisdiction to deal with the application at this time. These are matters that will, for reasons that will be mentioned later in this decision, be referred back to the Child Support Agency to deal with any review.

As already indicated, his Honour erred in considering that the 18 month limitation period applied. Even if the time period did apply, his Honour was wrong to conclude that the court lacked jurisdiction to deal with the application for departure from the two most recent assessments. There is nothing in the legislation preventing a court from dealing with assessments for child support that “are within an 18 month time period”. All that the legislation does is require a party to seek leave of the court if they wish to challenge an assessment relating to payment of child support for a time that is outside that period.
Provided that one of the conditions laid down in s 116(1) is satisfied, the court does have the power to grant a departure order from an assessment relating to a period less than 18 months prior to the date of the application. It is true that most of the conditions prescribed by s 116(1) involve the payer or payee first utilising other avenues of objection/review; however, as I have indicated already, this is not the case in every instance.

Was there any role for the SSAT in these proceedings?

Given my earlier findings, it is not strictly necessary to consider this question.
It is sufficient to say that his Honour also erred in considering that the mother would be able to apply to the SSAT if she was aggrieved by the decision of the Agency following his decision to refer the matter back to the Agency. Putting to one side the fact that the Agency would presumably decide it was functus officio to the extent that the internal review/objection processes had already been exhausted, the SSAT would not be able to rule on the issues raised in the mother’s departure application. The transitional provisions of the Reform Act made clear that the amendments concerning the new role of the SSAT did not apply to any proceedings pending before a court under Part 7 of the Act immediately before the commencement of the relevant amendments.

Conclusion

His Honour made a series of errors in dealing with the mother’s application. He should have recognised that the application was governed by the law as it stood prior to the commencement of the amendments made by the Reform Act. The mother had been properly directed by the Agency to apply to a court. She had no other avenue of redress available. The fact she also had other proceedings before the Court at the same time merely provided an additional basis upon which the Court should have heard the application.

Orders

The mother required leave to appeal against the decision of the Magistrate. Given the various errors his Honour made, this is clearly a proper case for leave to be granted. I propose to grant leave to appeal and I will allow the appeal.
The mother did not seek that I determine the substantive application. The proper course is for the matter to be remitted to the Magistrates Court to be determined on its merits. Ordinarily, I would direct the matter be heard by a Magistrate other than Magistrate Fleming; however, that is not necessary as his Honour has now retired.
I am unaware of whether the mother has incurred any costs in the conduct of this appeal. If she has, I would be favourably inclined to grant her a costs certificate under the Federal Proceedings (Costs) Act 1981 (Cth). The mother may also incur additional costs on the rehearing of the matter and I would be favourably inclined to grant a certificate in relation to those costs as well. Costs certificates can only be granted on application being made. In case the mother does not attend when these reasons are delivered, I will give her an additional 28 days in which to apply for certificates to issue.

I certify that the preceding fifty nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Thackray delivered on 15 April 2011.

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